Patna High Court
Vishwanath Kedia vs The State Of Bihar And Ors. on 4 August, 1989
Equivalent citations: 1989(37)BLJR296
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This writ application is directed against the orders dated 14-8-1984 passed by respondent No. 2 as contained in Annexure-4 to the writ application, the order dated 14-10-1985 passed by respondent No. 3 as contained in Annexure-5 to the writ application and the order dated 6-5-1986 passed by respondent No. 4, as contained in Annexure-6 to the writ application. By reason of the aforementioned orders, the said authorities directed restoration of the land in plot Nos. 227, 229, 230, 294, 295 and 296 measuring an area of 1.85 acres in village Madhukam, P.S. Sukhdeonagar, district Ranchi.
2. The facts of the case lie in a very narrow compass. By reason of a registered deed of surrender, the predecessor-in-interest of the respondent Nos. 5 and 6 surrendered the lands in question in favour of the then landlord. The then landlord, thereafter, settled the said land with one Chandi Prasad Kedia who came in possession thereof in the year 1948.
3. According to the petitioner, the said settled lands were partitioned amongst the co-sharers of the aforementioned settlee, as a result whereof, the petitioner came in possession of the lands in question and his name was -also mutated in the office of the State of Bihar and thereafter, he had been paying rent to it.
4. According to the petitioner, he transferred a major portion of the said land in favour of the respondent Nos. 7 and 18, who also get their names mutated in the office of the State of Bihar.
5. In the year, 1982, the respondent Nos. 5 and 6 filed an application purported to be under Section 71-A 6f the Chotanagpur Tenancy Act wherein they challenged the aforementioned deed of surrender dated 2-11-1986 inter alia on the ground that the said deed of surrender was obtained by the then landlord by fraudulent means. The petitioner having been directed to file show cause in the said proceeding (sic)led his show cause. By reason of the impugned order, the respondent Nos. 2, 3 and 4, inter alia, held:
(a) That the surrender having been effected in November, 1946 i.e., not at the end of an agricultural year, the same was bad in law inasmuch as the provision of Section 72 of the Chotanagpur Tenancy Act was not complied with.
(b) All the recorded tenants did not join in executing the deed of surrender.
6. Mr. Tapan Sen, learned Counsel appearing on behalf of the petitioner submitted that in view of the fact that the predecessors-in-interest of the respondent Nos. 5 and 6 surrendered the properties in question in favour of the then landlord by reason of a registered instrument, the said respondents cannot challenge the legality of the deed of surrender on the ground that all recorded tenants did not join in the deed of surrender,
7. The learned Counsel also contended that in terras of Section 72 of the Chotanagpur Tenancy Act, it is not necessary to effect a surrender only at the end of an agricultural year According to the learned Counsel, a surrender effected during an agricultural year, is also valid and for this proposition, the learned Counsel has relied upon a decision in the case of Dudhu Mahta and Anr. v. State of Bihar and Ors. reported in 1988 PLJR 27 (HOG) and 1988 BLT 180.
8. Mrs. Jaya Roy, learned Counsel appearing, on behalf of respondent Nos. 5 and 6, on the other Hand, submitted that a surrender being a transfer within the meaning of Section 71-A of the. Chotanagpur Tenancy Act must conform to the provisions of Section 72 thereof and in a proceeding under Section 71-A of the Chotanagpur Tenancy Act, the Deputy Commissioner is endowed with a duty to see that surrender made by the raiyati is valid being in accordance with the provisions contained in Section 72 thereof.
9. Mrs. Roy further submitted that in the decision relied upon by Sri Sen, no reason has been assigned and as such the same should net be relied upon by his Court.
10. From a perusal of the impugned order as contained in Annexures 4, 5 and 6 to the writ application, it does not appear that the predecessors-in-interest of the respondent Nos. 5 and 6 and other raiyats who executed the aforementioned registered deed of surrender dated 2-11-1946 did not represent the entire body of the raiyats. It was not the case of the respondent Nos. 5 and 6 that the executors of the aforementioned deed of surrender were not authorised to execute the same or none of them was not the Karta and the Manager of the family and thus was not entitled to execute a deed of surrender on behalf of the joint family.
11. In any event, in view of the fact that the predecessor-in-interest of the respondent Nos. 5 and 6 have admittedly are parties to the aforementioned deed of surrender, in my opinion, the reasons assigned by the respondent Nos. 2, 3 and 4 for holding that the deed of surrender is invalid as all the recorded tenants did not join in execution thereof, does not appear to be correct.
12. So far as the second contention raised by Mr. Sen is concerned, it is evident that the surrender took place on 2-11-1946 i.e., during an agricultural year and in at the end thereof.
13. A surrender as contemplated under Section 72 of the Chotanagpur Tenancy Act is the privilege of a tenant. From a persual of the provision of Sub-section (1) read with Sub-section (5) of Section 72 of the said Act. it is evident that an enabling provision has been made therein so that a surrender can be effected at the end of an agricultural year so only for the purpose of protecting the interest of the landlord so that he may not be deprived of the rent payable to him during the said agricultural year. It is therefore, clear that the provisions for effecting a surrender at the end of agricultural year was not enancted for the benefit of the raiyat but for the benefit of the landlord. Evidently, therefore, a raiyat who has effected a surrender during an agricultural year cannot take benefit of the same for the purpose of contending that the surrender made by him is itself invalid on that ground inasmuch as by doing so he himself is benefited to the extent that he does not have to pay rent for the agricultural year in question, in which the said surrender is effected.
14. This appears to be clear in view of the provisions contained in Sub-section (5) of Section 72 of the Chotanagpur Tenancy Act, by reason whereof any arrangement can be arrived at by and between the landlord and the raiyat in respect of a surrender effected by a raiyat in favour of the landlord,
15. It is new a well-known principle of interpretation of statutes that the entire provision has to be read as a whole and upon reading Sub-section (1) and Sub-section (5) of Section 72, there cannot be any doubt, that the provision inserted in Sub-section (1) thereof to the effect that surrender may be made by a tenant at the end of the agricultural year is not a mandatory provision but merely an enabling one and in terms of Sub-section (5) of Section 72 thereof an arrangement to the contrary can be made by and between the landlord and tenant.
16. In this view of the matter, in my opinion, the aforementioned deed of surrender dated 2-11-1946 which was executed in the midst of agricultural year cannot be said to be illegal and invalid in law.
17. In view of the findings aforementioned the impugned order as contained in Annexures 4, 5 and 6 cannot be sustained.
18. In the result, this writ application is allowed and the impugned orders as contained in Annexures 4, 5 and 6 to the writ application are hereby quashed. Let a writ of certiorary be issued accordingly. However, in the facts and circumstances of this case, there will be no order as to costs.