RAMCHANDRA KESHA V ADKE & ORS

GOVIND J01'1 CHA V ARE AND ORS.

March 4, 1975

[Y. V. CHANDRACHUD, R. S. SARKARIA AND A. C. GUPTA, JJ.]

Bombay Tenancy Act (67 of 1948)-S, 5 (3).-Scope of.

Section 5(3) (b) of the Bombay Tenancy Act enacts that a tenant may terminate the tenancy at any time by surrendering his interest .as a !nant in favour of the landlord provided that such surrender shall be m wntmg and shall be verified before the Mamlatdar in the manner prescribed.

Rule 2-A of the Rules states that the Mamlatdar, when verifying a surrender of a tenancy by a tenant, stall satisfy himself after such inquiry as he thinks fit, that the tenant understands the nature and consequences of the surrender and also that it is voluntary. and shall endorse his findings in that behalf upon the document of surrender.

The appellants. who were the landlords of certain lands, made an application to the Mamlatdar stating that the tenant was w:lling to ~.urrender his tenancy in the agriculural land and prayed for verification under s. 5 ( 3) of the Bombay Tenancy Act ( 67 of 1948).

The Mamlatdar did not verify the surrender.

The Circle Officer recorded the statement of the tenant and the landlords and passed an order on the application.

Mutation entry was made in the record of rights of the village and the landlords' name was entered in 'the register as a person in actual possession of the land.

A few months later, however, the tenant made an application for a declaration that he was . the tenant is possession of the land in dispute.

This was dismissed by the Tenancy Aval Karkun.

The tenant thereupon preferred an appeal before the Special Deputy Collector, who held that the order passed by the Circle Officer was not an order passed by the Mamlatdar as required by the tenancy law .and as such it was without jur'sdiction and void and that there was no verification of the surrender application as required by law.

The revision application preferred to the Maharasthra Revenue Tribunal by the landlords was dismissed.

The fandlords' writ petition was dismissed by the High Court holding that the alleged surrender was a nullity as there was no compliance with the mandatory requirements of s. 5 (3) of the Ilombay Tenancy Act, read with r. 2-A.

On appeal to this Court it was contended th&t the provisions of r. 2-A are directory and not mandatory and that there had been a substantial compliance with the requirements of the relevant provisions of the Act and the rule.

Dismissing the appeal,

HELD: !(a) The imperative language the beneficient purpose and importance of s. 5(3 )(b) of the Act and r. 2-A for efficacious implementation of the general scheme of the Act-all unerringly lead to the conclus'on that

\hey were intended to be mandatory. Neglect of any of these statutory requisites would be fatal.

Disobedience of even one of these mandate' would render !he ;1 rre.nder invalid and ineffectual. rB44Gl

(b) The language of s. 5(3) (b) and r. 2-A is absolute. explicit and

peremptor~-. The words '.provided that' read with the words 'shall be' repeatedly used in s. 5(3)(b) make the terminat'on of tenancy by surrender entirely subject to the imperative conditions laid down ; n the proviso. This proviso throws a benevolent rin11 of prote<; tion arnund tenants.

It is designed to protect a tmz, n.t on two fronl• agamst t.>.vo types of dangers--one ag<.nst possiblr,

oerc10n, _undue influence and trickery proceeding from the landlord and the o:her a.gams.t the tenai:it's own ignorance. improvidence and attitude of heloless

'elf-'.'"'"r'.al1on stemming from his weaker position in the tenant-landlord 1 el::<10:1sh1p.

[844E-FJ

(c) The intentio~ of the legislatu.re is to be ascertained .. upon. a re, iew of the language, sub1ect matter and 1~1portance of the proV1S10n m re.la'~'on

to general object to he secured, the mischief to be TJreented and the l<n".dy to be 1":omotcd by the Act.

[843F]

Liverrwol Boroualt Bank v. Turna (1861) 30 L.J. Ch. 379 at p .. '30; " E " ry f d t Craise on Statute Law, 7th do. p ... o •. re erre o.

In the instant case all that the Circle Officer did was t~ record the st:ttement of the tenant and landlord and make the ordr. He did not say a w1;>r<f that he was satisfied that the tenant had voluntnly made a s~1-rendr a1; ter

understanding its nature and consequences nor did he endorse his sat1sfacl100 on the tenant's deed of surrender as required by r. 2A. requirement as tc1 the recording of its satisfaction by the authority in the manner prcribed by the rnle was the substance of the matter and not an empty formality. In the absence of the requisite. enuorsement it cannot be said that there had \:>en even a substantial compliance with the statutory requirements, [845A-Cl

( 2) The rule th at where a power is given to do a certain thing ii1 a certain way the thing must be done in that way or not at all and that other methods of' performance are necessarily forbidden is attracted with fUll force in this case because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision. Intention of the legislature to prohibit the ve:rification of the surrender in a manner other than the :one p1reseribed, is implieci in these provisions. Failure to comply with thes~ ma1:datory provisions had vitiated the surrender and rendered it non-est for the r:urpose of s. 5 ( 3) (b) of the Act.

[R45E-G]

Taylor v. Taylor [1876] Ch. D 426; Nazir Ahmed v. Emperor LR.. 63

I.A. 372-ATR 1936 P.C. 253; Sliiv Bahadur Singli v.

State of 11.P. (1954] S.C.R. 1098 and Deep Chand v. State of Rajasthan [1962] S.C.R. 662 followed.

CtvrL APPELLATE JURISDICTION : Civil Appeal Nos. 58 & 810 of 1968.

Appeal by special leave from the judgment and order dated the 5th October, 1967 of the Bombay High Court in S.C.A. Nos. 69S & 696 of '1966.

S. T. Desai and B. R. Agarwa/a, for the •appellants.

K. Rajendra Choudhury and P. C. Kapur, for the respondent,.

The Judgment of the Court was delivered by

SARKARIA, J.-These appeals by special leave are directed against the common judgment, dated 5.10.1967, of the High Court of Bombay dismissing two Writ Petitions filed by the •appellants to impugn the orders of Maharashtra Revenue Tribunal. The material facts are these :

01 Septembei" 8, 1953, the predecessor of appellants 1 and 2

(heremaer. called the landlords) made an application to the Mamlatd!il" of M1ra1? that the enant (Respondent oo. 1) was willing to surrender his.tenancy m the agricultural land,. bearing Survey No. 102/2, admeasu~~ 8 .acrs and 22 .Gunthas, situated at village Haripur, Taluka Mrra1, D1stnct Sangh m the State of Maharashtra.

The landlord prayed that the surrender in his favour should be verified unde~ s._5(3) of the Bombay Tenancy Act 67 of 1948.

To this application the landlord annexed a letter of surrender 'Jearing the thumb-impression

' ,,

of the tenant. The Mamlatdar did not verify the surrender, or pass any final order in the matter.

The landlord's application however came up before Shri Bhokare, the then Circle Officer. of Mirai who after recording the statements of the tenant and the landlord, CTade this order on it.

"The applicant and the tenant are present.

The tenan: Shri Chaware states that the suit land viz.

S. No. 102/1 measuring 8-22 and assessed at Rs. 44-3-0 of Haripur belongs to the applicant and that he is cultivating the same ao

a protected tenant. He further adds that he does not want to cultivate the same any longer and so he is surrendering the possession willingly along with crops and also the right as pro. tenant.

I, therefore, order that the possession of the suit land should be handed over to the applicant with the crops and the right as pro. tenant should be deleted under Secti'or. 29 (i) (3) o~ the B.T. and AL. Act 1948 Haripur 18-9-53.

Bhokare (M. M. Bhokare) Circle Officer, Sangli."

Pursuant to the above order, a Panchnama was prepared by the Talati on November 20, 1953, in which it was stated that the possession of this tenancy land had been given to the landlord. The latter executed a Kabje-Pavti to the effect, that he had obtained the possession. Mutation entry No. 431 was also made in this respect in the record of rights of the village and the name of the landlord was entered as Kabzedar in actual possession. On April 23, 1959, the landlord sold this land to appellants 3 and 4 and respondents 2 and 3.

On 9-11-1959, the tenant made an applicafron against th.: Landlord and his transferees (Sherikars) to the Additional Tenancy ..Xvalkarkun, Miraj, praying for a declaration that he was the tenant-in-possession of the land in dispute and further that the opponents be injuncted not to disturb his possession over the land.

Tn the altanative, he prayed that if he was found to have lost possession, the same be restored to him, This application was opposed by the landlord and his transferees on two main grounds: (1) that the tenant had duly surrendered his tenancy in 1953 and he was not in possession thereafter, and (2) that his application was time-barred.

Both these grounds found favour with the Tenancy Aval Karkun, and he dismissed foe tenant's application by an order dated 22-11-1961.

Aggrieved, the tenant filed Tenancy Appeal No. 292 of 1962 before the Special Deputy Collector, Sangli.

The tenant preferred another appeal also, to the Deputv Collector against the order, dated 18-9-1953, of the Circle Officer, Mr. Bhokare, whereby the tenant's name was deleted from the record of rights.

The Deputy Collector held that Shri Bhokare'~ Order was not an order nassed by a Mamlatdar as required by the Tenancy law and, consequently, it was without jurisdiction and void. He further held that there was no verific:i.t1on

o~ the surrender applicatlon as required by law.

He further found that, in fact, the tenant had never surrendered the tenancy, but 1'.ad continued to be in possession till he was illegally dispossessed in 1959 and consequently hi~ application was within time. On these findings the Special Deputy Collector allu; ved both the appeals, and direct1::d

that the possession of the suit land be restored to the tenant. He also set aside the mder of the Circle Officer regarding the mutation entry.

Against the Deputy Collector's decision, the landlord preferred

twc~ revision applications before the Maharashtra Revenue Tribunal The Tribunal dismissed the revision applications and affirmed the findings of the Deputy Collector. The landlords and their transferees thereupon moved the High Court of Bombay by two writ petitions under Article 227 of the Constitution for impugning the revisional orders of the Tribunal. The High Court, as already stated, dismissed the petitions. Hence these appeals.

The common question that falls to be determined in these appeals is whether in the circumstances of this case, the alleged surrender y the tenant was valid ?

The Deputy Collector and the Tribunal have concurrently answered this question in the negative on the threefold ground : (i) That the so-called surrender was a sham transacti'on because the tenant continued thereafter to be in possession and paid rent to the landlord upto 1959; (ii) That Circle Officers were not empowered to dispose of tenancy cases and as such Shri Bhokare's order, dated Septemb<r 18, 1953, was without jurisdiction and (iii) That the surrender had not been verified as required by law.

The High Court upheld the finding l'.ln ground (i), the same being a finding of fact not shown to be erroneous. It did not think it necessary to go into the second ground.

Regarding the third ground, it held that the alleged surrender was a nullity as there was no compliance with the mandatory requirements of s.5(3) of the Bombay Tenancy Act, 1953 read with Rule 2-A in regard to the verification of a surrender.

Section 5(3)(b) of the Act, at the material time, was as follows :

"A tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of landlord.

Provided that such surrender shall be in writing and shall be verified before the Ma.mlatdar in the manner prescribed."

The mnncr of such verification has been prescribed by Rule 2-A, in these terms :

''The Mamlatdar when verifying a surrender of a tenancy by a tenant in favour of the landlord under clause (b) of sub-section t3) of section 5, shall satisfy himself, after such enquiry as he thinks fit, that the tenant understands the nature and consequences of the surrender and also that it is voluntary, and shall endorse his findings in that behalf upon the doc:ument of surrender."

. '•

It will be seen from a combined reading of these provisions that a surrender of tenancy by a tenant in order to be valid and effective must fulfil these requirements : (1) It must be in writing.

(2) It must be ycrified before the Mamlatdar. (3) While making such verification the Mamlatdar must satisfy himself in regard to two things, namely,

(a) that the tenant understands the nature and consequences of the surrender, and (b) that it is voluntary.

(4) The Mamlatdar must endorse his finding as to such satisfaction upon the document of surrender.

ll.1r. Desai, learned Counsel for the appellants contends that the provisions of Rule 2-A are directory and not mandatory; that in any case there has been a substantial compliance with the requirements

o~ the relevant provisions of the Act and the Rule. It is submitted that the deed of surrender executed by the tenant was presented along with the application of the landlor.d, to the Mamlatdar; that the Circle Officer exercising the powers of Aval Karkun, then made an enquiry and recorded the statements of the tenant and the landlord to ascertain whether th<> surrender had been intelligently and voluntarily made by the tenant, and that it was only after verifying the requisite facts, the Officer made the order directing delivery 'Of possession to the landlord and deletion of the tenant's name from the record of rights.

It is argued that the mere fact that the Circle Officer's order or endorsement was strictly not in the form prescribed, would not invalidate the surrender. In this connection, the learned Counsel drew our attention to this sentence in the judgment of the Tribunal : "But there is no doubt that the above formalities were gone through before the Circle Officer".

Thus, the first point to be considered is, whether the requirements of these provisions are mandatory or directory. "No universal rule", said Lord Campell" ( 1) can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope." Such intention of the legislature is therefore to bi:; ascertained upon a review of the language, subject matter and importance of the provision in relation to the general Gbject intended to be secured the mischief, if any, to be prevented and the remedy to be promoted by the Act.

, Prior to the enactment of the Bombay Tenancy Act, 1939, the laws governing the relations between: landlords and tenants in the State did not ensure equal status of contract or agreement to the contracting parties inasmuch as the tenants were in a much inferior position. The tenants had no security of tenure. nor any protection against eviction or rack-renting.

Bombay Act 29 of 1939 was the first measure enacted to remedy these evils and to improve the condition of tenants of agricultural lands in the Province.

(I) Liverpoof llorough Bank v. Turner ( 1861) 30 L J. Ch. 3 7 9d t p. 380; Craies of' Statute Law, 7th Edn., p. 262.

• The Bombay Act 67 of 1948 registered an advance in the matter .of ameliorating the lot of r'yots. It marked a big step taken in the post-Independence era by the State legislature towards impleme, ntation of the policy of agrarian reforms.

Chapter II of the Act deals with tenancies in general.

Sections 5 and 15 are in this Chapter.

Chapter III makes provision for special rights and privileges of 1enants and allied matters.

The provisions in th.ese Chapters confer on 'protected tenants' the right to purchase their holdings from their landlords, to prevent uneconomic cultivati"On and to create and encourage peasant proprietorship.

Provision for 'surrender' of tenancy first appeared in a bald form, without any safeguards, in the Proviso to Section 5(2) of the Act of

1948. That Proviso ran thus:

"Provided that any tenancy may be terminated by a tenant before the expiry of a period of ten years by surrendering his interest as a tenant in favour of landlord."

In its unguarded form, the provision was inadequate, and vulner- :able. It was susceptible to 'lbuse.

Under its cloak, scheming landlords could squeeze out tenants, or induce them by questionable D means to leave the protective umbrella of the Act.

The Bombay (Amendment) Act 33 of 1952, which came into force on 12-1-1953, recast this provision and hedged round the surrender with effective sa(eguards.

It substituted sub-section (3)(b)-as reproduced by us earlier in this judgment-for the old Proviso in Se.ction 5.

The language of s.5(3)(b) and Rule 2-A is abwlute, explicit and E peremptory.

The words "Provided that" read with the words "shall be", repeatedly used in s.5(3)(b), make the termination of tenancy by surrender entirely subject to the imperative cond; tim1s laid down in the Proviso.

This Proviso throws a benevolent ring of protection around tenants.

It is designed to protect a tenant on two fronts against two types of dangcrs--one against possible coercion, undue influence and trickery proceeding from the landlord, and the other F against the tenant's own ignorance, improvidence and attitude of hdpkss self-resignation stemming from his weaker position in 111e tenant-landlord relationship.

Thus, the imperative language, the bencficient purpose and inlp'Jrtance of these prnvisions for efficacious implementation of the general scheme of the Act all unerringly lead to the conclusion that thev \Yre i11tcncled to be mandatory. 'Neglect of any of these statutory -requi- G sites would be fatal.

Disobedience of even one of these mandates would render thG surrender invalid and ineffectual.

Having seen that the requirements of s.5(3)(b) and Rule '.2:-\ ;:re obligatory, and not directory. it remains to be considered whether the;:c imperatives have been substantially complied with in the manner pn~'- . criibecl, and if not, what is the consequence of non-compliance ;, H

The question of inherent jurisdiction apart. all that the Circle Officer did in this case, was that he recorded the statements of the

RAM CHANDRA v. GOVIND (Sarkaria, J.) 8 4 5.

tenant and landlord and , nade the order-which we have reproduced in full earlier in this judgment. Although in this order he referred to the tenant's statement ''that he does not want to cultivate the oamc any longer and so he is surrendering the possession willingly along 11ith crops and also the right as pro. tenant", he did n:ot say a word that he was satisfied that the tenant had voluntarily made the surrender after understanding its nature and consequences, much less did heendorse his satisfaction on the tenant's deed of surrender as required by Rule 2-A.

Verification of the surrender implies that the authority was satisfied as to the statutory requisites after due enquiry.

Such satisfaction of the authority was the essence of the whole thing.

In other words, this requirement as to the recordi!J.g _of its satisfact10n by the authority in the manner prescribed by the Rule, was the substance of the matter and not an empty formality.

In the absence of the requisite endorsement, therefore, it cannot be said that there has b.;-en even a substantial compliance with the statutory requirements.

:Vlr. Desai's contention that the Tribunal had found that the Circle Officer had complied with all the formalities prescribed by law, does not appear to be correct.

The sentence from which it is sought to be spelled out should not bf'. torn from its context.

Earlier in its judgment, the Tribunal had clearly said in concurrence with the Deputy Collector, that the surrender had not been verified as required by law.

Next point to be considered is, what is the consequence of noncompliance with this mandatory procedure ?

A century ago, in Taylor v. Taylor(!), Jassel M. R. adopt(; d the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time.

It was applied by the Privy Council, in Nazir Ahmed v. Emperot(') and later by this Court in several cases("), to a Magistrate making a record under ss. 164 and 364 of the Code of Criminal Procedure.

1898. This rule squarely applies "where, indeed, the whole aim and obect of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in

my other. ( 4)" The rule will be attracted with full force in the present case because non-verification of the surrender in the requisite manner would frustrate the very purpose of this provision.

Intention of the legislature to prohibit the verification of the surrender in a manm:r other than the one prescribed, is implied in these provisions. Failure to comply with these mandatory provisions, therefore, had vitiated the >umndcr and rendered it 11011-est for the purpose of s. 5 (3 )(b).

For these reasons, we affirm the judgment of the High Court .and dismiss the appeals with one set of costs.

P.B.R Appeals dismissed.

( 1) [1876] Ch. D. 426.

(2) L. R. 63 I. A. 372-AIR 1936 P. C. 253.

(3) Shiv Balzadur Singh v. State of U. P. [1954] S.C.R. 1098: Deep Chandv. State of Rajasthan [1962[ S.C.R. 662.

(4) Maxwell's Interpretation of Statutes, 11th Edn., pp. 362-363.