(1) WP. 298.1999 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 298 OF 1999 Murlidhar Rakhmaji Bhakare, Age : Major, Occu.: Agri., Resident of Sanvatsar, Taluka Kopergaon, Dist. Ahmednagar .. PETITIONER VERSUS 1. Nirmalabai Ranjitrao Jahagirdar, Age : Major, Occu.: Household, Residing at Ahergaon, Taluka Niphad, District Nashik 2. Smt. Hirabai Kakasaheb Deshmukh, Age : Major, Occu.: Household, R/o Karanjkhed, Taluka Kannad, Dist. : Aurangabad 3. Smt. Meerabai Sharadrao Deshmukh, Age : Major, Occu.: Household, Resident of Anadarsul, Taluka Yeola, District : Nashik 4. Smt. Nishabai Anandrao Shinde, Age : Major, Occu.: Household, Resident of Sanvatsar, Taluka : Kopargaon, District : Ahmednagar 5. Smt. Vimalbai Vithalrao Shinde, Age : Major, Occu.: Household, Resident of Sanvatsar, Taluka : Kopargaon, Dist.: Ahmednagar 6. Sudhakar Madhavrao Kurhade, Age : Major, Resident of Madhi (Bk), Taluka Kopargaon, District : Ahmednagar .. RESPONDENTS (2) WP. 298.1999 Mr. V.D. Hon, Advocate for the Petitioner Mr. D.R. Korde, AGP for the respondent-State Mr. V.R. Dhorde, Advocate h/f. Mr. R.N. Dhorde, Advocate for the respondent no.3 and 4 Mr. S.D. Kulkarni, Advocate for the respondent no.6 ... CORAM : V.R. KINGAONKAR, J. DATED : 22ND JULY, 2010 ORAL JUDGMENT:- 1. By this Petition, the petitioner seeks to impugn the judgment and order dated 10.9.1998 rendered by learned Designated Member of the Maharashtra Revenue Tribunal, Pune (M.R.T.) By the impugned judgment and order, revision application filed by the petitioner came to be dismissed. 2. It is not necessary to elaborately set out the background facts. Suffice it to say that the petitioner was admittedly tenant of agricultural land bearing survey no. 179/1, admeasuring 3H 17R situated at village Sanvatsar. There is also no dispute about the fact that originally the land was (3) WP. 298.1999 held by Anandrao Shinde. He died in or about 1970. His widow by name Smt. Kamlabai and daughter-in-law by name Vimalabi inherited the agricultural land. It appears that subsequently said Kamlabai also died, leaving behind three daughters. It further appears that after the death of said Kamlabai, proceedings for surrender of tenancy rights were taken up before the Tenancy Tribunal vide application on 27.3.1981. The petitioner surrendered part of the tenanted land whereas part thereof was retained by him as the landlady allocated the same in his favour on 6.6.1981 under a registered sale deed. It appears that the land which was surrendered in favour of the respondent no.6-Sudhakar. Transfer of the surrendered land gives rise to filing of application by the petitioner for restoration of his possession in respect of the part of the tenanted land which he had surrendered in favour of the landlady. The petitioner's contention before the Tenancy Tribunal was that he had surrendered the part of the land on the condition that the landlady would personally (4) WP. 298.1999 cultivate the same. He contended that the transfer of the part of the surrendered land was not permissible and therefore, he ought to have been allowed to restore possession due to the breach committed by the landlady. The landladies- transferees inter-alia contended that the surrender was un-conditional and that it was governed by section 15 of the Bombay Tenancy and Agricultural Lands Act, 1948 (For short "The B.T. and A.L. Act"). The Tahsildar was yet to finally adjudicate the nature of surrender when preliminary objection was raised by the respondents in respect of maintainability of the application. The objection was overruled by the Tahsildar. The respondent no.1 challenged the order of the Tahsildar by filing Tenancy Appeal no. 17 of 1991. The learned Sub Divisional Officer allowed the appeal and held that the application filed by the petitioner in tenancy case no. 13 of 1989 (old no. 11 of 1981) was liable to be dismissed on the preliminary ground that the surrender once effected under section 15 of the B.T. and A.L. Act could not be reconsidered and the issue (5) WP. 298.1999 was already foreclosed. Feeling aggrieved, the petitioner preferred Revision Application before the M.R.T. The learned Designated Member of the M.R.T. dismissed his revision Application. 3. Heard learned counsel for the parties. 4. At the outset, let it be noted that there is no finding on the relevant issue regarding nature of the surrender of the tenancy rights by the petitioner. It is important to notice that when the surrender was effected by the petitioner by filing application before the Tenancy Tribunal, there was no particular and substantial reason for him to voluntarily give up the tenancy rights. What appears from the record is that the petitioner was given ownership rights in respect of part of the tenanted land by the landladies. They executed a gratuitous sale deed in his favour. Obviously, it is yet not at all determined on basis of fact finding as to whether the tenancy was brought about by holding allurement of giving ownership rights to (6) WP. 298.1999 the petitioner and was therefore outcome of the agreement of unlawful nature or that the petitioner, in fact, voluntarily desired to give up his rights in respect of part of the tenanted land. It is probable that he wanted to give up the rights in favour of the landladies due to the change in circumstances and because the landladies were helpless widows. Still, however, the nature of such surrender is required to be ascertained by the Tenancy Tribunal after recording of evidence. It would be premature to express any opinion on merits about the nature of surrender. 5. Counsel for the respondents would submit that since the surrender of the tenancy rights is governed by section 15 of the B.T. and A.L. Act, the restoration application itself was not maintainable. He would further submit that the tenants may have right to claim restoration of the tenanted land only if the tenancy is terminated at the behest of the landlord under section 31 of the B.T. and A.L. Act and therefore, the application could be rightly (7) WP. 298.1999 dismissed. The valid surrender of the tenancy rights would be permissible only if all the conditions enumerated in section 15 of the B.T. and A.L. Act are duly satisfied. The Mamlatdar is required to verify the voluntary and abject surrender of the tenancy under sub-section (1) and give finding to that effect. Sub-section (2) of section 15 of the B.T. and A.L. Act may be reproduced for ready reference:- "Section 15 - Termination of tenancy by surrender thereof:- (1) ... (2) Where a tenant surrenders his tenancy, the landlord shall be entitled to retain the land so surrendered for the like purposes, and to the like extent, and in sofar as the conditions are applicable subject to the like conditions as are provided in section 31 and 31-A of the termination of tenancy." (8) WP. 298.1999 6. Perusal of section 15(2) therefore would make it amply clear that the surrender of the tenancy may be effected conditionally as is governed by section 31. Therefore, findings of facts are very much necessary on the contentious issue. The impugned orders purport to show that instead of allowing recording of finding of fact, the petitioner's right to adduce the evidence and prove the averments is itself scuttled at the peremptory stage. 7. Considering the foregoing reasons, the summary dismissal of the proceedings by the Sub Divisional Officer and the Designated Member of the M.R.T. is improper and, therefore, the Petition is allowed. The impugned judgments and orders are set aside. The objection regarding maintainability of the application filed by the petitioner shall be simultaneously considered alongwith the application filed for restoration of the surrendered land. The Tenancy Tribunal would determine the relevant issues on merits and that the tenancy Tribunal shall (9) WP. 298.1999 dispose of the application on its own merits within a period of six (6) months as far as possible. The parties are at liberty to seek appropriate interim relief before the Tenancy Tribunal. It is made clear that no opinion is expressed on merits of the matter and particularly in respect of nature of the surrender of the tenancy rights. Rule made absolute accordingly. Sd/- [V.R. KINGAONKAR, J.] arp