1. This Special Civil Application arises under the following circumstances; Prior to November 24, 1956, the petitioner was cultivating S.No.191 of Vina Village in Nadiad Taluka of Kaira District. This S.No. admeasures 2 acres and 13 gunthas. According to the petitioner he had been cultivating this S.No. for more than 20 years as a tenant and respondent No.1 herein was the owner of this property. According to the petitioner, since he continued to be in possession as a tenant on April 1, 1957, that being the tillers' day, he had become entitled to purchase the land as a deemed purchaser under Section 32 of the Bombay Tenancy & Agricultural Lands Act (hereinafter referred to as the Act). According to the petitioner he was paying a share of the crop to the owner as and by way of rent. On April 15, 1966, the petitioner applied to the Mamlatdar under Section 70(b) of the Act for a declaration that he was a tenant on that date in respect of this land, S.No.191 of Vina village. This Application was rejected by the Mamlatdar. According to the Mamlatdar, the petitioner had surrendered his tenancy rights in favour of the deceased landlord, Chhotalal, as far back as November 24, 1956, and hence from that date onwards he had ceased to be the tenant and, therefore, he could not be deemed to be the purchaser of this land. Against this order of the Mamlatdar, the petitioner went in appeal and the appeal was disposed of by the Deputy collector, Kaira, at Kaira. The Deputy Collector held that there was no valid surrender and he allowed the appeal and set aside the order passed by the Mamlatdar. He also came to the conclusion that the petitioner was cultivating the land as a tenant on April, 1957 and hence had become the deemed purchaser in respect of this land. Against the decision of the Deputy Collector, Kaira, the owner went in revision to the Gujarat Revenue Tribunal and by its order dated April 26, 1968, the Tribunal reversed the order of the Deputy Collector, Kaira and restored the order of the Mamlatdar and dismissed the petitioner's application under Section 70(b). The Tribunal held that there was no (sic) valid surrender of the tenancy rights of the petitioner and hence the petitioner could not be said to have become a deemed purchaser. The present Special Civil Application has been filed against this order of the gujarat Revenue Tribunal, under Article 227 of the Constitution.
2. The Tribunal has observed in its judgment:--
'It is true that the order has not stated in so many words that the land is surrendered to the landlord. But the order does state that the opponent was a protected tenant, that he made an application to surrender the land, that in his statement, dated 4-8-56 he stated that he did not want to cultivate the land further and did not want to purchase it and that in spite of the fact that he was explained his rights it was found that no threat, inducement or pressure had been exercised upon him to surrender his rights. Under Rule 9 of the Bombay Tenancy and Agricultural Lands Rules it is necessary to be stated by the Mamlatdar after such inquiry as he thinks fit that the tenant understood the nature and consequences of the surrender and also that it was voluntary and shall endorse his findings on the instrument of surrender. This was done . . . . . . . . . . we are of the opinion that it has been established that the opponent made a legal and valid surrender.' Under Section 15(1) of the Act as it stood on the statute book on November 24, 1956. It was provided that a tenant may terminate the tenancy in respect of any land at any time by surrendering his interest therein in favour of the landlord; provided that such surrender shall be in writing and verified before the Mamlatdar in the prescribed manner. For finding out as to what is the prescribed manner, one has to go to the Bombay Tenancy & Agricultural Lands Rules, 1956, made by the government under the rule-making power conferred upon if by Section 82 of the Act under S. 82(2) (d), the State Government may provide for the manner of verifying the surrender of a tenancy under Section 15. Rule 9 of the rule was in these terms:-- 'The Mamlatdar when verifying the surrender of a tenancy by a tenant in favour of the landlord under Section 15 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 instrument of surrender.'
The Tribunal has found as a fact in the instant case that the petitioner and surrendered his tenancy by an instrument of surrender. Secondly, that written instrument of surrender was verified before the Mamlatdar and at the time of verification, as required by rule 9, on that instrument of surrender the Mamlatdar had endorsed his finding to the effect that he had satisfied himself after inquiry that the tenant understood the nature and consequences of the surrender and that it was voluntary and that he was not induced by inducement, coercion, threat or promise. It is true that there is no order by the Mamlatdar ordering that the surrender shall take effect but when one examines Section 15(1) and Rule 9, one finds that neither of these two provisions requires the Mamlatdar to pass any order regarding surrender. In order that a surrender under Section 15 shall be valid, the following ingredients must be present. There must be an instrument of surrender in writing. Secondly, the surrender must be verified before the Mamlatdar. Thirdly, the Mamlatdar must satisfy himself after such enquiry as he thinks fit that the tenant understands the nature and consequences of the surrender and that the surrender is voluntary; and fourthly, the Mamlatdar must endorse his finding in that behalf on the instrument on surrender. Reading Section 15 of the Act and Rule 9 together these are the four requirements of a valid surrender and if all the four requirements are present as they were present in the instant, case requirements of Section 15 and Rule 9 are completely satisfied and it could be said to be a valid surrender contemplated by Section 15 since it meets with the requirements both of Section 15 as well as of Rule 9. It is true, as Mr. Shah has emphasized that there was no order passed by the Mamlatdar directing that possession of the land should be handed over to the owner when the surrender took place. Mr. Shah has contended that under Section 29(2) of the Act, no landlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar and he has contended that in this case, there was no order of the Mamlatdar directing that possession should be handed over to the owner of the property. Mr. Shah relied upon the decision of a full Bench of the Bombay High Court in Madho tatya v. Maharashtra Revenue Tribunal, 73 Bom LR 755 = (AIR 1971 Bom 106 (FB) ). The Full Bench in that case was considering the provisions of Section 36(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, which is in terms identical with Section 29(2) of the Act before me and Section 20 of the Act before the Full Bench was in terms identical with Section 15 of the Act before me. The full Bench held that Section 36(2) of the Act before the Full Bench is plenary and controls Section 20 of that Act; and hence without an order of possession of the Tahsildar a tenant does not cease to be a tenant, eventhough he has handed over possession of the land he held as a tenant and even though the surrender is verified under the proviso to Section 20 read with Rule 11 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) rules, 1959. The consent or willingness of the tenant to surrender is irrelevant and does not affect this rule. The Full Bench further held that an order for possession need not necessarily be passed upon a separate application under Section 36 of the Act. It is sufficient if such an order is passed at the item when the surrender comes up for verification under Section 20 of the Act. It appears that the full Bench considered different decisions delivered by one or the other of the Division Benches and also considered the decision of the Supreme Court in Dahya Lala v. Rasul Mahomed, 65 Bom LR 328 = (AIR 1964 SC 1320). This decision of the Full Bench of the Bombay High Court was delivered on September 12, 1969. From the report of the decision of the Full Bench and from the discussion it does not appear that the attention of the Full Bench was drawn to another decision of the Supreme Court in Vallabhbhai v. Bai Jivi, AIR 1969 SC 1190 = (10 Guj LR 829). In that case the Supreme Court was concerned with the interpretation of Section 29 and Section 15 of the Act before me i.e. with the provisions of law identical in terms with the provisions of Sections 36 and 20 of the Act before the full Bench. It is unfortunate that the attention of the full Bench of the Maharashtra High Court, which delivered the said judgment on January 10, 1969, was not drawn to this decision of the Supreme Court. The basis on which the full Bench decision proceeds is, as it appears from the judgment, on page 759 of the report, that even after surrender which is duly verified and which is in consonance with the provisions in Section 20 of the act before the full Bench, the tenant does not cease to be a tenant. Kotwal, C.J. delivering the judgment of the Full Bench has observed at page 759 of the report:--
'All that Section 20 says is that the tenancy is terminated upon the tenant surrendering his interest as a tenant in favour of the landlord. We have already shown that the definition includes in the word 'tenant' a person who is in lawful possession or cultivation. Such a person would by the mere fact of possession be a tenant but he would thereby enter into a statutory relationship with the landlord, and all that S. 20 is that by any act of surrender on his part it is that statutory relationship which is put an end to. But the section does not say that he will cease to be a tenant. Indeed, he cannot cease to be a tenant so long as he continues in possession, because being in lawful possession he is deemed to be a tenant. Section 20 does not speak of possession at all. Therefore, in the case of a deemed tenant, Section 20 cannot possibly have the result of making the tenant cease to be a tenant unless an order taking away his possession is also passed.'
In AIR 1969 Sc 1190 (supra) Shelat, J. delivering the judgment of the Supreme court has observed in para 5 at page 831 of the report:--
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 Section 31 and 31-A 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 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.'
The Supreme Court has placed the above interpretation on Section 15 of the Act and interpretation on Section 15 of the and it proceeds upon the footing that if there is a valid surrender within the meaning of Section 15, the tenancy comes to an end on such valid surrender. The tenant thereafter ceases to be a tenant and the relationship of landlord and tenant comes to an end thereafter there is no question of the landlord having to secure any order for possession because at the time of surrender itself the tenant would deliver possession of the land till then in his cultivation to the landlord. Otherwise there is no meaning of the words 'surrender of the tenancy'. As I stated earlier, it is unfortunate that this decision in Vallabhbhai's case, AIR 1969 SC 1190 (supra) was not brought to the attention of the Full Bench of the Bombay High Court because the Full Bench proceeds upon the footing that even though there may be a valid surrender, the tenant does not cease to be a tenant and he continues to be a tenant until there is an order passed by the Mamlatdar or the Tahsildar, as the case may be, directing possession to be handed over. I may point out that under Section 2(18)(s), 'tenant' means a person who holds land on lease and includes a person who is deemed to be a tenant under Section 4. It is in the light of this definition of the word 'tenant' occurring in Section 2(18) that the Supreme Court in Vallabhbhai's case (supra) interpreted the provisions of Section 15(1) of the Act before me, equivalent to Section 20 of the Act before the Full Bench of the Bombay High Court.
3. Mr. Shah, for the petitioner has drawn my attention to the decision of the Supreme Court in Bhagwant Pundalik v. Kishan Ganpat Bharaskal, Civil Appeals Nos. 1409 and 1721 of 1966, decided by the Supreme Court on 19.10.1970 (reported in AIR 1971 SC 435). The Supreme Court in that case was concerned with the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958; and considered the provisions of Sections 20 and 36 of the Act. Mr. Shah has pointed out to me the following passage from this decision of the Supreme Court:-
'Counsel for the appellant contended that Section 36(2) does not commence with the expression 'Notwithstanding any agreement, usage, decree or order of a court of law' as Section 19 of the Act does, and on that account it may reasonably be inferred that the Legislature intended that only tenants shall be deemed entitled to possession within the meaning of Section 36(1) who were dispossessed by fraud, coercion or misrepresentation, and not tenants who had voluntarily parted with possession of the lands. We are unable to agree with that contention. Section 19 provides that notwithstanding any agreement, usage, decree or order of a court of law tenancy of any land held by a tenant shall not be terminated except in the cases specified therein. Thereby it is expressly enacted that surrender shall be in writing and shall be verified in the prescribed manner. Surrender of tenancy which does not comply with the requirements of Section 20 is ineffective. Again sub-section (2) of Section 36 imposes a disability upon the landlord from obtaining possession of any land occupied by a tenant except under an order of the Tahsildar. The terms of sub-section (2) of Section 36 are explicit; they are not subject to any implication that possession obtained with the consent of the tenant, but without an order of the Tahsildar is valid.'
I may point out that the decision of the Full Bench of the Bombay High Court was brought to the attention of the Supreme Court; and the Supreme Court observed:-
'In the present case there is no surrender of tenancy in writing and no verification of surrender by the Tahsildar. We need express no opinion on the question whether mere verification by the Tahsildar. We need express no opinion on the question whether mere verification by the Tahsildar without an order of the Tahsildar authorising the landlord to obtain possession disentitles the tenant to claim possession under Section 36(1).'
It may be further pointed out that in Bhagwant's case, AIR 1971 SC 435 (supra), there was no valid surrender inasmuch as there was no written instrument of surrender; nor was there any verification before the Mamlatdar or Tahsildar. Therefore, there was no valid termination of the tenancy within the meaning of Section 20 of the Act with which the Supreme Court was dealing, equivalent to Section 15 of the Act before me. In this decision of the Supreme Court, though the decision of the Bombay High Court Full Bench was before it, the Supreme Court left the question open as to whether mere verification by the Tahsildar without an order of the Tahsildar authorising the landlord to obtain possession disentitles the tenant to claim possession. Under Section 36(1) a tenant entitled to possession of any land under any of the provisions of the Act or as a result of eviction in contravention of sub-section (2), may apply in writing for such possession to the Tahsildar. This provisions of Section 36(1) is identical with the provision of Section 29(1) except that the words or as a result of eviction for contravention of sub-section (2)' which found their place in Section 36(1) of the Act before the Supreme Court and the Bombay Full Bench are not to be found in Section 29 of the Act before me. To my mind, the question which was left open by the Supreme Court in Bhagwant's case, AIR 1971 SC 435 (supra) is already covered by the decision of the Supreme Court itself in the earlier case of AIR 1969 SC 1190 (supra); because there the Supreme Court has pointed out that once the surrender satisfies the two requirements of Section 15(1) of the Act, 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. If the tenancy comes to an end it necessarily follows that no subsequent application under Section 29(1) can be made by the tenant and further the possession of the landlord after the date of the surrender is lawful and he cannot be dispossessed of that land. As a matter of fact, once there is a valid surrender, he ceases to be the landlord because the relationship of landlord and tenant has been snapped by a valid surrender which satisfies the requirements of Section 15 of the Act. Under these circumstances, in my opinion, the decision in Vallabhbhai's case (supra) directly applies; and the interpretation placed by the Supreme Court in that case would directly govern the interpretation of the sections before me.
4. Mr. Shah, for the petitioner, contended that at p. 832 of the report in 10 Guj LR 829 = (AIR 1969 SC 1190), the Supreme Court has purported to state that the tenant continues to be entitled to possession even, when there is a surrender under Section 15. But this contention must be rejected. On the contrary what the Supreme Court has pointed out is that there is a distinction between Section 15 and Section 37. Section 37 deals with a revival of tenancy; whereas if there is no valid surrender under Section 15, the relationship of landlord and tenant still continues and, therefore, it is a question of restoration of possession to the tenant. Under Section 37 of the Act, there is an express provision for restoration of possession since that section deals with revival of tenancy. If the tenancy is not terminated as required by law, it must be deemed to have continued and if a tenant is out of possession though he is entitled to possession by virtue of the fact that the tenancy still continues, he can apply for restoration of possession; and under these circumstances he can make an application. It is in this context of comparison of provision of Sections 37 and 15 that the Supreme Court has observed as follows:-
'It is true that Section 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 as 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 back possession under Section 15 itself for under sub-section (2) the landlord becomes entitled to retain the land only if the surrender in accordance with the provisions of Section 15.'
The words 'the tenant continues to be entitled to possession' occurring in this passage must be read in the context in which those words occur, viz., if there is no valid surrender under Section 15, the tenancy continues and the tenant continues to be entitled to possession. These words on which Mr. Shah relies cannot be torn out of the context; and when read in the context, the meaning becomes clear and there is no departure from what the Supreme Court has stated earlier in the same paragraph.
5. Under these circumstances, with great respect to the learned Judges of the Full Bench who decided Madho Tatya's case, 78 Bom LR 755 = (AIR 1971 Bom 106) (supra), I am unable to follow their decision in view of what has been stated by the Supreme Court in Vallabhbhai's case, AIR 1969 SC 1190 (supra)
6. In the instant case, the Tribunal has found that all the requirements of Section 15 of the Act and Rule 9 of the Rules were satisfied; and the Tribunal was, therefore, right in coming to the conclusion that there was a valid and legal surrender by the petitioner to the landlord on November 24, 1956. The mere fact that there was no formal order by the Mamlatdar regarding the surrender is totally immaterial, to my mind. As a matter of fact, there is no provision anywhere in Section 15 or in the Rules which would require the Mamlatdar to pass a formal order. All that he has to do is to verify that the surrender is a voluntary surrender and he has to satisfy himself that the tenant is not being deceived in any manner in passing the instrument of surrender. He has further to endorse on the instrument of surrender itself his satisfaction as contemplated by Rule 9 but beyond such verification and endorsement he has not to do anything else. He is not required to pass any formal order regarding surrender and, therefore, Mr. Shah's contention about there being no order by the Mamlatdar regarding surrender, must be rejected.
7. Under these circumstances, the Revenue Tribunal was right in coming to the conclusion that after November 24, 1956, when the surrender was verified by the Mamlatdar and when the endorsement was made by the Mamlatdar on the instrument of surrender, the petitioner had ceased to be the tenant of the first respondent and that at the time when the application was made in 1956, he was not a tenant of the first respondent. This Special Civil Application, therefor, fails and is dismissed. Rule is discharged. The petitioner will pay the costs of this petition to the first respondent.
8. Petition dismissed.