(1) This petition under Article 227 of the Constitution raises an interesting and important point under section 21 of the New Tenancy Act (Bombay Act No. 99 of 1958).
(2) Petitioner No. 1 Haribhau was a landlord of survey no. 7/1, area 2 acres 10 gunthas, of village Khadatgaon in Khamgaon taluq of Buldana district. Respondents Nos. 4 and 5 to this petition, Sukhdeo and Waman sons of Raoji, were the tenants of this field. They executed a deed of surrender on 7th of February 1958 and delivered possession of the field to Haribhau. Thereafter Harbhau sold the field to petitioner no. 2 Rama Tukaram under a registered sale-deed dated 20th of March 1958. It is an admitted position that the surrender effected by Sukhdeo Raoji and Waman Raoji on 7-2-1958 was verified and was found to be v laid by the Tahsildar on 26-6-1958 under Berar Regulation of Agricultural Leases Act. Petitioner No. 2 Rama Tukaram continued to be in peaceful possession and enjoyment of this property thereafter.
(3) On 3rd March 1960 an Officer with the Revenue Department, called the Tenancy Revenue Inspector, made a report against Haribhau (petitioner no. 1) to the Tahsildar alleging that Haribhau had obtained possession of survey no. 7/1 by surrender from the protected lessees Sukhdeo Raoji and Waman Raoji on 8-2-1958., We have taken this information from the order of the Naib-Tahsildar dated 7th of January 1961, though the proceedings have been treated as falling under section 21 of the New Tenancy Act. The report was that the landlord Haribhau, who had obtained possession of the field as a result of surrender, had failed to give intimation in the prescribed manner and in the prescribed form to the Tahsildar within three months from the commencement of the Bombay Tenancy and Agricultural Lands Act, 1958 (No. 99 of 1958), as required by section 21 (3) of that Act.
(4) On receipt of this report, notices were issued to both the petitioners to show cause why the possession of the suit field & tenancy thereof should not be restored to Sukhdeo and Waman, i.e. the previous tenant. Notices were also issued to the previous tenants Sukhdeo and Waman, and it appears that, at one state, they had filed statement that they were not interested in coming on the land or being restored to their previous status as tenants. But somehow they made a subsequent statement claiming the right of restoration if permissible under the law. As for petitioner No. 1 Haribhau, the original landlord, he stated that he was not a landlord on the date on which the Act came into force and that the surrender had been duly verified and he had duly complied with the provisions of the law then in force. As he was not a landlord on the date of the coming into force of the New Tenancy Act, he could not be afffected. The contention of the petitioner NO.2, Rama ukaram, was that he was not the landlord who held possession as a result of surrender , because the surrender was obtained by Haribhau, thereafter Haribhau obtained possession, and after having obtained both possession and title in himself, Haribhau had transferred the field claimed that he had acquired the property from the original owner Haribhau as well as possession and that he had nothing top do with the previous tenants Sukhdeo and Waman, nor did he dispossess hem.
(5) The Naib Tahsildar held that Haribhau the original landlord and Raman Tukaram the subsequent purchaser, who was a landholder on the date of the commencement of the Act. having failed to give intimation in writing as required by section 21 (3) in the prescribed manner to the Tahsildar, Raman Rukaram as a subsequent purchaser was also liable, as he had purchased the interest and title from the original landlord on the date of the coming into force of the Act was hit by section 21 (3) and section 21 (5) of the Act. The Tahsildar, therefore ordered that possession is to be restored to the protected lessees under section 21 (5) of the Act as no intimation was given at all.
(6) Against this order both the petitioners preferred an appeal before the Sub-Divisional Officer. That officer observed in paragraph 4 of his order that the landlord, who obtained possession of the land from the tenant by virtue of a surrender executed by a tenant at any time during 1-8-57 to 30-12-58, must give an intimation thereof to the Tahsildar within the time prescribed in section 21 (3) of the New Tenancy Act. That officer, did not consider the question whether Rama Tukaram who was on the land on the date of the coming into force of the Act was required to give intimation or was affected by the failure of his predecessor-in-title Haibhau to give intimation. The order of the Tahsildar restoring possession to tenants was, however, confirmed.
(7) The matter was then taken before the Revenue Tribunal of the State by both the petitioners. The Tribuanl had already considered this question in one of their previous decisions reported in Deorao v. Narayan 1961 Nag LJ 663. In view of that decision the Tribunal held that the expression 'landlord' must include a person who is successor-in-interest of the landlord who had obtained possession as a result of surrender between 1-8-1957 and 30-12-1958. The reasoning with which this result has been arrived at is stated in the previous decision of the Tribunal. There was an additional feature in Deorao's case 1961 NLJ 663, that Deorao was shown to have knowledge of the previous surrender and delivery of possession to his predecessor-in-title. In the present case there is no such allegation or a finding. Referring to this additional reason for their view, the Tribunal observes as follows in paragraph 6 to 8 of that decision:-
'6. . . . . . .It is, therefore, quite evident that both the applicants were aware of the surrender and they cannot be heard to say that they were innocent purchasers of the land in question. Form No.IV-prescribed by rule 12 is no doubt intended to be used by the original landlord but the same form is capable of being used by his successors-in-interest either by inheritance or sale with suitable modification. The New Tenancy Act which made it obligatory on the landlords who had taken surrender between 1-8-57 and 30-12-58 had designedly provided for three months' time to give intimation of the surrender so that the provisions of the Act were not defeated by such landlords. The New Tenancy Act had limited the rights of both the landlords and tenants to hold land up to three family holdings as would be clear from a number of provisions such as section 21 (1), section 38 (3) (a) and (b), section 42 (a) and (b), section 46, section 89, proviso to sections 122(2) and 122(4) etc. This object would be certainly defeated if the successors-in-interest of the landlords are allowed to evade the provisions of section 21 (3) It has been laid down in a string of cases that the Court should not permit the intention of the Legislature to be defeated or to be rendered a nullity; Emperor v. Ranchhodial Air 1948 Bom 370 , and Manohardas v. Golam AIR 1949 Cal 225. There is no question of hardship in this case as the purchasers can pursue their remedy for failure of consideration in a competent Court. In the present case, however, the applicants who knew about the surrender must be presumed to know the consequences of their vendors' failure to give intimation of the surrender as they have purchased the property subject to the restrictions imposed by law on landlords who have obtained surrender of the tenancy.
7. We have, therefore, no hesitation in coming to the conclusion that the applicants who are successors-in-title of the original landlord cannot repudiate their liability to be ejected under sub-section (5) of section 21 as they have stepped into the shoes of the original landlord with the knowledge of surrender . In construing sub-section (5) of section 21 in the manner we have done, we have borne in mind the following famous canon of construction laid down by Lord Coke in Hevdon's case 1584 76 ER 637
xx xx xx xx xx 8. To sum up, our conclusions are that-
xx xx xx xx xx (B) Even in the absence of words similar to those used in sub-section (3) of section 10 order for restoration of possession could be passed under sub-section (5) of section 21 as the landlord and his successors-in-title are liable to restore the land and tenancy. The intention of the Legislature in framing sub-sections (3) and (5) of section 21 evidently was to restore the status quo and put the tenant in possession of the land surrendered in respect of which no intimation has been given as required by sub-section (3)'
(8) This view which found favour with the Tribunal is challenged before us. Section 21 of the New Tenancy Act is as follows:-
'21 (1) Subject to the provisions of this section, where a tenancy is termination by surrender under section 20, the landlord shall be entitled to retain so much only of such land as will prevent the total area which he cultivates personally whether as tenure-holder or tenant or both from exceeding three family holdings.
(2) The Tahsildar shall hold an inquiry and declare whether the whole, or what part (if any) of the loan surrendered the landlord is entitled to retain under sub-section (1), and notwithstanding anything in that sub-section, he may adjust by reduction or increase the area of any such part to be retained, but only so as to ensure that such part is not a fragment. The Tahsildar shall declare any land surrendered, which the landlord is not entitled to retain under the provisions aforesaid, to be surplus land.
(3) In respect of a surrender made by a tenant any time during the period commencing from the first day of August, 1957, and ending on the date of the commencement of this Act, the landlord who has obtained possession of the land as a result of such surrender shall within three months from the date of the commencement of this Act, intimate the fact of such surrender in the prescribed manner and in the prescribed form to the Tahsildar.
(4) On receipt of such intimation the Tahsildar, shall notwithstanding anything contained in section 10, hold an inquiry and decide whether the surrender has been made validly in accordance with the law then applicable to such surrender and where the surrender is found to have been made validly, the Tahsildar shall decide the extent of land which the landlord shall be allowed to retain in his possession in accordance with the provisions of sub-section (2) as if the surrender had taken place after the commencement of this Act and shall declare any land surrendered which the landlord is not entitled to retain under the provisions aforesaid to be surplus land.
(5) Where the landlord fails to give intimation as required under sub-section (3) or where the surrender is found to be inv laid as a result of the inquiry held under sub-section (4), the Tahsildar shall order the restoration of the possession of the land and the tenancy thereof to the tenant,'
(9) It will be seen that the provisions of sub-section (1) and sub-section (2) of section 21 really deal with an altogether independent topic, viz., surrender of tenancies under section 20 of the Act which must necessarily mean surrenders effected after the Act came into force. then follow the three sub-sections (3), (4) and (5) which are principally germane to the decision of this petition. A close scrutiny of sub-section (3) of section 21 will show that the duty of giving an intimation of the fact of obtaining possession as a result of surrender is placed on a landlord who obtains such possession between the period fixed by the two termini i.e. 1st of August 1957 and 30th of December 1958 on which date this Act came into force in this region. Now, this intimation has to be given in the prescribed manner and in the prescribed form. For this purpose rule 12 has been made, and this rule was published in the Bombay Government Gazette of 19-2-1959. Rule 12 (1) says that an intimation in respect of the surrender of tenancy by a tenant under sub-section (3) of section 21 shall be given to the Tashildar in duplicate in Form IV by hand delivery or by registered post. Now, Form NO. IV gives the information which is to be given in respect of the surrender. That Form is as follows:
FORM IV - (See Rule 12)
intimation in respect of surrender made by tenant
The Tahsildar/Mamiatdar of.............................................................................................................Name of the applicant...................................................................................................................................Age...................................Profession...........................................Place of residence................................................................ Sir,
I am the landlord of the following lands which had been leased to the tenant/tenants shown against them ________________________________________________________________________________Tahsil Village Survey Number Pot-Hissa Number Area Name of tenant.1 2 3 4 5 6________________________________________________________________________________A.G.________________________________________________________________________________
These lands were surrendered in my favour by the said tenants during the period from 1st August 1957 to 29th December 1958 I had obtained an order from the Tahsildar verifying the surrender made by the tenants (1) Shri..............................................(2)...........................................................Copies of these orders are enclosed.
The details of the land including the above lands which I am cultivating personally as tenure holder or tenant are as follows:
________________________________________________________________________________Tahsil Village Survey Number Pot-Hissa Number Area Assessment Whether held as tenure-holder or tenant1 2 3 4 5 6 9:47 PM 2/13/027 ________________________________________________________________________________Rs. np.A.G.________________________________________________________________________________ To be deleted where not required.
Signature of the landlord.
This form itself, therefore would suggest that the information is to be given by a person, who is still the landlord of the land on the date of the coming into force of the Act or when the intimation is given. The further information that is required to be given by the Land lord is in respect of land being cultivated by him personally, either as tenure-holder or as tenant. This must again mean the information of a person who is a landlord when the information is given., i.e. on the date of the coming into force of the Act and thereafter.
(10) Assuming such information is given then sub-section (4) of section 21 comes into play. On receipt of such intimation the Tahsildar has to hold an inquiry and decide whether the surrender has been made validly in accordance with the law then applicable to such surrender and where the surrender is found to have been validly made, the Tahsildar has to decide extent of the land which the 'landlord' should be allowed to retain in his possession in accordance with the provision of sub-section (2) as if the surrender had taken place after the commencement of the Act. Now, under Sub-section (2) of section 21, the Tahsildar has to declare how much land a landlord is entitled to retain from the land surrendered under sub-section (1), i.e. land surrendered under section 20 of the Act.and sub-section (1) of section 21 in its turn lays down that even as a result of surrender to him, a landlord will be entitled to retain so much only of land as will prevent the total area, which he personally cultivated, whether as tenure-holder or tenant, or both from exceeding three family holdings. Thus the ambit of inquiry which is required to be made under sub-section (4) of section 21 will indicate that the person in whose case the area of land which he can retain is to be determined because of surrender must be the person who is a landholder or a landlord in respect of that land on the date of inquiry and on the date of the coming into force of the Act. If the landlord who obtained surrender and possession between the two specified dates has ceased to be a landlord when the Act came into force, we find it difficult to see how the rights of s successor-in- title of the ex-landlord can be determined with reference to the quantum of area which can be retained with him by taking into consideration the land which was held and might have been held by the original landlord who had obtained possession and surrender. The word 'landlord' must bear the same meaning throughout the sub-sections (3), (4) and (5) of section 21.
(11) There is another difficulty in the way of accepting the interpretation which has found favour with the Tribunal. The person who is required to give intimation is the landlord who has obtained possession of the land as a result of such surrender within the specified dates. Now, a person who has obtained possession from the previous owner, who was also in possession of the land, does not answer the description of a person who has obtained possession of land as a result of surrender. The successor-in-interest of the ex-landlord obtains possession as a result of the sale-deed and the sale in his favour and not as a result of surrender of posssession by the tenant. No duty can be, therefore, said to be cast on the landlord who has acquired land from a person who was a full owner and who had obtained possession as a result of surrender from his tenant between the two specified dates, but before the coming into force of the new Tenancy Act. It is not contended on behalf of the State that the law requires such a person to make application either, though that person is on land as a landlord on the date of the coming into force of the Act.
(12) If we accept the construction put by the Tribunal, we will be faced with this position that a previous landlord, who had obtained surrender and possession from his tenant and who had no interest in the property on the date of the coming into force of the Act, is required by the law to give an intimation to the Tahsildar about his previous surrender and acquisition of possession and if he fails to give such an intimation, the person who will be penalized for his filature is the new landlord who has acquired title as a result of a v laid sale from the ex-landlord. We do not think that the Legislature intended that 'A' should be penalized for the sins of 'B' in this manner. Unless therefore, we can find any indication of a statutory duty in the new landlord to give intimation about the fact of previous surrender and possession having been given to his predecessor-in-title between the two dates, we do not think that it is possible to hold that the person who comes on land as an owner prior to the coming into force of the Act can be visited with the penalties provided for in sub-section (5) of section 21.
(13) We do not think that there is nothing either in this section or other provisions of the Act which will permit a rule of construction to read any additional words in the use of the word 'landlord' in sub-section (3) or sub-section (4) of section 21 as if meaning. the landlord or a successor-in-title of that landlord. By the rules made and the form used and the inquiry that is required to be made under sub-section (4) of section 21 it is patent that the only person who is required to give an intimation of surrender of tenancy and possession acquired by him between the 1st day of August 1957 and the date of commencement of the Act is a landlord, who is still on land on the date of the commencement of the Act, because in respect of such landlord an inquiry, contemplated by sub-section (4) of section 21, is possible to determine whether the total land or area which he is cultivating personally as a tenure holder or tenant does or does not exceed three family holdings. We cannot apprehend any circumstances in which such information in respect of the person who had acquired land by surrender and possession between the two specified dates could at all have a bearing if the area to be retained by the landlord actually on the land on the date of the coming into force of the Act is not the same person but a different person. It does not appear that this aspect was brought to the notice of the authorities when a particular construction was claimed for the scheme adumbrated in sub-sections (3), (4) and (5) of section 21 of the Act. The provisions in Sub-section (5) of section 21,. which visit a severe penalty on the landlord without any inquiry of restoration of possession of land to tenants, if that landlord were to fail to give an intimation under sub-section (3) of section 21, also must indicate that the person who is to be inflicted with this penalty must be the person on whom the duty to intimate would fall. If that person. i.e. an ex-landlord, has already sold the property to another person, who had no hand either in obtaining surrender or possession and who was not required under the law to give an intimation under the provisions of sub-section (3) of section 21. that other person cannot possibly be deprived of his property by restoring its possession to ex-tenants of his predecessor-in-title.
(14) Thus viewed, in any manner, we must hold that the landlord who is required to give an intimation under sub-section (3) of section 21 must be a landlord in possession of the land on the date of the coming into force of the Act and if such landlord has, according to the law then in force, transferred his rights in land to another person, no action can be taken against that person for the failure of his predecessor-in-title to give intimation under sub-section (3) of section 21. IN this case, therefore, Rama Tukaram could not be visited with any penalty of action under section 21 (5) of the Act as Rama Tukaram was not the landlord within the meaning of either sub-section (3) or sub-section (5) of section 21 of the Act.
(15) In the view we take of the provisions of section 21 of the new Tenancy Act, it must be held that no action could be taken against petitioner no. 2 Rama Tukaram and that the orders of all the three authorities are without jurisdiction and must be quashed. Accordingly we allow the petition, set aside the orders of all the three authorities and direct that no action is possible in this case. The result is, the petition is allowed with costs against respondents nos. 2 and 6.
(16) Petition allowed.