2004(1) ALL MR 903
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
NARESH H. PATIL, J.
Vithal S/O Baba Since Deceased Through Lrs. Shevantabai W/O Vithal Andhare & Ors.Vs.Ahmed Khan S/O Nanhe Khan & Ors.
Writ Petition No.581 of 1986
13th June, 2003
Petitioner Counsel: S. D. NATU,A. H. JOSHI
Respondent Counsel: P. V. MANDLIK,S. V. CHILLARGE
(A) Hyderabad Tenancy and Agricultural Lands Act (1950), Ss.32(1), 98 - Applicability - Persons in unauthorised occupation of property - Remedy would be under S.98 and not under S.32(1) - Person who wrongly approached authorities under S.32(1) is not thereby estopped from initiating proceedings under S.98. (Paras 9, 20, 21)
(B) Hyderabad Tenancy and Agricultural Lands Act (1950), Ss.19(1), 47 - Surrender of tenancy in favour of landlord or of successive transferee - Surrender to be lawful and valid must comply with provisions of Ss.19(1) and 47 - Surrender must be verified by Tahasildar as voluntary and lawful. (Paras 9, 16)
Kerba Bhiwaji Shinde Vs. Salubai Nagorao, 1983 Mh.L.J. 1009 [Para 11,12]
Kashinath Maruti Labase Vs. Gulab Tulsiram Kolhe, 1990(2) Mah.L.R.210 [Para 12]
Trambaklal Harinarayan Jani Vs. Shankarbhai Bhaijibhai Vagri, (1960) 62 Bom.L.R. 261 [Para 12]
Murlidhar Bhima Vaidya Vs. Nababbi Yousufkhan, 2000(1) Mah.L.R.427 [Para 13]
Ramchandra Keshav Adke Vs. Govind Joti Chavare, AIR 1975 SC 915 [Para 14]
Rangnath Vishnu Mulluck Vs. Vithoba Rama Rahane, AIR 1999 SC 534 [Para 15]
JUDGMENT :- The petitioner - deceased Vithal Baba had initially filed an application under section 32(1) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as "the Act of 1950") before the Tahsildar, Bhokar, District Nanded seeking eviction against his landlord Nawab Khan. The said proceedings had culminated and by a panchanama dated 20-11-1966, which is at page No.49 of the Record and Proceedings produced before Court, he was put in possession of the suit land as the petitioner claimed to be a protected tenant of the suit property. The original landlord Nawab Khan had executed an agreement of sale in favour of present respondent No.1 on 10-5-1967. It is alleged by the respondent Nos.1 and 2 that, the petitioner Vithal Baba had signed as a consenting party/witness to the agreement of sale executed between the original landlord and the present respondent No.1. Thereafter, the original landlord Nawab Khan had executed a sale need in favour of present respondent Nos.1 and 2 on 3-2-1968 in respect of the suit land. The sale deed is appearing at page 83 of the record and proceedings. The original record further reveals that an affidavit (page 61 of the R & P) was filed by the present petitioner before the Tahsildar on 9-5-1967 that he had willingly handed over the possession and had surrendered his tenancy rights. On 5-10-1974 the petitioner had filed an application before the Tahsildar seeking possession of the property in question from the present respondent Nos. 1 and 2. The said application was registered, as Case No.TNC/CR/2 under section 32(1) of the Act of 1950. The said application was rejected by the Tahsildar on 30-12-1974. The petitioner deceased Vithal preferred an appeal before the Collector, Nanded. The Collector by holding that the said application was maintainable under section 98 of the Act of 1950 allowed the appeal by an order dated 11-11-1975. The present respondents preferred a revision and the said issue was taken up before the Maharashtra Revenue Tribunal by way of a revision being No.20/B/76-Nanded, which had set aside the order of the Collector and remanded the matter back to the Tahsildar by an order dated 31-10-1976.
2. After remand, the Tahsildar decided the matter afresh by treating the proceedings as one under section 32(1) of the Act of 1950 and dismissed the same by his order dated 28-8-1979 on the ground of limitation. The petitioner deceased Vithal preferred an appeal, being Case No.1979-TNC-Appl-32(1) before the Deputy Collector, Land Reforms, Nanded but the same came to be dismissed by an order dated 15-10 -1981. The petitioner - deceased Vithal chose not to challenge the said judgment.
3. The petitioner approached the Deputy Collector, Land Reforms, Nanded by filing an application under section 98 of the Act of 1950 on 25th January, 1982. The said application was registered as Case No.1982-TNC-CR-98-46. The respondent Nos.1 and 2 filed their say, the Deputy Collector, Land Reforms, Nanded dismissed the application of the petitioner by an order dated 27-7-1983. Against that order, the petitioner preferred Tenancy Appeal No.169/A/1983 - Nanded before the Maharashtra Revenue Tribunal, Aurangabad. The Tribunal by an order dated 11-11-1985 dismissed the appeal filed by the petitioner. Thereafter the petitioner deceased Vithal preferred the present writ petition under Article 227 of the Constitution of India. To this writ petition, there is no reply filed by the respondent Nos.1 and 2.
4. Shri. S. D. Natu, learned counsel holding for Shri. A. H. Joshi, for the petitioner submitted that the view taken by the Tribunal is contrary to the provisions of the Act of 1950 and the reported decisions of this Court and the Supreme Court. The alleged surrender of tenancy by the petitioner could not be held to be a valid surrender for non-compliance of the provisions of sections 19(1) and 47 of the Act of 1950. There was no compliance of section 32(2) of the Act of 1950. He submitted that the remedy under section 98 of the Act of 1950 cannot be termed to be an alternate remedy. In the facts of the case and in view of the settled position of law the remedy under sections 32 and 98 to be resorted by a tenant is quite independent in its own field. The respondent Nos.1 and 2, who claimed to be the purchasers from the original landlord Nawab Khan, are in unauthorised occupation of the immovable property. They cannot be referred to as the landlord of the petitioner-tenant. The respondent Nos.1 and 2 have forcibly taken possession from the petitioner tenant and their possession is not lawful possession.
5. Shri. P. V. Mandlik, learned counsel appearing for respondent Nos.1 and 2, submitted that both the authorities below have gone into the merits of the matter and the legal issues raised by the parties and had decided that the remedy of filing petition under section 98 of the Act was not maintainable in view of the petitioner's exhausting the remedy under section 32(1) of the Act of 1950. He submitted that as the petitioner did not challenge the earlier order of the Maharashtra Revenue Tribunal, which arose out of the proceedings initiated under section 32(1), he is estopped now to resort to the remedy under section 98 of the Act of 1950. The petitioner is raising the ground for the first time before this Court which is not permissible. The petitioner had voluntarily surrendered his tenancy rights in favour of his original landlord Nawab Khan. He was a signatory to the deed exchanged between the original landlord and the respondent Nos.1 and 2. He had appeared before the Tahsildar and had filed an affidavit that without any pressure from anybody he was surrendering his tenancy rights. The Tahsildar had completed all the necessary formalities in law and hence the surrender is a valid surrender and the respondent Nos.1 and 2 are in lawful possession of the property. He prayed for dismissal of the writ petition.
7. The Maharashtra Revenue Tribunal while considering the facts of the case had observed that in spite of the alleged-surrender of tenancy rights by the petitioner in favour of the landlord, it was evident in this case from the affidavit that the tenancy of the present petitioner continued. It is observed that there was no dispute that the petitioner was a tenant. The tenancy was not terminated. The Tribunal interpreted the averments in the application filed under section 98 by the petitioner and observed that the petitioner referred the respondent Nos.1 and 2 as his landlord. This, on its face, does not seem to be the correct observation. The petitioner averred that the father of the respondent Nos.1 and 2 dispossessed him.
8. While appreciating the import of the provisions of sections 32(1) and 98 of the Act of 1950 the Tribunal observed that a tenant if dispossessed by a third party i.e. trespasser probably proceedings under section 32(1) may not lie.
9. In view of the law laid down by this Court it was rightly submitted by the learned counsel appearing for the petitioner that remedy against the persons who are in unauthorised occupation of the property would be under section 98 of the Act of 1950. The view taken by the Tribunal that as the petitioner had approached the authorities seeking possession under section 32(1) of the Act of 1950, is estopped from initiating the proceedings under section 98 is not legally sustainable view. It was an error on the part of the Tribunal to arrive at a conclusion that the petitioner treated the present respondent Nos.1 and 2 as his landlord. Assuming that the petitioner recognises respondent Nos.1 and 2 to be persons who had purchased the said property from his original landlord, that itself would not bind the petitioner to accept the ownership of the respondent Nos.1 and 2 and would not be a fact of surrendering his tenancy in favour of the original landlord or his successive transferee of the property. Unless the requirements of the provisions of the Act of 1950, more particularly of sections 19(1) and 47 are complied with there cannot be a valid surrender of the tenancy in favour of the landlord or of the successive transferee. The petitioner had already taken a stand that he had not willingly filed the affidavit and surrendered his tenancy rights.
10. Shri. Mandlik, learned counsel for the respondent Nos.1 and 2, could not show that there was an order passed by the Tahsildar under section 32(2) by which there was a valid surrender of tenancy and delivery of possession of land by the tenant in favour of the landlord or to his successive transferee. In this view of the matter, even if there was execution of sale deed between original landlord Nawab Khan and the present respondent Nos.1 and 2, for the purpose of the provisions of the Act of 1950, the taking over of the possession by the respondent Nos.1 and 2 from the petitioner, who claims to be the tenant of the property, would not be lawful and authorised one.
11. On behalf of the petitioner, learned counsel has relied upon various decisions of this Court as well as the Supreme Court. In the case of Kerba Bhiwaji Shinde Vs. Salubai Nagorao and others reported in 1983 Mh.LJ. 1009 it is observed that a tenant if dispossessed by third party i.e. a trespasser probably then application under section 32(2) may not lie. Although he is tenant on the land against a third person the tenant should file an application under section 98 and not under section 32(1) of the Tenancy Act. And where there is a dispute between the tenant and the landlord as to the possession of tenanted land the only section available to the tenant is section 32(1) of the Act of 1950 and his application against landlord under section 98 probably may not be maintainable.
12. The view expressed by this Court in the case of Kerba (supra) was referred to by this Court in the case of Kashinath Maruti Labase Vs.Gulab Tulsiram Kolhe reported in 1990(2) Mah.L.R. 210 and was relied upon. In Trambaklal Harinarayan Jani Vs. Shankarbhai Bhaijibhai Vagri reported in (1960) 62 Bom. L.R. 261 while interpreting the provisions of the Bombay Tenancy and Agricultural Lands Act 1948, in relation to sections 84-B and 29(1), this Court had observed :
"In order that there may be a transfer or acquisition through surrender such surrender must be a lawful one, made in accordance with the provisions of the Tenancy Act and one whose effect would be the total cessation of the tenancy rights of the tenant, either under a contract of tenancy or under a statutory tenancy. So long as surrender is not verified and recognized under S. 15 of the Act and so long as a tenant still retains the right to restoration of possession under S. 29(1) of the Act, there would be no cessation of tenancy rights and, therefore, no acquisition or transfer of land by the landlord."
13. This Court in the case of Murlidhar Bhima Vaidya Vs. Nababbi Yousufkhan reported in 2000(1) Mah.L.R. 427, while discussing the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, had observed that even if the tenant wanted to surrender the possession of the land, the provisions of section 15 of the said Act require that the said surrender should be verified before the Tahsildar and the Tahsildar shall be satisfied that it is voluntary surrender of the tenancy.
"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 verified 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 findings as to such satisfaction upon the document of surrender.
The question of inherent jurisdiction apart, all that the Circle Officer did in this case was that he recorded the statements of the tenant and landlord and made 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 same any longer and so he is surrendering the possession willingly along with crops and also the right as pro-tenant", he did not say a word that he was satisfied that the tenant had voluntarily made the surrender after understanding its nature and consequences, much less did he endorse 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 recording of its satisfaction 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 been even a substantial compliance with the statutory requirements."
"The respondent - Vithoba was the tenant of nine pieces of lands. In respect of five lands, proceedings were initiated under section 32-G of the Bombay Tenancy and Agricultural Lands Act in the year 1962. On the basis of the statement alleged to have been made by the tenant on 5-8-1962 expressing his unwillingness to purchase those lands, an order was passed declaring the statutory sale ineffective. The landlord obtained possession of those five lands on the basis of the said order. So far as the other four lands are concerned, there was no order in favour of the landlord and yet he took over possession of those lands also. The tenant, therefore, filed an application under section 84 of the Act for summary eviction of the landlord from those lands. The Agricultural Lands Tribunal dismissed the same on the ground that the proper remedy for the tenant was to make an application under section 29 of the Act and not under section 84. The appeal against that order was dismissed. The Revision Application made to the Revenue Tribunal was also dismissed. The High Court allowed the writ petition on the ground that the tenant had not surrendered his tenancy rights in respect of those lands and the landlord had not obtained possession thereof in a lawful manner. Since the landlord was in unauthorised possession of those lands as he had no right to retain the same, the application made by the tenant under section 84 was held proper and maintainable."
16. Perusal of the record and proceedings shows that the Tahsildar made an endorsement behind the affidavit filed by the petitioner surrendering his tenancy rights. The endorsement shows that the Tahsildar had verified the contents of the document and the facts stated by the parties in his presence. The endorsement by the Tahsildar does not show his application of mind. In compliance with the provisions of the Act of 1950, there has to be an indication about his satisfaction as regards surrender of the tenancy rights by the petitioner/tenant and handing over of the possession. This requirement in law is absent in this case. There is non-compliance of the provisions of section 19(l)(a) proviso which cast a duty on the Tahsildar to record his satisfaction of the surrendering of the tenancy in favour of the landlord.
17. The learned counsel appearing for the respondent Nos.1 and 2 was not in a position to even demonstrate that there was an order for delivery of possession under section 32(2) of the Act of 1950 from the petitioner/tenant in favour of the landholder.
18. Lastly, it was submitted by the learned counsel appearing for the respondent Nos.1 and 2 that the petition filed under section 98 was barred by limitation. There was delay of 65 days. The Tribunal did not condone that delay and the appeal was dismissed on that ground also.
20. The petitioner had given reasonable explanation as to why he did not prosecute further the proceedings initiated by him under section 32(1) after he lost the first round of litigation in the Revenue Tribunal. He termed his initial proceedings under section 32(1) to be void ab initio hence he was convinced that he need not prosecute this remedy any further. That itself would not debar the petitioner from prosecuting the remedy under section 98 of the Act which was available in law and which was held by judicial pronouncements by this Court to be the remedy available in law in favour of the tenant against the persons who are in unauthorised occupation of the property and who had acquired wrongful possession of the land.
21. Both, the Deputy Collector, Land Reforms, as well as the Tribunal, did not address the legal issues in their proper perspective arising out of the facts of this case and had erroneously rejected the petition and the appeal of the petitioner filed under section 98 of the Act of 1950 to be not maintainable as barred by limitation and on merits also. In view of the observations and the conclusions reached above, I find it to be a fit case to interfere in the writ jurisdiction of this Court.
22. The Writ Petition is allowed. The judgment and order dated 27-7-1983 of the Deputy Collector, Land Reforms, Nanded in Case No.1982-TNC-CR-98-46 and the judgment and order of the Maharashtra Revenue Tribunal Aurangabad in Appeal No.169/A/1983- Nanded dated 11-11-1985 are quashed and set aside.The application filed by the petitioner before the Deputy Collector, Land Reforms, Nanded being Case No.1982-TNC-CR-98-46 is allowed and it is ordered that the petitioners be put in possession of the land survey No.47-B admeasuring 9 acres and 27 gunthas situated at village Kolgaon, Taluka Bhokar, District Nanded.