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Judgment
Kailasam, J.—Arumugavelu Thayammal and Sundaravalli ponnu Thayammal are the land-ladies and the Petitioners in Civil Revision Petition No. 1584 of 1959. They filed Cultivating Tenants'' Protection Application No. 62 of 1958 before the Sub-Collector, Dindigul, for evicting the Respondent-tenant u/s 4-A of the Madras Cultivating Tenants'' Protection Act, 1955, as amended by Act XIV of 1956. On 7th July 1953, the tenant entered into an agreement of lease in respect of 11 acres and 63 cents with the mother of the present Petitioners for a term of three years on a rent of 191 kalams of Arisamba paddy and 120 bundles of hay. After the death of the mother of the Petitioners, the Petitioners as heirs became entitled to the land. They sold 2 acres out of 11 acres and 63 cents to one Sakkayasami Poodham Pullava Naicker on 4th June 1958. The purchaser is the Petitioner in Cultivating Tenants'' Protection Application No. 63 of 1958 and the Petitioner in Civil Revision Petition No. 1588 of 1959.
In both the petitions, the Petitioners prayed for permission to resume one-half of the extent of lands leased to the Respondent for personal cultivation. The Revenue Court permitted the Respondent u/s 4-A(3) of the Act to continue in possession of the entire extent leased on payment of rent at the rate which it was payable before 27th September 1955. Aggrieved by the order the two Petitioners have preferred these two revision petitions.
The question for consideration in these revision petitions is whether the landlord''s right to resume possession of an extent of land either as owner or as tenant or as both to make up an extent of five acres of land u/s 4-A(4) of the Act is subject to the right of the tenant u/s 4-A(3) to continue in possession on payment of rent at the rate payable before 27th September 1955.
Section 4-A runs as follows:
Notwithstanding anything contained in any other provision of this Act, a landlord shall be entitled to resume possession from any cultivating tenant possession for purposes of personal cultivation of lands not exceeding one-half of the extent of lands leased out to the cultivating tenant.
Section 4-A(2) is procedural and provides for the Revenue Divisional Officer holding a summary enquiry and for passing an order directing the cultivating tenant to put the landlord in possession or dismissing the application.
Section 4-A(3) and (4) run as follows:
(3) Any cultivating tenant from whom any land is sought to be resumed by the landlord for purposes of personal cultivation, may offer to pay to the landlord in respect of the extent of the land which the landlord is entitled to resume for personal cultivation the rent at the rate which was payable to him before the 27th September 1955 and the Revenue Divisional Officer shall thereupon pass an order permitting him to continue in possession on payment of such rent. The cultivating tenant shall, as long as he continues to cultivate that land, be bound to pay rent accordingly.
(4) Nothing in Sub-section (1) shall be deemed to entitle any landlord to resume possession, if, on the day the Madras Cultivating Tenants'' Protection (Amendment) Act, 1956, comes into force, he owns land exceeding 13-1/3 acres of wet land or he has been assessed to my sales-tax, profession tax or income tax under the laws relating to the levy of such taxes during 1954-55 or 1955-56 nor shall Sub-section (1) be deemed to confer on the landlord a right to resume possession of a greater extent than that which along with the extent he is already in possession of either as owner or as tenant or as both would make up an extent of five acres of wet land. It may be observed that Section 4-A confers an absolute right to the landlord to resume possession for personal cultivation of lands not exceeding one-half of the lands leased to the cultivating tenant. Though the Sub-section starts with the words notwithstanding anything contained in any other provision of this Act it will have to be read along with the other provisions of the Act so as to avoid conflict. Section 4-A(4) specifically provides that nothing in the Sub-section (1) shall be deemed to entitle the landlord to resume possession on certain conditions. Thus, Section 4-A(4) specifically qualifies the absolute right given to the landlord u/s 4-A(1). The provisions with which we are directly concerned in this case are (i) the disqualification attached to a landlord owning 13-1/3 acres of wet land, (ii) the landlord being in possession either as owner or as tenant or as both as would make up an extent of five acres of land.
In the written statement before the lower Court the tenants in Cultivating Tenants Protection Application No. 62 of 1958 and No. 63 of 1958 contended that the Petitioners owned more than 13-1/3 acres. This allegation was not gone into as the lower Court passed its order on Section 4-A(3). In the view that I am taking it has become necessary to send the case back to the lower Court for the determination of the extent of land which the landlord owns. But for purposes of these revisions and for determining the question of law, I am proceeding on the basis that the landlord does not own 13-1/3 acres of wet land. Reading the provisions of Section 4-A(1) and Section 4-A(4) together it is reasonable to construe that the right of the landlord to resume possession of lands not exceeding half of the extent of lands leased out is subject to the condition enumerated in Section 4-A(4), namely, that the landlord should not own more than 13-1/3 acres of wet land or should not be in possession of an extent of five acres as owner or as tenant.
The difficulty arises in determining the effect of Section 4-A(3) on Section 4-A(1) and Section 4-A(4). It has to be noticed that while Section 4-A(4) starts by qualifying Section 4-A(1) with the words:
Nothing in Sub-section (1) shall be deemed to entitle any landlord to resume possession....
No such qualifying words are found in Section 4-A(3). Section 4-A(3) confers a right on the cultivating tenant to continue in possession of the land and resist the application of the landlord for resumption of lands for personal cultivation on payment of rent at the rate which was payable by him before 27th September 1955. To this extent the absolute right given to the landlord u/s 4-A(1) is curtailed, though there is no specific clause as found in Section 4-A(4) qualifying the operation of Section 4-A(1) in Section 4-A(3). As the various sections in the Act and the various Sub-sections in the same section have got to be considered in a manner which will not give rise to conflicts, I am inclined to hold that the absolute right conferred on the landlord u/s 4-A(1) is qualified by the tenant''s right u/s 4-A(3). But the more difficult question is whether a case in which the landlord''s right to resume is specifically given u/s 4-A(4) is qualified by the right conferred on the tenant, u/s 4-A(3). Section 4-A(3) comes after Section 4-A(1) and before section 4-A(4).
The words in Section 4-A(3) that the tenant may offer to pay to the landlord in respect of the land which the landlord is entitled to resume for personal cultivation can only refer to Section 4-A(1). The words in respect of the extent of the land which the landlord is entitled to resume can only refer to the extent of land that is referred to u/s 4-A(1), that is half the extent of lands leased to the tenant and can have no reference to the extent specifically qualified u/s 4-A(4) of the Act. There are no words in the section to indicate that the right conferred on the landlord to resume in Section 4-A(4) is subject to Section 4-A(3). On the construction on which I am inclined to put the position will be that so far as half the extent of land to which the landlord is entitled to resume absolutely u/s 4-A(1), the tenant has an option to continue in possession u/s 4-A(3) on payment of rent payable before 27th September 1955. But if the landlord does not own 13-1/3 acres and is in possession of less than five acres of land he will be entitled to resume up to five acres of land and that right is not qualified by the right of the tenant u/s 4-A(3). This, in my view, is the natural construction of the various clauses of the Sub-sections in Section 4-A. The construction is more in accordance with the scheme of the Act. The scheme of the Act is to protect the eviction of cultivating tenants and for adjusting the land tenure in the State for the maximum benefit of the landlord and the tenant. Section 4 of the Act gives a right to the tenant for restoration of possession. It provides that the tenant who was on the land on 1st December 1953, and who is not in possession on the date of the commencement of this Act, shall be entitled to be restored to possession. But this right is denied to the tenant if the tenant, either as a owner or as a tenant, was cultivating 6-2/3 acres. So also the landlord is given a right to resume if he is not in possession of five acres of land. Section 4-A(6) also provides that if the landlord after resuming possession of the land does not carry on personal cultivation the tenant is entitled to be restored to possession. Thus the scheme of the Act is that the tenant is entitled to restoration of possession if he is not cultivating more than 6-2/3 acres of land and the landlord is entitled to resume if he is not cultivating an extent of five acres of land. The intention of the framers of the Act could not have been to exclude that landlord from cultivating even one cent of land which will be the result if Section 4-A(3) is held to qualify the Section 4-A(4). For in that case the tenant will have an absolute right of continuing to be on the land on payment of rent payable before 27th September 1955. Such construction would mean that whatever extent the tenant may be in possession the landlord cannot take anything back from him.
Learned Counsel for the Petitioners also submits that and construction which would deny the landlord the right to cultivation of even a cent of land if the tenant is willing to pay the rent payable before 27th September 1955 will be most unnatural and in effect will vitally affect the rights of the landlord to hold property and such provision will be hit at under Article 19(f) of the Constitution of India. He relies on a passage in the decision in Sundararaja v. Sub-Collector of Dindigul ILR 1957 Mad. 571 at page 580 where Rajagopala Ayyangar J., has observed as follows:
In our opinion, it is based on a classification of bigger and smaller land-owners and it has specified the reasonable extent of land which could be the subject of personal cultivation by the landlord himself. It is, therefore, based on a reasonable classification.
Mr. Kesava Iyengar, learned Counsel for the Petitioner, stresses that if the construction of Section 4-A(1) would result in complete deprivation of the right of the landlord to cultivate even a cent of land, the decision of the Bench would have been different. There is considerable force in the contention of the learned Counsel. The intention of the Legislature would not have been to deprive the landlord of his right to cultivate any extent of land.
Mr. Vaitheeswaran, learned Counsel for the Respondent, relied on the unreported decision in Civil Revision Petition No. 137 of 1959. Rajagopalan J., was considering the effect of Section 4-A(3) on Section 4-A(1). His Lordship observed as follows:
If that is the real position, it should be obvious there is no conflict at all between the provisions of Sub-section (1) of Section 4-A and those of Sub-section (3). Sub-section (3) is virtually something like a proviso to Sub-section (1), in the sense that the right conferred on the landlord by Sub-section (1) of Section 4-A is subject to the right conferred upon a cultivating tenant by Sub-section (3) of Section 4-A. The expression '' from whom any land is sought to be resumed by the landlord'' and ''the land which the landlord is entitled to resume for personal cultivation'' in Sub-section (3) of Section 4-A obviously refer to the provisions of sub-section (1) of Section 4-A and these expressions should be construed to mean any land which is sought to be resumed by the landlord for purposes of personal cultivation u/s 4-A(1), and the land which the landlord is entitled to resume for personal cultivation u/s 4-A(1). Read in that light, it emphasises what I have stated before, that the apparently absolute right conferred on the landlord by Sub-section (1) of Section 4-A is subject to the right conferred upon the cultivating tenant by Sub-section (3) of Section 4-A. Of course, but for Section 4-A(3) the right conferred by Section 4-A(1) on the landlord would be absolute. But for Section 3(7) of Act XXIV of 1956, the right conferred on the landlord by Section 4-A(1) and Section 4-A(3) read together to receive the contract rate of rent would have been illusory. But Section 3(7) of Act XXIV of 1956 specifically saved the operation of Sub-section (3) of Section 4-A of Act XXV of 1955, the scope of which I have already explained. Thus in return for the right of receiving the contract rate of rent unaffected by the provisions of the Act XXIV of 1956 the landlord''s right of resumption, for which Sub-section (1) of Section 4-A provided, would become unenforceable, if the tenant exercises the right conferred upon him by Sub-section (3) of Section 4-A. That was what happened in this case. In my view there was no conflict between the provisions of Sub-section (1) and Sub-section (3) of Section 4-A of Act XXV of 1955, and the right of the landlord under Sub-section (3), which in effect was in substitution of the right conferred on him by Sub-section (1) of Section 4-A, was not illusory.
I most respectfully agree with the observations of the learned Judge, but his Lordship had no occasion to consider the prevision of Section 4-A(4) and whether the right given to the landlord u/s 4-A(4) is in any way qualified by Section 4-A(3) . The right of the landlord who is actually in possession of less than five acres to resume an extent up to five acres of land cannot be said to be qualified by Section 4-A(3). I hold the right of the landlord to resume u/s 4-A(4) is not restricted by Section 4-A(3) of the Act.
In the result I hold that the Petitioners in both the cases are entitled to resume for personal cultivation the lands as the lands are less than five acres in extent. But in the written statements in both the Cultivating Tenants'' Protection Applications, the tenant has contended that the landlord is using more than 13-1/3 acres of land. This allegation has not been gone into by the lower Court. The lower Court will go into this allegation and if it is found that the landlord owns more than 13-1/3 acres they will not be entitled to resume the lands for personal cultivation and the tenant will be entitled to continue on payment of rent which was payable by him before 27th September 1955. If they do not own more than 13-1/3 acres of land they will be entitled to resume. Civil Revision Petition No. 1584 of 1959 and Civil Revision Petition No. 1588 of 1959 are allowed. Madras Cultivating Tenants'' Protection Applications No. 2 of 1958 and No. 63 of 1958 are remanded to the lower Court for disposal in the light of the observations made in this judgment. There will be no order as to costs in both the Civil Revision Petitions.