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PETITIONER: JUNJARAM

       Vs.

RESPONDENT: BHAURAO & ORS.

DATE OF JUDGMENT:       22/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1885            JT 1996 (3)    55  1996 SCALE  (2)597

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Abatement set aside. Substitution allowed.      Delay condoned.      This appeal  by special  leave arises from the order of the High  Court of  Bombay, Nagpur  Bench dated  December 4, 1980 in Writ Petition No. 1986/74 filed under Article 227 of the Constitution.  The admitted facts are that the appellant was a tenant in respect of the lands situated in Brahmanwada in Murtizapur  Taluk, District  Akola in  Vidarbha region of Maharashtra State. At the relevant time, Berar Regulation of Agricultural Leases  Act, 1951  [Act  No.24/5]  (for  short, ‘Berar  Act’)  was  in  vogue.  The  lands  admittedly  were agricultural lands  admeasuring 29 acres 10 guntas in Serial No.47.  By   a  deed   dated  January  2,  1956  lands  were surrendered as stipulated thus:      "In the  year 1955-56, he had taken      loans  and  executed  a  promissory      note. He  discharged  part  of  the      debt. He  was due  of a  sum of Rs.      300/-  and   he   was   unable   to      discharge the  same.  Consequently,      he was  surrendering his  protected      lease tenancy rights as a lessee to      the landlord  in lieu  of discharge      of the debt."      Subsequently, within  one year  he filed an application under Berar  Act for  its  restoration  to  him.  While  the authorities,  namely,   the  Mamlatdar   and  the  appellate authority held  that  surrender  was  illegal  and  directed restitution of  the possession of the land to the appellant, in revision  the Deputy Commissioner set aside the order and remitted  the   matter  for   fresh  consideration.  Pending decision, the  Bombay Tenancy & Agricultural Lands (Vidarbha region) Act,  1958 (for  short, the  ’Act’)  had  come  into force. As  an abundant caution, an application under Section

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10 was also filed for restoration of possession of self-same land. Ultimately,  in this proceedings, the Revenue Tribunal again had  held that since the appellant had surrendered the possession  of   the  land,   he  is  not  entitled  to  the restoration the  claim being  barred by  limitation. It  was held that  the respondent  being a  widow  of  the  original landlord on demise of her husband, the protected tenancy had ceased against her. Therefore, the appellant is not entitled to avail  of the  protected tenancy  rights as  against  the widow which  was upheld  by  the  High  Court  in  the  writ petition. Thus this appeal by special leave.      Shri V.A.  Bobde, learned  senior counsel appearing for the appellant,  contended that  the  premise  on  which  the Tribunal and  the High Court have proceeded is wrong in law. On the  date  when  the  alleged  surrender  was  made,  the landlord was  alive and  had taken  possession of  the land. Therefore, on  the date  when the  surrender is  said to  be voluntarily  made  the  protected  tenancy  was  subsisting. Section 6(1) of the Berar Act mandates that such a surrender shall be  only by registered instrument. Since, admittedly, the surrender  was not  through registered  instrument,  the said surrender  does not bind the appellant. The approach in that behalf  is not correct in law. Shri V.B. Joshi, learned counsel appearing  for the  respondent, contended that while the proceedings  were pending  before the primary authority, the Act had come into force. Thereunder an application under Section 10  thereof came  to be filed which was found not to have been  filed within limitation. Even otherwise since the respondent was a widow, there is no protected tenancy rights available under  the Act  to the  appellant. Therefore,  the High Court  in either event was right in concluding that the appellant was  not entitled to the benefit of the provisions of the Berar Act or the Act.      Regard being  had to  the respective  contentions,  the question arises  whether the  appellant is  entitled to  the restoration of  the possession of the lands which admittedly had been  taken possession  of, under  surrender deed  dated January 3, 1956? Section 6(1) of the Berar Act reads thus:      "A   protected   lessee   may,   by      delivering to  the landholder,  not      less than  30 days  before the date      of   the    commencement   of   the      agricultural  year,   a  registered      document executed  in favour of the      landholder surrender his rights and      thereupon he  shall cease  to be  a      lessee from  the agricultural  year      next following such date."      It would clearly indicate that the legislature intended to protect  the leasehold  rights of  a protected tenant and the surrender being in derogation of the right, Section 6(1) enjoins to divest that right only when the tenant surrenders agricultural leases  only by  a registered document executed in favour  of the  landholder  surrendering  tenancy  rights thereunder. Then  only the  protected tenant  ceases to be a lessee of  the agricultural  lands. Admittedly,  though  the document Annexure  I marked  in this paper book was executed on January  3, 1956 surrendering his rights in the aforesaid land it  was not  through a  registered instrument and that, therefore, the surrender is clearly illegal and in violation of mandatory provision. The contention of Shri Joshi is that the  evidence   on  record  shows  that  the  appellant  had voluntarily surrendered  and it is not vitiated by any fraud or coercion  and, therefore,  the finding is well justified. We find  no force in the contention. It is seen that only if

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the document  is a  registered instrument  the  question  of enquiry into fraud or coercion would arise and the Tribunals need to  go into  that question.  If the instrument is not a registered instrument,  then the  question of genuineness or fraud or  coercion need  not be  gone into  as the surrender gets crushed  under the  fringing facts  of Section  6(1) of Berar Act.      It is  then contended  that the  appellant had  made an application made  under Section  10 of  the Act.  Since  the application had not been filed in the prescribed limitation, the Tribunal  and the High Court were right in rejecting the application. This  contention also has no force. Admittedly, as on  the date  when the  Act  had  come  into  force,  the proceedings  under   Berar  Act   were  pending  before  the competent authority.  The application under Section 19(2) of the Berar Act was filed within limitation. The question then is: whether those proceedings could be disposed of under the Act or  abated under  the Act?  Section 132 of the Act reads thus:      "132.(1)  The   provisions  of  the      enactments specified  in Schedule I      are hereby  repealed to  the extent      specified in  column 4  of the said      Schedule.      (2)  Nothing   in  sub-section  (1)      shall, save  as expressly  provided      in this Act, affect or be deemed to      affect -      (i)  any  right,  title,  interest,      obligation  or   liability  already      acquired,   accrued   or   incurred      before  the  commencement  of  this      Act, or      (ii)  any   legal  proceedings   or      remedy  in   respect  of  any  such      right, title  interest,  obligation      or liability  or anything  done  or      suffered before the commencement of      this Act,      and any  such proceedings  shall be      instituted, continued  and disposed      of, as  if this  Act had  not  been      passed.      (3)    Notwithstanding     anything      contained in sub section (2)-      (a)   all   proceedings   for   the      termination  of   the  tenancy  and      ejectment of  a tenant  or for  the      recovery  or   restoration  of  the      possession of  the land  under  the      provisions  of  the  enactments  so      repealed, pending  on the  date  of      the commencement of this Act before      a Revenue  Officer or  in appeal or      revision before  any  appellate  or      revising authority  shall be deemed      to have been instituted and pending      before the  corresponding authority      under  this   Act  and   shall   be      disposed of  in accordance with the      provisions of this Act, and      (b) in  the case  of any proceeding      under any  of the provisions of the      enactments  so   repealed,  pending      before a  civil court on such date,

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    the provisions  of Section  125  of      this Act shall apply."      A reading  thereof indicates that the provisions of the Berar Act  stood repealed by operation of sub-section (1) of Section  132.   Sub-section  (2)   saves  all   the   rights postulating  that   nothing  in   subsection-  (2)  save  as expressly provided  in the  Act, affected  or was  deemed to have affected  any  right  title,  interest,  obligation  or liability already  acquired, accrued  or incurred before the commencement of  the Act.  Since the right to restoration of agricultural land, a statutory right under the Berar Act had already accrued  to and  been  acquired  by  the  appellant, notwithstanding its  repeal, by operation of sub-section (1) of Section  132, the  said right continues to subsist and be available to  the appellant.  Sub-section (3)  is  merely  a procedural part  and  says  that  all  proceedings  for  the termination of  the tenancy,  ejectment of  tenant  for  the recovery or  restoration of the possession of the land under Berar Act pending on the date of the commencement of the Act before a  Revenue Officer  in appeal  or revision,  shall be deemed  to  have  been  instituted  and  pending  under  the corresponding authority  under the Act and shall be disposed of in  accordance with  the provisions  of the Act. Thus the proceedings pending  under Berar  Act did  not  get  abated. Consequently, the  proceedings under  the Berar Act shall be disposed of under sub-section (3) of Section 132 as if those provisions are  in operation to the extent of the rights had under the  Berar Act  and saved  by operation of sub-section (2) of Section 132 of the Act.      Since right  to restoration of the possession was saved by operation  of sub-section  (2) of  Section 132 of the Act read with  Section 19  of the  Berar Act,  the same shall be disposed of  under the Act as the rights under the Barar Act are available  to the  appellant. Consequently, there was no necessity for  the appellant to file a fresh application for restoration as  the application  for restitution was pending before the competent authority. The Revenue Tribunal and the High Court,  therefore,  were  wrong  in  holding  that  the application for restoration was barred by limitation.      It is then contended that the respondent being a widow, the right  to protected  tenancy ceases  as against  her and that, therefore,  the order was not vitiated by any error of law. This  contention also  is not correct in law. As on the date of the surrender, admittedly, her husband was alive and surrender was in his favour. No doubt, subsequently, he died and  the  respondent  became  widow.  On  the  date  of  the surrender, the  right was  available to her husband and even subsequently on  demise of  her husband,  the existing right continued to  exist and  was not  divested by  any statutory operation.  Therefore,  the  High  Court  and  the  Tribunal wrongly proceeded on the premise that she being a widow, the appellant ceased  to have  any protected  tenancy right  for restitution of the possession of land as against the widow.      The appeal  is, therefore, allowed and the order of the High Court  and the  Tribunal are  set aside and that of the original authority is restored. No costs.