http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: RAMCHANDRA KESHAV ADKE & ORS

       Vs.

RESPONDENT: GOVIND JOTI CHAVARE AND ORS.

DATE OF JUDGMENT04/03/1975

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH CHANDRACHUD, Y.V. GUPTA, A.C.

CITATION:  1975 AIR  915            1975 SCR  (3) 839  1975 SCC  (1) 559

ACT: Bombay Tenancy Act (67 of 1948)--S. 5(3)--Scope of.

HEADNOTE: Section  5(3)(b)  of the Bombay Tenancy Act  enacts  that  a tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of the landlord  provided that  such  surrender  shall  be in  writing  and  shall  be verified  before  the Mamlatdar in  the  manner  prescribed. Rule  2-A  of  the Rules states  that  the  Mamlatdar,  when verifying  a  surrender  of a tenancy  by  a  tenant,  shall satisfy  himself after such inquiry 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 document of surrender. The  appellants,  who were the landlords of  certain  lands, made an application to the Mamlatdar stating that the tenant was  willing  to surrender his tenancy in  the  agricultural land and prayed for verification under s. 5(3) of the Bombay Tenancy Act (67 of 1948).  The Mamlatdar did not verify  the surrender.  The Circle Officer recorded the statement of the tenant  and  the  landlords  and  passed  an  order  on  the application.   Mutation  entry  was made in  the  record  of rights of the village and the landlords’ name was entered in the  register as a person in actual possession of the  land. A few months later, however, the tenant made an  application for  a declaration that he was the tenant is  possession  of the land in dispute.  This was dismissed by the Tenancy Aval Karkun.  The tenant thereupon preferred an appeal before the Special Deputy Collector, who held that the order passed  by the Circle Officer was not an order passed by the  Mamlatdar as  required by the tenancy law and as such it  was  without jurisdiction and void and that there was no verification  of the surrender application as required by law.  The  revision application preferred to the Maharasthra Revenue Tribunal by the  landlords was dismissed.  The landlords’ writ  petition was  dismissed  by the High Court holding that  the  alleged surrender was a nullity as there was no compliance with  the mandatory requirements of s. 5(3) of the Bombay Tenancy Act, read with r. 2-A. On appeal to this Court it was contended that the provisions

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

of r. 2-A are directory and not mandatory and that there had been  a substantial compliance with the requirements of  the relevant provisions of the Act and the rule. Dismissing the appeal, HELD  : 1(a) The imperative language the beneficent  purpose and  importance  of  s. 5(3)(b) of the Act and  r.  2-A  for efficacious implementation of the general scheme of the Act- all  unerringly  lead  to  the  conclusion  that  they  were intended to be mandatory.  Neglect of any of these statutory requisites  would  be fatal.  Disobedience of  even  one  of these  mandates  would  render  the  surrender  invalid  and ineffectual. [844G] (b)  The  language  of s. 5(3) (b) and r. 2-A  is  absolute, explicit and peremptory.  The words provided that’ read with the words ’shall be’ repeatedly used in s. 5(3)(b) make  the termination of tenancy by surrender entirely subject to  the imperative  conditions  laid  down  in  the  proviso.   This proviso  throws  a  benevolent  ring  of  protection  around tenants.   It is designed to protect a tenant on two  fronts against two types of dangers-one against possible  coercion, undue  influence and trickery proceeding from  the  landlord and   the   other  against  the  tenant’s   own   ignorance. improvidence  and  attitude  of  helpless   self-resignation stemming  from  his weaker position in  the  tenant-landlord relationship. [844E-F] 840 (c)  The  intention of the legislature is to be  ascertained upon   a  review  ,of  the  language,  subject  matter   and importance of the provision in relation to general object to be  secured, the mischief to be prevented and the remedy  to be promoted by the Act. [843F] Liverpool Borough Bank v. Turne (1861) 30 L.). Ch. 379 at P. 380 Craise On Statute Law, 7th Edn. p. 262. referred to. In  the instant case all that the Circle Officer did was  to record the statement of the tenant and landlord and make the order.  He did not say a word that he was satisfied that the tenant had voluntarily made a surrender after  understanding its   nature  and  consequences  nor  did  he  endorse   his satisfaction on the tenants deed of surrender as required by r.  2-A,  The  requirement  as  to  the  recording  of   its satisfaction  by the authority it, the manner prescribed  by the  rule was the substance of the matter and not  an  empty formality.   In the absence of the requisite endorsement  it cannot  be  said  that there had  been  even  a  substantial compliance with the statutory requirements. [845A-C] (2)  The  rule that where a power is given to do  a  certain thing in a ,certain way, the thing must be done in that  way or not at all and that other methods    of  performance  are necessarily  forbidden is attracted with full force in  this case  because  non-verification  of  the  surrender  in  the requisite  manner would frustrate the very purpose  of  this provision.   Intention  of the legislature to  prohibit  the verification of the surrender in a manner other than the one prescribed,  is  implied in these  provisions.   Failure  to comply  with  these mandatory provisions  had  vitiated  the surrender  and  rendered it non-est for the  purpose  of  s. 5(3)(b) of the Act. [845E-G] Taylor  v. Taylor [1876] Ch.  D 426; Nazir Ahmed v.  Emperor L.R.  63 I.A. 372-AIR 1936 P.C. 253; Shiv Bahadur  Singh  v. State of U.P. [19541 S.C.R. 1098 and Deep Chand v. State  of Rajasthan [19621 S.C.R. 662 followed.

JUDGMENT:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 58 & 810 of 1968. Appeal  by special leave from the judgment and  order  dated the  5th October, 1967 of the Bombay High Court in-,  S.C.A. Nos. 695 696 of 1966. S.   T. Desai and B. R. Agarwala, for the appellants. K.   Rajendra   Choudhury   and  P.  C.   Kapur,   for   the respondents. The Judgment of the Court was delivered by SARKARIA,  J.-These  appeals by special leave  are  directed against  the common judgment, dated 5.10.1967, of  the  High Court  of Bombay dismissing two Writ Petitions filed by  the appellants  to  impugn  the orders  of  Maharashtra  Revenue Tribunal.  The material facts are these On September 8, 1953, the predecessor of appellants 1 and  2 (hereinafter  called the landlords) made an  application  to the  Mamlatdar of Miraj, that the tenant (Respondent no.  1) was  willing  to surrender his tenancy in  the  agricultural land,  bearing Survey No. 102/2, admeasuring 8 acres and  22 Gunthas, situated at village Haripur, Taluka Miraj, District Sangh in the State of Maharashtra.  The landlord prayed that the surrender in his favour should be verified under  s.5(3) ,of the Bombay Tenancy Act 67 of 1948.  To this  application the  landlord  annexed  a letter of  surrender  bearing  the thumb-impression                             841 of the tenant.  The Mamlatdar did not verify the  surrender. or  pass  any final order in the  matter.   ’The  landlord’s application’  however came up before Shri Bhokare, the  then Circle  Officer of Miraj who after recording the  statements of the tenant and the landlord, made this order on it.               "The  applicant  and the tenant  are  present.               The  tenant Shri Chaware states that the  suit               land  viz.   S. No. 102/1 measuring  8-22  and               assessed  at Rs. 44-3-0 of Haripur belongs  to               the  applicant and that he is cultivating  the               same  as a protected tenant.  He further  adds               that  he does not want to cultivate  the  same               any  longer  and  so he  is  surrendering  the               possession willingly along with crops and also               the fight as pro. tenant.               1, therefore, order that the possession of the               suit  land  should  be  handed  over  to   the               applicant with the crops and               the right  as  pro. tenant should  be  deleted               under Section               29 (i) (3) of the B.T. and AL.  Act 1948               Haripur                             Bhokare               18-9-53.                             (M.    M.               Bhokare)                               Circle Officer, Sangli." Pursuant to the above order, a Panchnama was prepared by the Talati on November 20, 1953, in which it was stated that the possession  of  this  tenancy land had  been  given  to  the landlord.  The latter executed a Kabje-Pavti to the  effect, that he had obtained the possession.  Mutation entry No. 431 was  also made in this respect in the, record of  rights  of the  village  and the name of the landlord  was  entered  as Kabzedar in actual possession.  On April 23, 1959, the land- lord sold this land to appellants 3 and 4 and respondents  2 and 3. On  9-11-1959,  the tenant made an application  against  the landlord  and his transferees (Sherikars) to the  Additional Tenancy Avalkarkun, Miraj, praying for a declaration that he was  the  tenant-in-possession of the land  in  dispute  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

further that the opponents be injuncted not to    disturb his possession over the land.  In the alternative, he prayed that if  he was found to have lost possession, the  same  be restored to him,    This  application  was  opposed  by  the landlord and his transferees on    two  main  grounds:   (1) that the tenant had duly surrendered his tenancy in 1953 and he  was  not  in possession thereafter,  and  (2)  that  his application  was  time-barred.  Both  these  (,rounds  found favour  with the Tenancy Aval Karkun, and he  dismissed  the tenant’s application by an order dated 22-11-1961. Aggrieved,  the tenant filed Tenancy Appeal No. 292 of  1962 before  the  Special Deputy Collector, Sangli.   The  tenant preferred  another  appeal  also, to  the  Deputy  Collector against  the order, dated 18-9-1953, of the Circle  Officer, Mr. Bhokare, whereby the tenant’s name was deleted from  the record  of  rights.   The Deputy Collector  held  that  Shri Bhokare’s  Order was not an order passed by a  Mamlatdar  as required  by  the  Tenancy law  and,  consequently,  it  was without  jurisdiction and void.  He further held that  there was no verification. 842 of the surrender application as required by law.  He further found  that, in fact, the tenant had never  surrendered  the tenancy,  but had continued to be in possession till he  was illegally   dispossessed  in  1959  and   consequently   his application was within time.  On these findings the  Special Deputy Collector allowed both the appeals, and directed that the  possession of the suit land be restored to the  tenant. He also set aside the order of the Circle Officer  regarding the mutation entry. Against  the  Deputy  Collector’s  decision,  the   landlord preferred  two revision applications before the  Maharashtra Revenue  Tribunal.   The  Tribunal  dismissed  the  revision applications  and  affirmed  the  findings  of  the   Deputy Collector.   The landlords and their  transferees  thereupon moved  the High Court of Bombay by two writ petitions  under Article 227 of the Constitution for impugning the revisional orders of the Tribunal.  The High Court, as already  stated, dismissed the petitions.  Hence these appeals. The  common  question that falls to be determined  in  these appeals  is whether in the circumstances of this  case,  the alleged surrender by the tenant was valid? The  Deputy  Collector and the  Tribunal  have  concurrently answered  this  question in the negative  on  the  threefold ground  :  (i)  That  the so-called  surrender  was  a  sham transaction because the tenant continued thereafter to be in possession  and  paid rent to the landlord upto  1959;  (ii) That  Circle  Officers  were not empowered  to,  dispose  of tenancy  cases  and  as such  Shri  Bhokare’s  order,  dated September 18.  1953, was without jurisdiction and (iii) That the surrender had not    been verified as required by law. The  High Court upheld the finding on ground (i),  the  same being  a finding of fact not shown to be erroneous.  It  did not  think  it  necessary  to go  into  the  second  ground. Regarding  the  third  ground,  it  held  that  the  alleged surrender was a nullity as there was no compliance with  the mandatory requirements of s.5(3) of the Bombay Tenancy  Act, 1953  read with Rule 2-A in regard to the verification of  a surrender.               Section  5(3)(b) of the Act, at  the  material               time, was as follows               "A  tenant  may terminate the tenancy  at  any               time by surrendering his interest as a  tenant               in  favour of landlord. be Provided that  such               surrender  shall be in writing and shall  ’Lie

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

             verified  before the Mamlatdar in  the  manner               prescribed."               The  manner  of  such  verification  has  been               prescribed by Rule 2-A, in these terms :               "The Mamlatdar when verifying a surrender of a               tenancy by a tenant in favour of the  landlord               under clause (b) of Subsection (3) of  section               5,  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               document of surrender."                             843 It will be seen from a combined reading of these  provisions that a surrender of tenancy by a tenant in order to be valid and  effective must fulfil these requirements : (1) It  must be in writing. (2) It must be verified before the Mamlatdar. (3)  While  making  such  verification  the  Mamlatdar  must satisfy  himself in regard to two things, namely,  (a)  that the  tenant understands the nature and consequences of  the, surrender, and (b) that it is voluntary. (4).  The Mamlatdar must  endorse his finding as to such satisfaction  upon  the document of surrender. Mr. Desai, learned Counsel for the appellants contends  that the, provisions of Rule 2-A are directory and not mandatory; that  in  any case there has been a  substantial  compliance with the requirements of the relevant provisions of the  Act and  the Rule.  It is submitted that the deed  of  surrender executed  by  the  tenant  was  presented  along.  with  the application  of  the landlord, to the  Mamlatdar;  that  the Circle  Officer exercising the powers of Aval  Karkun,  then made  an enquiry and recorded the statements of  the  tenant and the landlord to ascertain whether the surrender had been intelligently  and voluntarily made by the tenant, and  that it was only after verifying the requisite tacts, the Officer made  the  order  directing delivery of  possession  to  the landlord  and deletion of the tenant’s name from the  record of rights.  It is argued that the mere fact that the  Circle Officer’s order or endorsement was strictly not in the  form prescribed,  would  not invalidate the surrender.   In  this connection,  the learned Counsel drew our attention to  this sentence in the judgment of the Tribunal : "But there is  no doubt  that the above formalities were gone  through  before the Circle Officer". Thus,  the  first  point to be considered  is,  whether  the requirements,   of   these  provisions  are   mandatory   or directory.   "No universal rule", said Lord Campell"(1)  can be  laid  down as to whether mandatory enactments  shall  be considered  directory  only or obligatory  with  an  implied nullification  for disobedience.  It is the duty  of  Courts of’  justice  to  try to get at the real  intention  of  the legislature by carefully attending to the whole scope." Such intention of the legislature is therefore to be  ascertained upon a review of the language, subject matter and importance of the provision in relation’ to the general object intended to be secured, the mischief, if any, to be prevented and the remedy to be promoted by the Act, Prior to the enactment of the Bombay Tenancy Act, 1939,  the laws governing the, relations between landlords and  tenants in  the  State did not ensure equal status  of  contract  or agreement to the contracting parties inasmuch as the tenants were  in  a  much inferior position.   The  tenants  had  no security  of tenure. nor any protection against eviction  or rack-renting.   Bombay Act 29 of 1939 was the first  measure

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

enacted  to remedy these evils and to improve the  condition of tenants of agricultural lands in the Province. (1)  Liver-pool Borough Bank v. Tunneer (1861) 30 L. J.  Ch. 37 9at p. 380; Craies on Statute Law, 7th Edn., p. 262. 844 The  Bombay  Act  67 of 1948 registered an  advance  in  the matter  of ameliorating the lot of ryots.  It marked  a  big step  taken  in  the  post-Independence  era  by  the  State legislature towards implementation of the policy of agrarian reforms.   Chapter  11 of the Act deals  with  tenancies  in general.   Sections 5 and 15 are in this  Chapter.   Chapter III  makes  provision for special rights and  privileges  of tenants  and  allied  matters.   The  provisions  in   these Chapters confer on protected tenants’ the right to  purchase their  holdings from their landlords, to prevent  uneconomic cultivation   and   to   create   and   encourage    peasant proprietorship. Provision  for  ’surrender’ of tenancy first appeared  in  a bald form. without any safeguards, in the Proviso to Section 5(2) of the Act of 1948.  That Proviso ran thus :               "Provided  that any tenancy may be  terminated               by  a tenant before the expiry of a period  of               ten  years by surrendering his interest  as  a               tenant in favour of landlord." In  its  unguarded form, the provision was  inadequate,  and vulnerable.  It was susceptible to abuse.  Under its  cloak, scheming landlords could squeeze out tenants, or induce them by  questionable means to leave the protective  umbrella  of the Act.  The Bombay ,(Amendment) Act 33 of 1952, which came into  force on 12-1-1953, recast this provision  and  hedged round   the   surrender  with  effective   safeguards.    It substituted sub-section (3)(b)-as reproduced by us  ,earlier in this judgment-for the old Proviso in Section 5. The language of s.5(3)(b) and Rule 2-A is absolute, explicit and  peremptory.   The words "Provided that" read  with  the words  "-shall be", repeatedly used in s.5(3)(b),  make  the termination of tenancy by surrender entirely subject to  the imperative  conditions  laid  down  in  the  Proviso.   This Proviso  throws  a  benevolent  ring  of  protection  around tenants.   It is designed to protect a tenant on two  fronts against two types of dangers-one against possible  coercion, undue  influence and trickery proceeding from the  landlord, and   the   other  against  the  tenant’s   own   ignorance, improvidence  and  attitude  of  helpless   self-resignation sterming  from  his weaker position in  the  tenant-landlord relationship. Thus,  the imperative language, the beneficient purpose  and importance    of    these   provisions    for    efficacious implementation  of  the  general  scheme  of  the  Act   all unerringly lead to the conclusion that they were intended to be mandatory.  Neglect of any of these statutory  requisites would be fatal.  Disobedience of even one of these  mandates would render the surrender invalid and ineffectual, Having  seen that the requirements of s.5(3)(b) and Rule  2A are  obligatory,  and  not  directory,  it  remains  to   be considered whether these imperatives have been substantially complied with in the manner prescribed, and if not, what  is the consequence of non-compliance ? The  question of inherent jurisdiction apart, all  that  the Circle  Officer did in this case, was that he  recorded  the statements of the 84 5 tenant  and  landlord  and  made  the  order-which  we  have reproduced  in full earlier in this judgment.   Although  in this  order he referred to the tenant’s statement  "that  he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

does not want to cultivate the same any longer and so he  is surrendering  the possession willingly along with crops  and also  the right as pro. tenant", he did not say a word  that he  was satisfied that the tenant had voluntarily  made  the surrender  after understanding its nature and  consequences, much  less did he endorse his satisfaction on  the  tenant’s deed of surrender as required by Rule 2-A.  Verification  of the surrender implies that the authority was satisfied as to the   statutory   requisites  after   due   enquiry.    Such satisfaction  of the authority was the essence of the  whole thing.  In other words, this requirement as to the recording of   its  satisfaction  by  the  authority  in  the   manner prescribed by the Rule, was the substance of the matter  and not  an  empty formality.  In the absence of  the  requisite endorsement,  therefore,  it cannot be said that  there  has been  even  a  substantial  compliance  with  the  statutory requirements. Mr. Desai’s contention that the Tribunal had found that  the Circle  Officer  had  complied  with  all  the   formalities prescribed  by  law,  does not appear to  be  correct.   The sentence  from which it is sought to be spelled  out  should not be torn from its context.  Earlier in its judgment,  the Tribunal  had  clearly said in concurrence with  the  Deputy Collector,  that  the  surrender had not  been  verified  as required by law. Next  point to be considered is, what is the consequence  of noncompliance with this mandatory procedure ? A century ago, in Taylor v. Taylor(1), Jassel M. R.  adopted the  rule that where a power is given to do a certain  thing in a certain way, the thing must be done in that way or  not at all and that other methods of performance are necessarily forbidden.   This rule has stood the test of time.   It  was applied  by the Privy Council, in Nazir Ahmed v.  Emperor(2) and later by this Court in several cases(3), to a Magistrate making  a  record  under  ss. 164 and 364  of  the  Code  of Criminal  Procedure,  1898.   This  rule  squarely   applies "where, indeed, the whole aim and object of the  legislature would be plainly defeated if the command to do the thing  in a particular manner did not imply a prohibition to do it  in any other.(4)" The rule will be attracted with full force in the  present case because non-verification of the  surrender in the requisite manner would frustrate the very purpose  of this  provision.  Intention of the legislature  to  prohibit the verification of the surrender in a manner other than the one prescribed, is implied in these provisions.  Failure  to comply  with  these  mandatory  provisions,  therefore,  had vitiated  the  surrender  and rendered it  non-est  for  the purpose of s. 5 (3) (b). For these reasons, we affirm the judgment of the High  Court and dismiss the appeals with one set of costs. P.B.R. (1)  [1876] Ch.  D. 426. (2)  L. R. 63 1. A. 372-AIR 1936 P. C. 253. Appeals dismissed. (3)  Shiv  Bahadur  Singh v. State of U.  P.  [19541  S.C.R. 1098; Deep Chandy.  State of Rajasthan [1962] S.C.R. 662. (4)  Maxwell’s  Interpretation of Statutes, 11th  Edn.,  pp, 362-363. 846