A.K. Kothandarama Rao vs Venkatachala Udayar

This civil revision petition is directed against the order passed in O.P. No. 294 of 1987 on the file of the Special Deputy Collector (Revenue

Court) Coimbatore. Short facy are : The revision Petitioner-had filed a petition under sub-section (a) of Section 3 of the Madras Cultivating

Tenants Protection Act against the respondent praying eviction on the ground of wilful default in payment of rent for the period from faslis 1383 to

1397. which is valued at Rs.70,125/-. That was resisted by the respondent on the ground that for the three faslis immediately preceding the

petition, the value of the arrears of rent payable was Rs. 9,450/-, that during this period Rs.4,725/- was paid and balance was only Rs. 4,725/-

and that he is prepared to pay whatever be the value of the arrears of rent payable by the respondent. After enquiry, the Special Deputy Collector

had found that the respondent is liable to pay Rs.9,200/- towards the value of arrears of lease paddy for three years, preceding the petition and

that during the pendency of the petition, the respondent had paid a total sum of Rs. 20,475/- and hence, there was no arrears of rent, as on the

date of passing of the order and dismissed the petition. Aggrieved by the said order, the petitioner in the Court below has come forward with this

revision.

Mr. Hajee P. K. Jamal Mohamed, learned counsel appearing for the petitioner, would submit that there was arrears of lease paddy for a period

of 15 years, that atleast the tenant should be directed to pay the arrears of rent after 1976. He would further submit that though the rent for the

period, prior to three years has become barred by time under the new Limitation Act, yet for the purpose of arriving at the arrears of rent, and for

the purpose of passing order of eviction, the entire period of arrears should be taken into account. He would finally submit that at any rate, the

proviso to Section 3(4)(b) of the Act is vitiated and ultra vires of the Constitution, since it hits Article 14 of the Constitution of India.

I have heard Mr. S. Ashok Kumar, learned counsel appearing for the respondent, on the above aspects.

I have carefully considered the submissions made by the learned counsel. In the impugned order, the Special Deputy Collector had found the

arrears for the three years preceding the petition and had arrived at the value of the same and had further found that during the pendency of the

petition, some amounts were paid by the respondent and that was more than the value of the arrears due. The Special Deputy Collector had also

found that the petitioner is entitled to claim only the value of the arrears for the three years, immediately preceding the petition. I shall strainghtway

refer to the proviso to Section 3(b) of the Act and it reads as follows :

See 3(b) xxx xxx xxx xxx

xxx xxx xxx xxx xxx

Provided that the Revenue Divisional Officer shall not direct the cultivating Tenant to deposit such arrears of rent, as have become time barred

under any law of limitation for the time being in force.

The above proviso was inserted by Tamil Nadu Act 21 of 1972. When this proviso is in statute, the Special Deputy Collector is perfectly in order

in stating that the landlord/ petitioner cannot claim the value of the arrears of rent for the period prior to three years, preceding the petition.

In Palaniswamy v. Kanctappa Gowndar AIR 1968 Madars 96, a Division Bench of this Court has held that if there are arrears of rent for the

period prior to three years of the filing of the petition, if found due, the Special Deputy Collector has to direct the tenant to deposit the arrears of

rent for the entire period. Learned Judges have observed as follows :

The civil revision petition raises an important question, whether a revenue Court has jurisdiction in an application for eviction by a landlord to

direct a cultivating tenant u/s 3(4)(b) of the Madras Cultivating Tenants Protection Act, 1955, to deposit the entire arrears of rent, irrespective of

the fact that part of it may be time-barred and cannot be recovered in a suit for arrears of rent in a civil court.

In paragraph 10, the learned Judges have held as follows :

In the result, we are of the opinion that the Revenue Court has jurisdiction to direct the cultivating tenant to pay the entire arrears of rent in order

to avoid being evicted from his holding. But, as already pointed out, cl.(b) of sub-section (4) of Section 3 of the Act enables the Revenue

Divisional Officer, in the exercise of his judicial discretion to allow a 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 inclusive of such

costs as he may direct, and if the cultivating tenant deposits the same as directed, he shall be deemed to have paid the rent under subsection (3)(b)

o! Section 3 of the Act. The exercise of judicial discretion is only as regards allowing the cultivating tenant reasonable time to make the deposit of

arrears of rent and not as regards the extent or quantum of arrears.

In Adyapadi Vasudeva Udpa and Others Vs. Krishna Udpa and Others, , it is pointed out that the ""tenant should not be given relief against

forfeiture until the full arrears arc paid, the full arrears being probably limited to 12 years but having regard to the provisions of the Act, arrears of

rent as subsequent to 31st March, 1954, alone could be directed to be deposited. It is true that a direction by the Revenue Court to a cultivating

tenant to pay arrears of rent for a number of years beyond the period of limitation would impose a heavy burden on him, But the answer to this

contention is that such a tenant who has defaulted to pay rent for a long period is not realty entitled to ask the Revenue Court to exercise its

discretion of not evicting him from his holding at the instance of the landlord. If in spite of it the Revenue Court thinks it fit to exercise its discretion

even in the case of such a tenant, it is but reasonable that he should be asked to pay the entire arrears of rent which he would have to pay to avoid

eviction on the ground of non-payment of rent.

Only subsequent to these rulings, Tamil Nadu Act 21 of 1972 was passed and the aforesaid proviso was inserted to Section 3(4)(b) of the Act,

In Palani Gounder v. S. P. Thangavel Gounder. 1988 1 Mad LW 499, K. M. Natarajan, J. has considered the effect of the proviso inserted to

Section 3(4)(b) of the Act and had held that the Revenue Court is not empowered to direct the tenant to deposit the time barred arrears of rent.

The Division Bench ruling of this Court supra was rendered prior to the passing of the Tamil Nadu Act 21 of 1972. The ruling of K. M. Natarajan,

J, was rendered, after the proviso was inserted in the Act and it holds the field.

Mr. Hajee P. K. Jamal Mohamed, would reply upon S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, . In it, the Apex Court

while interpreting a proviso to the main Section has held as follows at page 591:

While interpreting a proviso care must he taken that it is used to remove special cases from the general enactment and provide for them

separately.

In short, generally speaking a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within

it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of

it so as to amount to a substantive provision itself.

After considering various rulings of the Apext Court, four different purposes of a proviso has been set out by the Apex Court as follows :

We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To

sum up, a proviso may serve four different purposes :

(1) qualifying or excepting certain provisions from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to

make the enactment workable;

(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive

enactment itself; and

(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory

provision"".

In the instant case, to make it clear that for the purpose of Section 3(4)(b) of the Act, one should not take into account the arrears which fell due

beyond the period of three years, this proviso has been inserted. When in a civil suit, a landlord cannot realise the rent for a period beyond three

years, because of the operation of the provisions of the new Limitation Act, he cannot achieve that purpose in a petition for eviction. So, I am clear

that this proviso cannot be construed as offending Article 14 of the Constitution of India. Learned counsel would submit that there is discrimination

between tenants who are in arrears for long period and those in arrears for short period. No such discrimination can be read into that proviso. In

fact, the proviso would being it, in tune with a civil claim for arrears of rent inasmuch as a period of three years is prescribed for a civil claim and

this proviso limits the period of arrears of rent to three years. Looking at from any angle, I do not find any unfair discrimination in the proviso.

Learned counsel would rely upon Vasudeva Udpa v. Krishan Udpa, AIR 1921 Madras 418, in which Section 114 of the Transfer of Property Act

came up for consideration. It was held that relief against forfeitue can be granted only on the tenant paying the full arrears although as to a portion

therefore, if the landlord brought a suit it might be barred by limitation. The provisions of the Cultivating Tenant Protection Act and the provisions

of Transfer of Property Act operate in totally different and distinct fields. So, this ruling cannot be applied to this case.

Finally, Mr. Hajee P. K. Jamal Mohamed, would submit that the Special Deputy Collector has not considered the impact of Act 26 of 1983

whereunder petition for eviction on the ground of arrears of rent Was stayed during the period from 1-7-1982 to 15-1-1984, To consider the

submissions, certain dates need be stated. From the impugned order, it is seen that petition it was taken on file on 20-6-1987. Act 26 of 1983

came into force on 1-7-1982 and remained in force upto 15-1-1984, As per Section 3(1) of Act 26 of 1983, no application under the Tenants

Protection Act shall be made by or at the instance of the landlord for eviction of a cultivating tenant, on the ground that the cultivating tenant is in

arrears with respect to the rent payable to the landlord. In explanation to Section 3 of the Act, it is stated that for the purpose of this Section, rent

means rent accrued due for fasli year ending with 30th June, 1983, for any previous fasli year. So, during the period from 1-7-1982 to 15-1-1984,

eviction on the ground that there was arrears of rent for [he period prior to 30-6-1983 cannot be filed. This petition was taken on file as late as

20-6-1987 which is more than three years after the expiry of Act 26 of 1983. So, Act 26 of 1983 does not have any impact to the facts of this

case. Hence, I am unable to accept either this submission made by Mr. Hajee P. K. Jamal Mohamed.

In the result, the civil revision petition fails and shall stand dismissed. No costs.

Revision dismissed.