VISHNU SITARAM PATIL Vs. GOPAL AVABA ASURLEKAR

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India has been filed with the prayer for quashing and setting aside the order passed by the Maharashtra Revenue Tribunal, hereinafter referred to as "the M. R. T. ", in Revision Application No. M. R. T.- K. P. 66 of 1983 dated 17th August, 1984 wherein the M. R. T. has confirmed the judgement and order dated 13th December, 1982 passed by the Sub-Divisional Officer, Karveer Division, Kolhapur, in Tenancy Case No. 7 of 1976. The only controversy involved in this case is as to whether the Collector has jurisdiction to entertain an application under section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as "the Act" when at the same time the remedy under section 29 of the said Act is available to the applicant. This controversy arises from the few admitted facts.

(2.) THE petitioner is the owner of the suit lands being agricultural lands at village Mahe, Tal. Karveer, Dist. Kolhapur comprised in Survey No. 41 gat No. 73 admeasuring 2. 05 hectares and Survey No. 38/2 gat No. 77 admeasuring 5. 16 hectares. These lands were in possession of the respondent as tenant on the Tillers day. Consequently proceedings were started under section 32-G of the Act by the Tahsildar. Notice was given to the tenant to remain present on 25th November, 1959. He, however, did not remain present. His name was called thrice during the day but neither he nor his Counsel were found to be present. Statement was recorded of the Peon as also of the petitioner on the basis of which the purchase was declared to be ineffective. The petitioner was said to be in cultivating possession since 1959. Further proceedings under section 32-P of the Act were taken in view of the order under section 32-G of the Act. Again notice was issued to the respondent to remain present on 15th June, 1962. Again the respondent was not present. After enquiring into the matter the IInd Additional Mamlatdar and A. L. T. No. III on 15th June, 1962 passed an order under section 32-P holding that the petitioner is entitled to an order of summary eviction of the respondent from the suit land. Findings of fact were also returned by that Court to the effect that inspite of notice respondent had remained absent in proceedings under section 32-G of the Act. He had not applied for review of the said order. It was also held that the petitioner had no other means and he needed the suit lands for his bona fide personal cultivation. It was also held that the respondent had given up the possession of the suit land four years back and the petitioner is cultivating the suit lands. On the basis of the aforesaid orders, the petitioner applied to the village authorities to delete the name of the respondent from the revenue records. Consequently the name of the petitioner was entered into the revenue records by mutation Entry No. 145. The aforesaid entry was certified after observing the procedure under Maharashtra Land Revenue Code. The respondent was all along aware of the proceedings under section 32-G and 32-P of the Act. He was also aware about the mutation entry. The petitioner and the respondent both belong to the same village. Having lost the possession in 1959 the respondent seems to have done nothing till 6th December, 1962. On that day he filed an application under section 84 (c) of the Act before the Sub-Divisional Officer, Karveer Division, Kolhapur being Tenancy Case No. 7 of 1976. It was contended that since last several years he is cultivating the suit lands as a tenant but in April, 1975 petitioner unauthorisedly entered into the lands and started cultivating the same. It was further contended that in October, 1976 he secured 7/12 extracts of the lands and, therefrom came to know that the petitioner has managed to get the name entered for several years. Therefore, he sought summary eviction of the petitioner from the suit lands. In December, 1976 Sub-Divisional Officer passed an order directing the Tenancy Aval Karkun, Karveer to record the evidence of both parties and submit report. Evidence was recorded on 18th June, 1977 and a report was made by the Tenancy Aval Karkun, Karveer. The matter was, however, remanded back to the Tenancy Aval Karkun for a fresh report. On 13th April, 1981 the Tenancy Aval Karkun resubmitted the report and stated that the respondent had cultivated the lands till 1972-73. It was also reported that orders under sections 32-G and 32-P of the Act had not been executed finally and that the respondent had been dispossessed by the petitioner from the suit lands otherwise than by due process of law. Relying on the report of the Tenancy Aval Karkun Sub-Divisional Officer allowed the application of the respondent filed under section 84 (c) of the Act. It was held that respondent was a tenant in the suit land and was in possession till 1973-74. Petitioner was held to be in wrongful possession of the lands and was ordered to be summarily evicted. The Sub-Divisional Officer also held that the petitioner failed to prove service of notices upon respondent in proceedings under sections 32-G and 32-P of the Act. Thus it was held that the respondent was dispossessed by the petitioner otherwise than by due process of law. The contention raised by the petitioner that the remedy under section 84 (c) of the Act was not open to the respondent was rejected. The petitioner filed revision before the M. R. T. This revision was rejected by an order dated 17th August, 1984. The only submission made by the Counsel for the petitioner is that the order of the M. R. T. confirming the earlier order of the Sub-Divisional Officer is against the provisions of sections 29 and 84 (c) of the Act.

(3.) I have perused the orders of the Sub-Divisional Officer and also the order of the M. R. T. A perusal of the order of the Sub-Divisional Officer shows that he has upset the findings of fact given in the earlier proceedings under section 32-G and 32-P of the Act and held that the notices were not properly served on the respondent. It is also observed that the petitioner has not obtained legal possession of the suit lands by executing the orders passed by the Additional Mamlatdar under section 32-P of the Act. Thereafter the submission made by the petitioner with regard to the applicability of section 84 of the Act is considered. The judgement of the Supreme Court in the case of (Vallabbhai Nathabhai v. Bai Jivi and others) A. I. R. 1969 S. C. 1190 was cited before the Sub-Divisional Officer. This authority was, however, distinguished on the spacious ground that in the present case the respondent was claiming possession as a tenant of the suit land. A perusal of the judgement of the Supreme Court would clearly show that a surrender by a tenant can only be valid and binding on him if it was in writing and was verified by the Mamlatdar whose duty it is 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; and the landlord becomes entitled to retain the land of which possession is delivered to him by the tenant. 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, and the tenancy still continues and the tenant is entitled to retain possession and therefore to its restoration. It is held by the Supreme Court that whereas sub-section (2) of section 29 is confined to an application by a landlord for possession from his tenant, sub-section (2) is not so confined and therefore a tenant can apply for possession against any one including the landlord. But for such an application the condition is that he must be one who is "entitled to possession" of the land in question under any of the provisions of this Act. Thus it is held that in all cases where a tenant is entitled to possession of land under any of the provisions of the Act, he has a right under section 29 (1) to apply to the Mamlatdar for restoration of possession against any one including the landlord and it is the duty of the Mamlatdar, if satisfied that the tenant is entitled to such possession under any of the provisions of the Act, to restore possession to him. The Supreme Court further went on to hold as follows: