2003 (10) TMI 646 - SC - Indian Laws

Interpretation of Section 32(1B) which was inserted by amending Act 49/ 69 in Bombay Tenancy and Agricultural Lands Act, 1948 Whether the voluntary surrender which is not in terms of Sections 15 and 29 is a valid one?

Issues Involved:
1. Interpretation of Section 32(1B) of the Bombay Tenancy and Agricultural Lands Act, 1948.
2. Validity of voluntary surrender of tenancy not in compliance with Sections 15 and 29 of the Act.
3. Legality of possession obtained by the landlord without following the prescribed procedure.
4. Impact of the decision in Dhondiram Tatoba Kadam v. Ramchandra Balwantrao Dubal on the present case.
5. Whether the landlord's transfer of land to a third party affects the tenant's right to restoration of possession.

Detailed Analysis:

1. Interpretation of Section 32(1B) of the Bombay Tenancy and Agricultural Lands Act, 1948:
The Supreme Court examined the insertion of Section 32(1B) by the amending Act 49 of 1969, which allows for the restoration of possession to tenants dispossessed before April 1, 1957, otherwise than by an order of the Tahsildar. The Tahsildar is empowered to restore possession to such tenants if the land is in the possession of the landlord or his successor on July 31, 1969, and has not been put to non-agricultural use by that date. The Court emphasized that the tenant must undertake to cultivate the land personally and that the land held must not exceed the ceiling area.

2. Validity of Voluntary Surrender of Tenancy Not in Compliance with Sections 15 and 29 of the Act:
The Court reiterated that the relationship between landlord and tenant is governed by the provisions of the Act, specifically Sections 15 and 29. Section 15 mandates that a surrender of tenancy must be in writing and verified before the Mamlatdar. Section 29 outlines the procedure for taking possession, requiring the landlord to obtain an order from the Mamlatdar. The Court held that any voluntary surrender not complying with these provisions is invalid. This view was supported by earlier decisions in Ramchandra Keshav Adke and Bhagwant Pundalik, which emphasized the mandatory nature of these sections to protect tenants from coercion and undue influence.

3. Legality of Possession Obtained by the Landlord Without Following the Prescribed Procedure:
The Court found that the landlord's possession obtained without following the mandatory provisions of Sections 15 and 29 is illegal. Even if the landlord takes physical possession, the right to possess remains with the tenant, who can recover possession in accordance with the law. The Act is a beneficent statute intended to protect tenants, and any deviation from the prescribed procedure renders the landlord's possession invalid.

4. Impact of the Decision in Dhondiram Tatoba Kadam v. Ramchandra Balwantrao Dubal on the Present Case:
The Court noted that the decision in Dhondiram Tatoba Kadam, which held that any voluntary surrender is valid, did not consider the mandatory provisions of Sections 15 and 29. The Court declared this decision per incuriam, meaning it was rendered in ignorance of binding precedent and statutory provisions. The Court emphasized that the earlier decision in Ramchandra Keshav Adke, which required compliance with Sections 15 and 29 for a valid surrender, should be followed.

5. Whether the Landlord's Transfer of Land to a Third Party Affects the Tenant's Right to Restoration of Possession:
The Court examined the respondent's claim that the land was transferred to a third party, Bajrang Maruti Kanse, through an agreement for sale. Upon review, the Court found that the transaction was actually a mortgage with the right of re-conveyance, not an outright sale. As no registered document was executed to transfer interest in the land, the legal title and possession remained with the landlord. Therefore, the tenant's right to restoration of possession under Section 32(1B) remained intact.

Conclusion:
The Supreme Court set aside the High Court's judgment, which had relied on the per incuriam decision in Dhondiram Tatoba Kadam. The Court upheld the mandatory nature of compliance with Sections 15 and 29 for a valid surrender of tenancy and confirmed the tenant's right to restoration of possession under Section 32(1B). The appeal was allowed, and the judgment under challenge was set aside, with no order as to costs.

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