VALLABBHAI NATHABHAI Vs. BAI JIVI

JUDGEMENT

(1.) The facts relevant to this appeal are short and no longer in dispute. Respondent 1 is the owner of Survey Nos. 974/2 and 975/4 situate in the villain Delol in district Panchmahals and the appellant at the material time was the tenant thereof. On May 15, 1956 the appellant voluntarily handed over possession of the said lands to respondent 1. It is, however, an admitted fact that the said surrender was not in writing and the procedure of inquiry and verification required by Section 15 of the Bombay Tenancy and Agricultural Lands Act, 57 of 1948 (hereinafter called the Act) was not gone through. The surrender though voluntary thus was not in accordance with Sec. 15 and therefore was not valid and binding on the appellant. It is not in dispute that respondent 1 thereafter personally cultivated the said lands. On January 6, 1961 the appellant applied to the Deputy Collector under Sec. 84 of the Act for summary eviction of respondent 1. The Deputy Collector dismissed the application holding that the tenant's remedy lay under Section 29 (1) of the Act. The Gujarat Revenue Tribunal, however, in a revision by the tenant set aside that order holding that Section 84 and not S. 29 (1) applied . Respondent 1 thereupon filed a writ petition under Article 227 in the High Court of Gujarat and the High Court held, on interpretation of Ss. 29 (1) and 84, that Section 84 did not apply in such cases and set aside the Tribunal's order. What is the scope of Section 84 of the Act is the question, therefore, arising in this appeal which is filed by the tenant after obtaining special leave from this Court.

(2.) On behalf of the appellant Mr. Bhandare raised the following contentions:

(3.) Under Section 15 (1) a tenant, as defined by Section 2 (18) of the Act, can terminate the tenancy in respect of the land held by him as a tenant by surrendering his interest in favour of his landlord and as provided by sub-section (2) on such surrender of the tenancy the landlord becomes entitled to retain the land so surrendered by the tenant in the same manner as when the tenancy is terminated under Sections 31 and 31A of the Act. The tenancy on such surrender comes to an end and thereupon the relationship between them of a landlord and a tenant and the rights arising out of that relationship terminate. The Legislature, however, was aware of the possibility of landlords taking advantage over the tenants and therefore to safeguard the tenants against such a possibility, it laid down through the proviso that a surrender by a tenant could only be valid and binding on him if it was in writing and was verified by the Mamlatdar. Before the Mamlatdar would verify such surrender it would be his duty to ascertain whether the surrender was voluntary and was not under pressure or undue influence of the landlord. But once the surrender satisfies these two conditions it has the same effect as the termination of tenancy:the tenancy comes to an end and the landlord becomes entitled to retain the land of which possession is delivered to him by the tenant surrendering his interest as a tenant therein. In cases, however, where the surrender has not satisfied the two conditions, even if it is voluntary, it is no surrender and therefore there is no termination of relationship of a landlord and tenant. Consequently even if the tenant has voluntarily surrendered possession and the landlord has taken it over, since the tenancy still continues the tenant obviously is entitled to retain possession and therefore to its restoration. Though, therefore, Section 15 does not in so many words provide that in such a case the tenant is entitled to restoration of possession, there being no valid surrender where the two conditions are not satisfied, the tenancy continues and the tenant can claim possession from the landlord as the tenant of the land in question such claim being based on his right as such tenant to be in possession of such land and the landlord's disability to terminate the tenancy under the provisions of the Act. It is true that Sec. 37 expressly provides for restoration of possession to the tenant in the eventuality provided therein while Section 15 does not so provide. But the right to restoration had to be provided for in Section 37 not there would be termination of tenancy which becomes revived and on revival thereof the tenant becomes entitled to restoration of possession. In a case under Section 15, however, if the surrender is not valid it is no surrender at all and there is no question of termination of tenancy. The tenant continues to be entitled to possession and therefore there is no question of the section having to provide for restoration of possession. There is, therefore, no force in the contention that in the case of an invalid surrender the tenant is not entitled to possession under the provisions of the Act. He is in fact entitled to claim book possession under Section 15 itself for under sub-section (2) the landlord becomes entitled to retain the land only if the surrender is in accordance with the provisions of Section 15.