D. S. Chellammal Anni Vs. Nasanan
Samban [1964] INSC 76 (13 March 1964)
13/03/1964 WANCHOO, K.N.
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
SHAH, J.C.
AYYANGAR, N. RAJAGOPALA SIKRI, S.M.
CITATION: 1965 AIR 498 1964 SCR (7) 197
ACT:
Madras Cultivating Tenants Protection Act
(XXV of 1955), s. 3 and Madras Cultivating Tenants (Payment of Fair Rent) Act
(XXIV of 1950), s. 7-Scope of.
Practice-High Court-Revisional
jurisdiction-Interference by Supreme Court under Art. 136 of Constitution.
HEADNOTE:
The respondent is a cultivating tenant of the
appellant.
After harvesting he gathered the crops and
brought the grain to the threshing floor. He measured the crops and offered 40
per cent of it to the Landlord as rent as provided by the law but the landlord
wanted 60 per cent as his share. On the failure of the landlord or his agent to
take his legally due share after repeated requests and after information and
complaint to the police and revenue authorities the respondent removed and sold
the crops when he found that the crops would be spoiled by rain. Thereafter he
sent by money order to the landlord the market value of the 40 per cent of the
crops. The landlord refused to receive the amount and he filed a petition under
s. 3(4)(a) of the Madras Cultivating Tenants Protection Act, 1955 for the
ejectment of the respondent before the Revenue Divisional Officer.
The Revenue Divisional Officer held that
though the respondent was right in insisting on determining only 40 per cent of
the produce he was not justified in removing the crops. He held that he should
have deposited the rent in court or paid it to the landlord as provided by law.
Since he had not done these he held that he was not entitled to invoke the
discretionary power of the Revenue Divisional Officer to get an extension of
time for the deposit of rent and the officer therefore ordered the ejection of
the respondent.
A revision petition filed by the respondent
before the High Court was allowed and the order of ejectment was set aside.
The present appeal was filed on special leave
granted by this Court.
The appellant contends that since the
respondent has transgressed s. 7 of the Madras Cultivating Tenants (Payment of
Fair Rent) Act, 1956 by removing the produce from the threshing floor he cannot
claim the protection of that Act.
Secondly it was submitted that since the
respondent did not pay the rent as, contemplated by s. 3(3) of the Protection
Act he was not entitled to the protection of' the Act. It was further contended
that the High Court was not justified in interfering with the exercise of
discretion by the Revenue Divisional Officer.
Held: (i) S. 7 can be transgressed in two
ways viz., (1) when the tenant does not bring the crop to the threshing floor
or (2) having brought it to the threshing floor he removes any portion of it at
such time or in such manner' as to prevent the division thereof at the proper
time. In the present case it is admitted that the respondent brought the crop
to the threshing floor. From the proved facts of this case that the respondent
198 was always prepared for the division of the crops, and that it was the
insistence of the appellant for 60 per cent of the crops and his refusal to
accept his due share that prevented division and that, the crops were actually
measured by Revenue Inspector and it was to prevent deterioration of the crops
that the respondent removed it, it is clear that the respondent has not removed
the crops to prevent division. Therefore it cannot be said that there was a
transgression of s. 7 on the part of the respondent.
(ii) Since the respondent did not pay the
rent within the time and in the way contemplated by s. 3(3) of the Protection
Act the case is covered by s. 3(2) of the Act.
That gave the appellant a cause of action to
apply for the ejectment of the respondent under s. 3(4) of the Protection Act.
But even though the appellant was entitled to apply, the Revenue Divisional
Officer was not bound to evict the tenant for cl. (b) of s. 3(4) gives him a
discretion to give time to the tenant to pay the arrears taking into
consideration the various circumstances of the case. The Revenue Divisional
Officer refused to exercise the discretion in favour of the respondent on the
ground that he had not deposited the rent under s. 3(3). The discretion under cl.
(b) of s. 3(4) comes into play only when the tenant has not deposited the rent
under s. 3(3) and therefore the Revenue Divisional Officer was wrong in
refusing to exercise his discretion.
(iii) The Revenue Divisional Officer having
been patently wrong in his view of the law if the High Court interfered in the
wrong exercise of his discretionary power, this Court in its jurisdiction under
Art. 136 will not interfere with the order of the High Court which is clearly
in the interest of justice. Secondly the Revenue Divisional Officer had failed
to exercise his jurisdiction and the High Court would be justified in
interfering with his order even under s. 115 of the Code of Civil Procedure.
CIVIL APPELLATE JURISDICTION-Civil Appeal No.
356 of 1963.
Appeal by special leave from the judgment and
order dated October 1960 of the Madras High Court in C.R.P. No. 966 of 1960.
M. C. Setalvad and R. Ganapathy Iyer, for the
appellant.
T. S. Venkataraman, for the respondent.
March 13, 1964. The judgment of the Court was
delivered byWANCHOO, J.-This is an appeal by special leave from the judgment of
the Madras High Court. The appellant is a landlord in village Idaikkal, and the
respondent is her tenant. The land in dispute was let by the appellant to the
respondent and the rent was fixed partly in kind and partly in cash, the
tenancy having been created sometimes before the Madras Cultivating Tenants
(Payment of Fair Rent) Act, No. XXIV of 1956 (hereinafter referred to as the
Fair Rent Act) came into force. The agreement as to the payment of rent in kind
was that the appellant would get 60 per cent of the gross produce, the
remainder going to the respondent.
199 The dispute out of which this appeal has
arisen arose in 1959 when the crop for that year was reaped. The respondent
harvested the crop and brought it to the threshing floor of the appellant for
division and claimed that the appellant was only entitled to 40 per cent of the
crop as provided in the Fair Rent Act. The appellant's agent however demanded
60 per cent as provided in the agreement of tenancy. The dispute went on about
for ten days while the harvested crop was lying in the threshing floor.
Consequently, the respondent made an application to the Circle Inspector of
Police complaining that the appellant was delaying the division of the produce
and preventing the removal of the respondent's share, and that there was
likelihood of a breach of the peace. Thereupon the police made inquiry into the
matter and reported to the Tehsildar that the harvested crop was lying in the
threshing floor and the agent of the appellant was not prepared to divide the
produce in accordance with the provisions of law and was insisting on the
division being made according to the agreement. It was also reported that the
crop was deteriorating and the seeds had begun to germinate as the crop was
exposed to rain. Thereupon the Tehsildar directed the Revenue Inspector to look
into the matter and measure the quantity of the produce and note the gross
yield and report. The Revenue Inspector thereupon visited the spot on September
27, 1959 after issuing notice to the appellant's agent to be present at the
spot for the purpose of measuring the quantity and determining the yield.
The appellant's agent was however absent and
the Revenue Inspector made measurements in the presence of the respondent and
some prominent persons of the village in spite of the absence of the
appellant's agent. He then sent a report to the Tehsildar giving the result of
his measurements. As however, the appellant's agent was not present, the crop
could not be divided and the Revenue Inspector gave instruction to the
respondent that the crop should not be removed.
It appears however that the respondent
removed the crop soon after the Revenue Inspector left. Thereafter the
respondent sent a money order to the appellant for the amount representing the
value of the appellant's share, namely, 40 per cent. It appears that soon after
the appellant filed a criminal complaint of theft against the respondent and
that was dismissed. Then followed the present petition under s.
3 (4)(a) of the Madras Cultivating Tenants
Protection Act, No. XXV of 1955, (hereinafter referred to as the Protection
Act) for the ejectment of the respondent before the Revenue Divisional Officer.
The Revenue Divisional Officer held that
though the respondent was justified in insisting that the appellant should take
only 40 per cent of the produce as provided by law he 200 was not justified in
removing the crop and that he should have proceeded to enforce his rights in
the manner provided by law. As however the respondent had not chosen to proceed
in that manner, the Revenue Divisional Officer ordered his ejectment refusing
to exercise the discretion which lay in him to give time to the respondent to
deposit the arrears of rent in court. The respondent then went in revision to
the High Court. The High Court held that in the circumstances of the case, the
Revenue Divisional Officer should have exercised his discretion in favour of
the respondent. The High Court therefore set aside the order of ejectment in
view of the fact that the rent had been deposited in the High Court. Thereupon
the appellant applied for and obtained special leave to appeal from this Court,
and that is how the matter has come up before us.
In the special leave petition the appellant
raised the contention that the Fair Rent Act and the Protection Act were
unconstitutional as they placed unreasonable restrictions on the appellant's
fundamental rights to hold her property. But in the arguments before us,
learned counsel for the appellant has abandoned the attack on the constitutionality
of the two Acts and has only contended that the High Court had no jurisdiction
under s. 6-B of the Protection Act to interfere with the order of the Revenue
Divisional Officer.
Before we consider the contention raised on
behalf of the appellant we may briefly refer to the provisions of the two Acts,
which bear on the question raised before us. The Protection Act was, as its
title shows, passed for protection from eviction of cultivating tenants. It is
not in dispute that the respondent was a cultivating tenant.
Section 3(1) of the Protection Act lays down
that "subject to the next succeeding sub-sections, no cultivating tenant
shall be evicted from his holding or any part thereof, during the continuance
of this Act, by or at the instance of his landlord, whether in execution of a
decree or order of a Court or otherwise". The following sub-sections then
lay down the conditions under which ejectment can be ordered.
Sub-section (2) of s. 3 inter alia lays down
that a tenant will not enjoy the protection of sub-s. (1), if he is in arrears
of rent and has not paid the arrears within the time specified therein.
Sub-section (3) of s. 3 provides that a cultivating tenant may deposit in court
the rent or, if the rent be payable in kind, its market value on the date of
the deposit, to the account of the landlord. A notice of deposit is given by
the Court (in which is included the Revenue Divisional Officer), and an enquiry
is then made whether the amount deposited is correct after hearing the landlord
and the tenant. If there is any deficiency, the tenant is ordered to make good
the deficiency-, and if he fails to pay the sum due, the landlord is entitled to
ask the court 201 for eviction in the manner as provided by sub-s. (4).
Section 3(4)(a) lays down the procedure for
evicting a tenant. Under this clause a landlord has to apply to the Revenue
Divisional Officer and on receipt of such application, the Revenue Divisional
Officer, after giving reasonable opportunity both to the landlord and the
tenant to represent their case, holds a summary enquiry into the matter and
decides whether eviction should be ordered or not. Clause (b) of sub-s. (4) of
s. 3 further gives discretion to the Revenue Divisional Officer to allow the
cultivating tenant such time as he considers just and reasonable having regard
to the relative circumstances of the landlord and the cultivating tenant for
depositing the arrears of rent payable under the Act, including such costs as
he may direct. It is further provided that if the cultivating tenant deposits
the sum as directed, he shall be deemed to have paid the rent. If however the
cultivating tenant fails to deposit the sum as directed, the Revenue Divisional
Officer shall pass an order for eviction.
Then we turn to the provisions of the Fair
Rent Act, which are material for present purposes. We have already pointed out
that the fair rent in the case of wet land with which we are concerned in the
present appeal is 40 per cent ,of the normal gross produce or its value in
money: (see s. 4 (1)).
Then comes s. 7, which provides that
"where the produce to be shared is grain the sharing shall be done at the
threshing floor on which the threshing took place; and no portion of the
produce shall be removed there from at such time or in such manner as to
prevent the due division thereof at the proper time." A combined reading
of these provisions of the two Acts shows that in the case of a tenant whose
rent is payable in kind, such tenant has to take the crop to the threshing
floor for division and such division has to be made at the threshing floor and
no portion of the produce can be removed there from so as to prevent the due
division thereof. But it is open to a tenant under s. 3 (3) of the Protection
Act to deposit in court to the account of the landlord where the rent is
payable in kind, its market value on the date of deposit;
and this obviously postulates that though the
tenant has taken the produce to the threshing floor, the landlord has not
co-operated in its division. Clearly if the landlord does not co-operate in the
division of the crop, the tenant cannot allow it to remain on the threshing
floor to deteriorate and that seems to be the reason why under s.
3(3) of the Protection Act he is allowed to
deposit the market value of the rent payable in kind in court, and it is then
for the court to see whether the rent deposited is correct or not.
202 The first question that arises therefore
is whether the respondent has acted in any manner prohibited by law; and the
main contention of the appellant is that the respondent has transgressed the
provisions of s. 7 of the Fair Rent Act and so cannot take advantage of the
Protection Act. It is further contended that the respondent has also
transgressed s. 3(2) of the Protection Act inasmuch as he did not deposit the
arrears of rent within the time allowed there under and was therefore liable to
eviction under s. 3(4) of the Protection Act. Section 7 of the Fair Rent Act
lays down that the sharing of the crop shall be done at the threshing floor on
which the threshing takes place and no portion of the produce shall be removed there
from at such time or in such manner so as to prevent due division thereof. It
is clear that s. 7 can be transgressed in one of two ways;
viz., (1) when the tenant does not bring the
crop to the threshing floor at all, or (2) having brought it to the threshing
floor he removes any portion of it at such time or in such manner as to prevent
the due division thereof at the proper time. In the present case it is not in
dispute that the respondent brought the crop to the threshing floor with the
intention that it may be divided between him and the appellant and it is also
not in dispute that the tenant was entitled to have the crop divided according
to the Fair Rent Act and had therefore to give only 40 per cent to the
appellant as provided there under. It was the appellant who was insisting all
along through her agent that she should get 60 per cent as provided in the
agreement of tenancy.
What happened thereafter has been narrated by
us above. The respondent approached the police, and the report of the Police
Inspector shows that he went to the spot twice; on the first day the appellant's
agent told the Police Inspector that he would settle the matter after
consulting the appellant and the agent was asked to come back next day with the
appellant's instructions. When the Police Inspector came the next day, no
settlement could be arrived at. Later when the Revenue Inspector was sent by
the Tehsildar, the agent of the appellant did not appear in spite of notice,
and' the Revenue Inspector took measurements of the crop and made a report
thereof to the Tehsildar. It was after the crop had been measured by the
Revenue Inspector that it was removed by the respondent. In these circumstances
we are of opinion that it cannot be said that the crop was removed from the
threshing floor in order to prevent due division thereof at the proper time; the
respondent was always prepared for the division of the crop as provided by law,
and the removal by him cannot in the circumstances be said to be for the
purpose of preventing due division of the crop particularly when the
measurements had also taken place. Removal of crop by the tenant can fall
within the meaning.
203 of the section only if it is done for the
purpose therein specified; and it is plain that the removal in the present case
was clearly not for that purpose. We are therefore of opinion that on the facts
of this case it cannot be said that there was any transgression of s. 7 of the
Fair Rent Act.
It is further urged on behalf of the
appellant that even though the respondent might have been justified in removing
60 per cent of the crop which was his share, his removal of the appellant's
share was a transgression of s. 7 of the Act. We cannot accept this. Section 7
forbids removal of any portion of the crop. There is no question therefore of
the share of the appellant or the respondent, either the removal as a whole
will transgress s. 7 or it will not; and that will depend upon the fact whether
the removal was in order to prevent ,due division of the crop at the proper
time. In the present case we have already indicated that the removal was not to
prevent due division. The respondent was always prepared for due division and
it was the appellant's agent who did not agree to division according to law. In
these circumstances, this is not a case of removal of the crop (particularly
after it had been measured by the Revenue Inspector) with a view to prevent its
due division.
There was therefore no transgression of s. 7
of the Fair Rent Act, even if the appellant's share was removed.
Then it is urged that even if there was no
transgression of s. 7 of the Fair Rent Act, the respondent was not entitled to
the protection of s. 3 of the Protection Act, as he did not pay rent within the
time specified therein and had taken no steps under s. 3(3) of the Act. There
is no doubt that strictly speaking the case is covered by s. 3(2) of the
Protection Act inasmuch as the rent was not paid within the time allowed
therein and was not even deposited in court under s. 3(3) of the Protection
Act. What the respondent did in the present case was to send a money order to the
appellant instead of depositing the money in court under s. 3(3) as he should
have done. Even though the appellant was not agreeing to the division of the
crop, the respondent did not act under s. 3(3) as he should have and instead
sent a money order. That gave the appellant a cause of action to make an
application under s. 3(4) of the Protection Act.
But even though the appellant was entitled to
make application under s. 3(4) of the Protection Act, the Revenue Divisional
Officer was not bound to evict the tenant for el.
(b) of s. 3(4) gives him a discretion to give
time to the tenant to pay the arrears having regard to the relative
circumstances of the landlord and the cultivating tenant.
This clearly means that the Revenue
Divisional Officer has to take into account the circumstances of each case and
then exercise his discretion whether be should give time to the tenant or not.
In the present case 204 the Revenue Divisional Officer did not consider that
question as he took the view that he should not exercise the discretion in
favour of the respondent because he had not acted as he should have acted and
deposited the amount under s. 3(3) in court. This view of the Revenue
Divisional Officer is in our opinion patently incorrect.
Now if the respondent had acted as he should
have, acted and made a deposit under s. 3(3) of the Protection Act, the matter
would have been dealt there under. The court (which includes the Revenue
Divisional Officer) would then have to consider whether the, amount deposited
was correct and if it was deficient the court was bound to give time to the
tenant to make up the deficiency. It is only when the deficiency is not made
good within the time allowed that the landlord would have the right to make an
application under s. 3(4) for eviction. It is clear therefore that the
discretion allowed under cl. (b) of s. 3(4) only comes into play where the
tenant for some reason or the other has not made a deposit under s. 3(3). To
hold therefore,-as the Revenue Divisional Officer seems to have held-that the
discretion will not be exercised in favour of the tenant because he had failed
to make a deposit under s. 3(3) of the Act is a patent violation of the
provision in cl. (b) of s. 3(4) as to the exercise of discretion.
It is however urged that even if the Revenue
Divisional Officer had misunderstood cl. (b) of s. 3(4), the High Court could
not interfere with the exercise of the discretion by the Revenue Divisional
Officer under s. 6-B of the Protection Act, inasmuch as this provision gives revisional
jurisdiction to the High Court to the extent to which such jurisdiction is
conferred on it by s. 115 of the Code of Civil Procedure. There are two answers
to this contention.
The first is that the Revenue Divisional
Officer was patently wrong in his view of the law and therefore if the High
Court interfered with the wrong exercise of discretion, this Court in its
jurisdiction under Art. 136 will not interfere with the order of the High
Court, which is clearly in the interest of justice. Secondly by taking the view
that he cannot and should not exercise his discretion where a tenant has failed
to take action under s. 3(3) of the Protection Act, the Revenue Divisional
Officer has in our opinion failed to exercise jurisdiction vested in him under
the law, and the High Court would be justified in interfering with its order
even under s. 115 of the Code of Civil Procedure.
We are therefore of opinion that there is no
force in this appeal and it is hereby dismissed with costs.
Appeal dismissed.
Back
