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N. L. Abhyankar, J.—This is a landlord''s petition under Articles 226 and 227 of the Constitution. The dispute relates to field survey No. 24 area 23 acres and 5 gunthas, of village Nimboli in Buldana district.
The petitioner Yadao is a tenure-holder, being an occupant of surrey No. 24 of Nimboli. In addition he holds some other pieces which make total land in his ownership of the extent of 30 acres and 27 gunthas. The family holding for this area is 24 acres and the land equal to three family holdings will be 72 acres.
Survey No, 24 was being cultivated by respondent No. 3 Namdeo and respondent 4 Madhao. Both of them executed a surrender deed in respect of this field on 9th January 1958. That surrender deed was duly registered. The surrender was effected under the provisions of the Berar Regulation of Agricultural Leases Act then in force. On 3rd April 1958 the surrender was verified by the Naib-Tahsildar and found to be valid. Thereafter the petitioner Yadav obtained possession of the field as a result of the surrender.
The Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, otherwise known as the Bombay Act 99 of 1958, received the assent of the President on 25th December 1958. The Act after having received the assent of the President was first published in Gazette Extraordinary, called "The Bombay Gazette" on 26th December, 1958. The Act was published in the Ordinary Gazette in the issue of 1st January 1959 in Part IV-B and is to be found at page 1 and the following pages in that Gazette,
Under sub-section (3) of section 1 of the Act which will hereinafter be referred to as the new Tenancy Act it was to come into force on such date as the State Government may by notification in the Official Gazette appoint. By a Notification dated 29th December 1958, bearing No. JHR-1058-IX/21G218-L, the Government appointed 30th December 1958 to be the date on which the said Act was to come into force. This Notification was published in the Extraordinary Gazette of the Government on Monday 29th December 1958, and was followed by publication in the Ordinary Gazette of the Government in the issue of 8th January 1969 in Part IV-B and is to be found at page 52 of that part.
In the same Gazette and in the same Part at page 61 appears Notification No. TNC-5858/178447-N, by the Government of Bombay, dated 2nd January 1959, publishing draft of the Notification proposed to issue u/s 118 of the new Tenancy Act in respect of certain rules proposed to be made u/s 118, called "The Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Rules, 1959". Draft rule 12 is in respect of form and manner of intimating surrender to the Tahsildar u/s 21 (3) of the new Tenancy Act. This Notification publishing the draft rules intimated all those who were likely to be affected that the draft would be further taken into consideration on 25th January 1959, and any objections or suggestions to be received by the Secretary to the Government of Bombay in the Revenue Department, if received before the 25th January 1959, were to be considered according to this notification.
Thereafter, the final rules made by the Government u/s 118 of the new Tenancy Act, were published in the Gazette Extraordinary on 9th February 1959 and in the Ordinary Gazette on 19th February 1959, and are to be found at page 211 and the following pages in Part IV-B of the Government Gazette of that date. Rule 12 of these rules is as follows:-
Form and manner of intimating surrender to Tahsildar u/s 21(3)- (1) an intimation in respect of the surrender of tenancy by a tenant under sub-section (3) of section 21 shall be given to the Tahsildar in duplicate in Form IV by hand delivery or by registered post.
(2) On receipt of the intimation of surrender, the Tahsildar shall retain with him one copy of the intimation and return the duplicate copy to the landlord furnishing the intimation, after endorsing thereon his signature in token of having received the intimation and the date of receipt thereof.
The power to make rules is vested in the Government u/s 118 of the new Tenancy Act in respect of several matters enumerated in sub-section (2) of that section. Sub-sections (3) and (4) of section 118, which prescribe conditions precedent for making the rules effective, are as follows:-
(3) Rules made under this section shall be subject to the condition of previous publication in the Official Gazette.
(4) All rules made under this section shall be laid before each House of the State Legislature as soon as may be after they are made and shall be subject to such modification as the State Legislature may make during the session in which they are so laid or the occasion immediately following and publish in the Official Gazette.
As provided in sub-section (4) of section 118, all rules made under this section are required to be laid before such of the houses of the State Legislature as soon as may be after they are made, and are subject to such modifications as the State Legislature may make after they are laid, and they are required to be published in the Official Gazette. The authorized publication of the proceedings of the Bombay Legislative Assembly show that the Government Notification No. TNC. 5858/178447-K, dated 9th February 1959, framing the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Rules, 1959, was laid on the table of the Legislative Assembly of the Bombay State on 23rd February 1959 for the first time. The Note appended at the top of the tabular statement giving list of papers placed on the Assembly table, shows that the last date for notice of resolution modifying such of the rules which are liable to be modified in pursuance of the provisions of the relevant Acts, was 31st August 1959.
The above provisions of the law and the rules have become relevant for consideration in determining the point raised in this petition.
It is an admitted position that the petitioner did not give any intimation u/s 21 (3) of the new Tenancy Act in respect of the surrender by respondents Nos. 3 and 4 under a document dated 9-1-1958. Section 21 of the new Tenancy Act provides as follows: -
(1) Subject to the provisions of this section, where a tenancy is terminated by surrender u/s 20, the landlord shall be entitled to retain so much only of such land as will prevent the total area which he cultivates personally, whether as tenure-holder or tenant, or both from exceeding three family holdings.
(2) The Tahsildar shall hold an inquiry and declare whether the whole, or what part (if any) of the land surrendered the landlord is entitled to retain under sub-section (1), and notwithstanding anything in that sub-section, he may adjust by reduction or increase the area of any such part to be retained, but only so as to ensure that such part is not a fragment. The Tahsildar shall declare any land surrendered, which the landlord is not entitled to retain under the provisions aforesaid, to be surplus land.
(3) In respect of a surrender made by a tenant any time during the period commencing from the first day of August, 1967, and ending on the date of the commencement of this Act, the landlord who has obtained possession of the land as a result of such surrender shall within three months from the date of the commencement of this Act, intimate the fact of such surrender in the prescribed manner and in the prescribed form to the Tahsildar.
(4) On receipt of such intimation the Tahsildar shall notwithstanding anything contained in section 10 hold an inquiry and decide whether the surrender has been made validly in accordance with the law then applicable to such surrender and where the surrender is found to have been made validly, the Tahsildar shall decide the extent of land which the landlord shall be allowed to retain in his possession in accordance with the provisions of sub-section (2) as if the surrender had taken place after the commencement of this Act and shall declare any land surrendered, which the landlord is not entitled to retain under the provisions aforesaid, to be surplus land.
(5) Where the landlord fails to give intimation as required under sub-section (3) or where the surrender is found to be invalid as a result of the inquiry held under sub-section (4), the Tahsildar shall order the restoration of the possession of the land and the tenancy thereof to the tenant.
It appears, some Revenue Inspector made a report to the Tenancy Naib-Tahsildar, bringing to his notice that no intimation in respect of surrender of survey No. 24 was given by the landlord who had obtained possession of the land as a result of such surrender within three months of the commencement of the new Tenancy Act. The Naib-Tahsildar therefore opened suo motu proceedings, purporting to act u/s 21 of the New Tenancy Act, on 8-11-1961. Both the ex-tenants and the petitioner who is the landlord, were noticed in these proceedings, but only one of the tenants, namely, respondent No. 3 Namdeo, appeared before the Naib-Tahsildar. He took objection to the surrender and claimed that he was in possession of the field as a lessee after the death of his father Sadashio, up to 1960-61 and that he was forcibly dispossessed in the year 1960-61 by the petitioner Yadao. He further claimed that the surrender deed was executed by him in the year 1958 but he was not aware that his surrender was verified. The petitioner''s case was that both the tenants had voluntarily surrendered their tenancies by executing surrender deeds dated 9-1-1958, that the surrender was verified by the Naib-Tahsildar and that the officer decided that the surrender was proper and voluntary, in Revenue Case No. 12/59 (9)/57-58 of village Nimboli. The petitioner had also obtained a certificate to that effect and had also informed the patwari regarding the surrender of tenancies. The certificate given by the Naib-Tahsildar in the verification proceedings, was also filed and is to be found in Annexure 4 and is as follows:-
Surrender of right of the protected lessee in respect of the field 8, No. 24 of Village Nimboli in favour of the applicant Yadeo Bhiku of Kund Kh. by 1 Madhao Bhiku and 2. Namdeo Sadashiv of Kund Kh. is held to be made voluntarily vide order dated 3-4-1958 in above Revenue Case (Rev. Case No. 12/59 (9)/1057-58)." The Naib-Tahsildar held that both Namdeo and Madhao were tenants, that both had executed surrender deeds voluntarily, that the surrender was verified before the authorized Court and after due enquiry it was held that the surrender was voluntary, that there was no fresh contract of lease between the landlord and tenants that the tenancy would be continued in spite of the surrender, and that the landlord i. e. the petitioner was in possession from the date of the surrender and the case of Namdeo that he was forcibly dispossessed was not proved. On these findings and the further fact that the landlord did not hold more than three family holdings inclusive of survey No. 24, the Naib-Tahsildar held that the landlord was entitled to retain possession of the land as surrender was duly made.
Against this order, out of the two ex-tenants Namdeo went up in appeal. The appellate authority reversed the order of the Naib-Tahsildar. The view taken by the appellate authority was that the landlord could not alienate any part of the land without the order of the Tahsildar even if the tenant surrendered it and as the landlord failed to give due intimation of the surrender, the land must go back to the tenant whether the surrender was declared valid or not. The appellate authority therefore literally gave interpretation to the provisions of section 21 (5) of the new Tenancy Act and directed that both the tenants, namely, Namdeo as well as Madhao, from whom surrender deeds were obtained and possession taken, be restored possession of the land. It may be noticed that Madhao does not appear to have taken any part in these proceedings.
The petitioner challenged the order of the appellate authority before the Maharashtra Revenue Tribunal. The Tribunal rejected the revision, application more or less on the same reason which has found favour with the appellate authority.
The question that is posed for determination in this petition is whether a landlord who had obtained surrender of land from his tenant at any time between 1st August 1957 and 30th December 1958 when the new Tenancy Act came into force and had obtained possession of the land as a result of such surrender, suffers penalty under the first part of sub-section (5) of section 21 if the landlord fails to give intimation as required under sub-section (3) of section 21, It is not disputed now that the surrender by the tenant was duly verified and was found to be voluntarily made and that it is not invalid under sub-section (4) of section 21. The landlord, however, is compelled to restore possession because of his alleged failure to give intimation of surrender of tenancy which was duly verified.
The first two sub-sections of section 21 provide for the case of surrender of tenancy resulting in determination of tenancy u/s 20 of the new Tenancy Act. Section 20 enables a tenant to determine the tenancy at any time by surrender of his interest in favour of the landlord provided such surrender is in writing and is verified before the Tahsildar in the prescribed manner. These two sub-sections obviously relate to surrender of tenancy after the coming into force of the new Tenancy Act. It would also appear that the object of verification of surrenders, whether made before the new Tenancy Act came into force between the stated period or after it had come into force, is primarily to restrict the total area which can be allowed to be retained by a landlord either under personal cultivation or under the tenant, and ceiling is fixed for such land, which is not to exceed three family holdings. The obvious intention of the Legislature is that by obtaining surrender of lands the landlord should not be in a position to keep land in excess of three family holdings under his personal cultivation, whether the land is owned by him or is under a lease with such landlord.
It is obvious that surrenders being permissible under the Berar Regulation of Agricultural Leases Act could be obtained by landlords even during the pendency of legislation before the Legislature. The object of the new Tenancy Act being to limit the extent of land which could be under personal cultivation of a cultivator, whether as an owner or as a lessee, the surrenders after 1-8-1957 were required to be examined with a view to give effect to this policy of the law.
It is, however, pertinent to note that the intimation required to be given under sub-section (3) of section 21 of the new Tenancy Act was required to be given within a stated period of three months from the date of commencement of the Act. Thus, the intimation had to be given on or before 30th March 1959 because the new Tenancy Act commenced operation in this region on 30th December 1958. The law, however, further requires that the intimation has to be given "in the prescribed manner and prescribed form" to the Tahsildar. The word "prescribed" has been defined in section 2 (23) of the new Tenancy Act as meaning prescribed by rules made under this Act. Thus, the policy of the law is that not bare intimation of surrender but intimation which is required to be given according to the rules made under the Act has to be given.
Section 118 (2) (vi) of the Act empowers the State Government to make rules providing for the manner of verifying the surrender of a tenancy u/s 20. Though this sub-clause does not in terms empower the State Government to make rules u/s 21 (3), it only refers to section 20 i.e. a power to make rules as to the manner of verifying the surrender u/s 20. It could therefore be urged that there being no express power to make rules u/s 21 (3), the rules actually made are not covered by an express rule-making authority. It is, however, possible to uphold the validity of the exercise of power to make rules and the rules made u/s 21 (3) by reference to the general powers u/s 118 (1) of the new Tenancy Act.
But even though the exercise of this power is referable to section 118 (1) of the new Tenancy Act, the exercise of that power to make rules is made subject to certain conditions precedent given in sub-sections (3) and (4) of section 118. The first condition is that the rules made under this section shall be subject to the condition of previous publication in the Official Gazette, and the second condition is that all rules made under this section shall be laid before each house of the State Legislature as Boon as may be after they are made, and shall be subject to such modifications as the State Legislature may make during the session in which they are so laid or the session immediately following and publish in the Official Gazette. Hedged in by such conditions, rules made under statutory authority do not ipso facto come into force by mere publication of the draft Rules or even of the final rules because even final rules are themselves subject to modification by each house of the State Legislature.
Now, the time schedule fixed by section 21 (3) fixing the time limit within which intimation has to be sent on the pain and penalty of losing the property and having it restored to the ex-tenant, is fixed by the Legislature itself as a period of three months from the date of the coming into force of the Act, but the same sub-section further requires that the intimation has to be sent according to the prescribed manner and in the prescribed form. This prescribed manner of sending intimation and the form in which it had to be sent came to be published for the first time on 19th February 1959 i. e. nearly 50 days after the Act commenced functioning in this region. There is no means of knowing from the available information and neither counsel has been able to throw More light as to when the Legislature finally dealt with these rules. But the rules seem to have been laid before the Legislative Assembly of the then State of Bombay on 23rd February 1959, which was 54th day from the date of the commencement of the Act.
The result of this provision of section 21 (3) therefore is that whereas the statute requires intimation to be given within a period of three months from the date of commencement of the Act, the prescribed manner and the prescribed form in which the intimation has to be sent could not possibly be available even to the most diligent landlord for a period of 50 days after the commencement of the Act. In other words, a period of 50 days was thus lost to the landlord who was required to do something within three months from the commencement of the law, on the penalty of losing his land for the mere failure to give intimation.
What is contended before this Court is that whereas the Legislature has fixed a particular period in which intimation has to be given and has laid down the manner and form in which the intimation had to be given, it became impossible for the landlords to given intimation within the period allowed because the form and the manner were not prescribed as required by law for a period of 50 days after the commencement of the Act. As it was impossible to perform the obligation, if at all it was on the landlord, on account of nonexistence of the rules requiring the form and the manner of giving intimation; the penalty which is imposed for not doing the act of intimation within three months could not be inflicted on the landlords when it was impossible to conform to this provision for a period of 50 days for no fault of theirs. In other words, what is contended is that a penalty, which is liable to be imposed and against which there is no relief possible by way of extension of time or condonation of delay for non-performance under the Act, cannot be directed if by the failure to make rules within the time allowed the period for intimation is curtailed substantially. Looked at another way, a penalty which is liable to be imposed for not doing an act within a period of three months cannot be imposed if such an act could not be performed for 50 days out of those three months, for no fault of the petitioner. It is also urged that it would be no answer to the contention to say that the petitioner should avail of the rest of the time, namely, 40 days available to comply with the provisions of the law within a period of 40 days only. The penalty provided in section 21 (5) being in the nature of expropriation could not be imposed after it was impossible to comply with the provisions requiring giving of intimation within a period of three months because the landlord was deprived of part of the period of time during which he would comply with the provision of giving intimation within three months from the commencement of the Act.
In my judgment, there is considerable force in this contention urged on behalf of the petitioner and it must be upheld, and in view of the circumstances pointed out above it must be held that the law would excuse non-performance of an act which became impossible of performance on account of reasons beyond the control of the landlord. The maxim Lex non cogit ad impossibilia (the law does not compel impossibilities) would govern the circumstances of the case on point. Maxwell on Interpretation of Statutes, 10th Edition observed at p. 373 as follows:-
Enactments which impose duties on conditions are, when these are not conditions precedent to the exercise of a jurisdiction, subject to the maxim lex non cogit ad impoaaibiia out imuilia. They are understood as dispensing with the performance of what is prescribed when performance of it is idle or impossible. In such cases, the provision or condition is dispensed with when compliance is impossible in the nature of things. It would seem to be sometimes equally so where compliance was, though not impossible in this sense, yet impracticable without any default on the part of the person on whom the duty was thrown.
Broom, commenting on this maxim, states the law at pages 162 and 163 in his book, on Legal Maxims, as follows:-
''''This Maxim, or, as it is also expressed, impotentia excusat Legem, is intimately connected with that last considered, and must be understood in this qualified sense, that impotentia excuses when there is a necessary or invincible disability to perform the mandatory part of the Jaw, or to forbear the prohibitory. It is akin to the maxim of the Roman Law, nemotenetur ad impossibilia, which, derived from common sense and natural equity, has been adopted and applied by the law of England under various and dissimilar circumstances.
The law itself and the administration, of it, said Sir W. Scot, with reference to an alleged infraction of the Revenue Laws, must yield to that to which everything must bend to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling to impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases. "In the performance of that duty, it has three points to which its attention must be directed. In the first place, it must see that the nature of the necessity pleaded be such as the law itself would respect, for there may be a necessity which it would not. A necessity created by a man''s own act, with a fair previous knowledge of the consequences that would follow, and under circumstances which he had then a power of controlling, is of that nature. Secondly, that the party who was so placed used all practicable endeavours to surmount the difficulties which already formed that necessity, and which, on fair trial, he found insurmountable, I do not mean all the endeavours which the wit of man, as it exists in the acutest understanding, might suggest, but such as may reasonably be expected from a fair degree of discretion and an ordinary knowledge of business. Thirdly, that all this shall appear by distinct and unsuspected testimony, for the positive injunctions of the law, if proved to be violated, can give way to nothing but the clearest proof of the necessity that compelled the violation.
Crates on Statute Law, 5th Edition, at page 248, has observed dealing with this aspect as follows:-
Impossibility as excuse for non-compliance with absolute provisions. Under certain circumstances compliance with the provisions of statutes which prescribe bow something is to be done will be excused. Thus, in accordance with the maxim of law, Lex non cogit ad impossibilia if it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God or King''s enemies, these circumstances will be taken as a valid excuse.
Then it is concluded from Campbell v. Earl of Dalhousie (1888) L R 1 SC & D 259, 259, which went up to the House of Lords, in which the question arose whether the succeeding tenant in tail was liable to pay the sums of money to the representatives of Lord Breadalbane, the House of Lords held that he was liable, and that compliance with the provisions of the Act having been rendered impossible by the death of Lord Breadalbane, the omission was to be excused. The Lord Chancellor observed:
If by the act of God it becomes impossible that the claim can be signed, it appears to me that it would be construing the Act of Parliament in a way in which no clause of the kind has been construed, if we held that, where the act of God thus prevented a compliance with the words of a statute, the proprietor or his representatives should thereby be prevented from making a claim for improvements.
It would appear that the act of God would equally apply when circumstances make it impossible or at any rate impracticable to carry out mandatory provisions of law within the time specified by the law.
In this connection it is worthwhile to note a few precedents where the maxim seems to have been applied. Eager v. Furnivall (1881) 17 Ch D 115 was a case where a testator died in 1875, leaving devised by his will made in 1872 a leasehold property to his daughter. The daughter predeceased the testator, leaving only a child who was her heiress at law. The plaintiff who was the husband of the deceased daughter, claimed as a tenant for his life as the tenancy came by courtesy. It was held that the plaintiff was entitled to the leasehold property as his wife died before the death of the testator.
The case of Finney v. Godfrey (1869) 70 L R Equity Cases 356 is even more apposite. Under a direction in a statute, prior to taking a bill pro confesso against an absconding defendant an order for his appearance by a certain date had to be posted on the door of the parish church where the defendant made his usual abode, within 30 days of absconding. In the ease reported, the taking of the bill was conditional upon the abode of the defendant being the last abode. But it was held that the condition could be dispensed with in the case of extra-parochial residence. It was held that, as it was, the compliance with the law was conditional upon there being a parish church, there was no parish church, and the last abode of the defendant was not in the parish, and therefore the mode of posting an order on the door of the church could not be understood as a condition precedent.
The maxim was also considered in another case before the Queen''s Bench Division, which was confirmed by the Court of Appeal, reported in Hick v. Bodocasachi (1801) 2 Q B D 626. At page 638, Lindley J. observed as follows:-
In this state of the authorities it appears to me most in accordance with principle to act upon the maxim ''Lex non cogit ad imposgibitia''. We have to deal with implied obligations, and I am not aware of any case in which an obligation to pay damages is ever cast by implication upon a person for not doing that which is rendered impossible by causes beyond his control.
The same principle in a slightly different form seems to have been applied in recent case of Harding v. Price (1048) 1 KB 695. In that case the trailer attached to a lorry collided with and damaged a stationary car while passing it. It was found as a fact that the driver of the lorry because of the noise the trailer was making did not know of the accident. He therefore did Dot stop or report the accident to the police as required by section 22 of the Road Traffic Act, 1930. It was held that though the word "knowingly" did not appear in the section 22, whereas it appeared in section 6 of the repealed Motor Oar Act, 1903, the omission of the word in the re-enacted section merely relieved the prosecution from the harden of proving knowledge on the part of the defendant, and it did not follow that the driver might not set up and prove lack of knowledge as a defence. It was further held that if a statute contained an absolute prohibition against the doing of an act, as a general rule mens rea was not a constituent of the offence; but there was for this purpose a difference between a statutory provision prohibiting an act and one imposing a duty to do something on the happening of an event. The driver could not report something of which he had no knowledge and therefore he was not guilty of the offence.
Thus according to the maxim when doing of some positive act, doing of which is required to be done within the prescribed time and according to the manner indicated by the rules, is made impossible of performance, the penalty for non-performance cannot be reasonably attracted and the non-performance will be excused. Even in a proceeding for mandamus, a return which is shown to be legally impossible of performance is a good return. (See Tapping on Mandamus, page 359).
Though the provisions of section 21 (3) of the new Tenancy Act made it obligatory on a landlord who obtained a surrender to give due intimation, that section and the obligations imposed under it could not be said to have come into force immediately for want of necessary rules. The Legislature could have itself framed the rules along with the Act, indicating the manner and the form in (sic) the intimation has to be tendered. That having been left to the rules to be framed by the Government, the time which was available to a landlord to comply with the provisions of section 21 of the new Tenancy Act was necessarily curtailed. In other words, provisions of section 21 (3) could effectively come into force only when the rules prescribing the manner and the form in which the intimation was to be made, were available in the Official Gazette, and they were not so available, thus curtailing a substantial portion of the period during which the Legislature wanted intimation to be given. Could it therefore be said under these circumstances that penal consequences which would follow the non-giving of intimation for a period of three months would still be attracted if it was impossible to give intimation for the first 50 days of that period of three months? In my judgment, it would be making the law instead of interpreting the law in the manner in which it had been done by the Special Deputy Collector and the Maharashtra Revenue Tribunal which upheld the order penalising the landlord by dispossessing him for not having done something within the period prescribed by the Legislature when for a substantial portion of that period it was impossible for the petitioner-landlord to do anything in the matter. I therefore hold, differing from the authorities below, that it was not possible for the petitioner to comply with the provisions of section 21 (3) to do anything within a substantial part of period allowed by law, and no penal action could be taken when the petitioner was deprived of a substantial portion of that limit of time to comply with the provisions of the Act for no fault of his.
The learned counsel for the petitioner has invited my attention to the Full Bench decision of this Court reported in Bhima Balu v. Basangonda Mangonda Patil AIR 1964 Bom. 513 = 56 Bom. L R 520= I L R 1953 Bom. 1080 which was a case under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. Under the provisions of that Act a sale could not be effected without the Tribunal required to be appointed under the Act being approached to fix the price. There was an agreement of sale entered into, prior to the coming into force of the new Act, but the sale deed was executed after the commencement of the new Act, on 6th January 1949. The Tribunal which was required to be appointed was not constituted till 18th January 1949 and thus on the date the sale deed was executed no Tribunal was in existence which could be approached. It was clear that on the facts of the case the Tribunal which was to be appointed was constituted on 18th January 1949, and therefore the sale deed made on 6th January 1949, though after the coming into force of the Act, was not within the mischief of section 64. The facts in that ease were different from the facts in the instant case. But the principle that seems to have been acted upon is that if compliance with provisions of an Act was not possible for no fault of a citizen, then the penal consequences cannot follow for such noncompliance and failure to comply would be excused.
It is necessary to consider other contentions raised, namely, whether the provisions of sub-section (5) of section 21 would apply in all cases simply because intimation of surrender is not given though surrender has in fact been verified and found to be valid and the total land in possession of the landlord is not in excess of the maximum permissible for personal cultivation.
There is yet another aspect of the matter, and it is whether it could not be said in law that intimation was or could be deemed to have been given because the surrender was effected by a registered instrument. Under the Madhya Pradesh Land Revenue Code which was then in force, provision is made for giving intimation whenever a person acquires any right of interest in land by or u/s 103, which is liable to be entered in the Record-of-Rights. Such intimation is to be reported orally or in writing within three months from the date of acquisition of interest, to the patwari, but the person acquiring interest in the land is relieved of this obligation under the second proviso if the person acquires right by virtue of a registered document or under a decree of a Court. u/s 107 of the same Code, when a document purporting to create, assign or extinguish any title to or any charge on land used for agricultural purposes, or in respect of which a Record-of- Rights has been prepared, is registered under the Indian Registration Act, 1903, the registering officer shall send intimation to the patwari of the village in which the land is situate, in such form and at such times as may be prescribed by rules made under the Code. The argument thus is that it must be taken that there has been substantial compliance with the provisions of section 21 (3) because rights under the surrender were acquired as a result of the registered document and there is a presumption that the provisions of section 107 must have been complied with by the registering authority by giving intimation to the revenue authorities. Thus, if the purpose of sub-section (3) of section 21 of the new Tenancy Act which required intimation of the surrender has been served, it could not have been the intention of the Legislature to impose a duty on such a landlord who has obtained surrender under a registered instrument to give another intimation merely as a formality. It is not necessary to consider these aspects of this question because the view taken is that section 21 (3) having become impossible of compliance on account of the full time given by the Legislature not being made available to the parties, the penalty imposed u/s 21 (3) cannot be said to have been attracted.
It is also not clear whether a tenant who has not come forward to claim restoration of possession of land could still be inducted on land without his claiming restoration of possession which seems to have been brought about by the orders of the appellate authority and the Tribunal in this case so far as the interest of Madhao in the leasehold is concerned. In my judgment, such a result could not have been intended.
The result is that the petition is allowed. The orders of the Special Deputy Collector and the Maharashtra Revenue Tribunal are set aside and that of the Naib-Tahsildar restored. In the circumstances, there will be no order as to costs.