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Judgment
Jayarama Chouta, J.—The Petitioner in this writ petition has sought for a writ of certiorari to call for the records from respondents 1 and 2
relating to their proceedings in Mu Mu-P3/73906/93 dated 18.1.95 and proceedings No. Pa. Mu No. 16132/93 dated 25.10.1993 respectively
and quash the same. The necessary facts for the purpose of disposal of this writ petition could be conveniently gathered from the affidavit of the
petitioner.
The land measuring an extent of 2.28 acres comprised in survey Nos. 18/8, 18/2a, 19/c and survey No. 8/8 of Kaloorani village belongs to the
third respondent. Originally, the third respondent leased out the abovesaid lands to one Mr. Munuswamy Thevar by a registered sale deed, dated
31-7-1978. On 4.8.1978, with the consent of the 3rd respondent, the said Munusamy Thevar had leased out the said lands in favour of the
petitioner by executing a registered lease deed. After the said lease deed, the minor sons of the third respondent filed a civil suit in O.S. No. 32 of
1979 on the file of the Sub Court at Sivaganga for partition. The petitioner was the 4th defendant in the said suit and a decree was passed subject
to the lease in favour of the petitioner. The petitioner used to pay the lease amount to the third respondent directly and the third respondent never
used to issue receipts for the payment of the lease amount. Normally, in the villages, none will insist for receipts. That is how the petitioner did not
insist for the receipt for the payment of lease amount.
In the year 1992, the third respondent tried to interfere with the lawful possession of the land and the petitioner was compelled to file a suit in
O.S. No. 151 of 1992 on the file of the District Munsif, Aruppukottai, against the 3rd respondent. In the said suit the third respondent filed a
written statement stating that he is in possession of the suit properties from 1981 onwards, and he had raised crops and the petitioner had
trespassed into the suit properties illegally after obtaining the interim injunction.
Thereafter the third respondent filed a petition under S. 3of the Tamil Nadu Cultivating Tenants Protection Act, 1955 (hereinafter referred to as
the Act) before the second respondent for eviction of the petitioner on the ground of arrears of rent. The petitioner resisted the said petition on the
ground that there are no arrears as alleged. However, the second respondent has passed an eviction order on the ground that the petitioner has
failed to discharge his burden of payment of rents. The appeal filed before the first respondent by the petitioner was also dismissed However, at
the time of filing the appeal, the petitioner has obtained stay and at that time, the first respondent had indicated that the third respondent has not
filed the petition in proper form as required in the Act and Rules and the second respondent is not the competent authority to hear to the said
application and it should be filed before the Special Deputy Collector, Revenue Court, Madurai. Against the said order of dismissal the present
writ petition has been filed.
Since the orders passed by the authorities below are in Tamil, learned Counsel for the petitioner provided me a true translated version in English
of the said orders.
On behalf of the third respondent, an affidavit has been filed for vacating the stay order. In the said counter-affidavit, the third respondent has
stated that due to his disability in his legs, he leased the property for three years from 30.7.1978 for a meagre amount of Rs. 500/- which was
subsequently raised to Rs. 600/- per year. It was leased to one Chellam Servai from whom the present petitioner has taken the lands on lease. He
has further submitted that the Revenue Divisional Officer has ordered for eviction of the petitioner on the ground of arrears of rent which order was
confirmed by the District Revenue Officer, Virudhunagar. According to the third respondent, the petitioner ought to have applied for revision
against the order of Revenue Divisional Officer under S. 6B of the Act and also under S. 115of the Code of Civil Procedure, before this Court, He
has filed the present writ petition to drag on the proceedings. According to the third respondent the petitioner has not paid the lease amount for the
past 17 years which comes to more than Rs. 10,200/- and he is working as teacher having lot of agricultural holdings and he is not at all entitled to
any protection provided under the Act. On these grounds, he has prayed this Court to vacate the ad interim stay granted in favour of the petitioner.
On behalf of the first respondent one Veeraraghavan the District Revenue Officer. Kamarajar District has sworn to a counter- affidavit. In his
counter-affidavit he has denied all the allegations made in the affidavit filed by the petitioner except those that are specifically admitted by him. He
has stated that the provisions of S. 3 of the Act empowers the Revenue Divisional Officer to hold a summary enquiry and pass appropriate orders
in the case where petitioners are filed, under that Section for eviction of a tenant on the ground of default of payment of rent. Further, the District
Revenue Officer is the competent authority to entertain the appeal or revision by virtue of general power of revision vested with him. He has stated
that the third respondent filed a petition under S. 3 of the said Act before the second respondent for eviction of the petitioner since the petitioner
has not paid the lease amount and the second respondent passed an order of eviction on the ground that the petitioner was in arrears of lease
amount. Since the petitioner has failed to prove that he has paid the lease amount to the third respondent, the order passed by the second
respondent has been confirmed by him. Hence, the orders of the 1st and 2nd respondents are legal and sustainable in law.
He has further slated that the petitioner has filed a revision petition before the first respondent and the provisions of the Act empowers the
Revenue Divisional Officer to hold a summary enquiry and pass appropriate orders in cases where a petition is filed for eviction of a tenant on the
ground of default in payment of rent. The District Revenue Officer is the competent authority to entertain the appeal or revision by virtue of general
power of revision vested with him. As per the provisions of S. 3 (4) (b) of the Act, if the lessee has failed to pay the arrears of lease amount to the
landlord, the competent authority, after holding an enquiry may order for eviction which has been done in the present case. He submitted that there
is no merit in the writ petition and the same is liable to be dismissed.
Heard Mr. V.V. Venkataswami, learned counsel for the petitioner, Mr. K. Balasubramanian, learned Additional Government pleader for
respondents 1 and 2 and Mr. Sudarsana Nachiappan, learned counsel for the 3rd respondent and perused the orders.
Before going into the merits of the case, I have to dispose of the preliminary objection raised by the third respondent that this writ petition is
not maintainable in view of S. 6-Bof the Act, S. 6-B of the Act reads as follows:
The Revenue Divisional Officer shall be deemed to be a Court subordinate to the High Court for the purposes of S. 115 of the Code of Civil
Procedure, 1908 (Central Act V of 1908) and his orders shall be liable to revision by the High Court under the provisions of that Section.
It is true that the order of the Revenue Divisional Officer is liable to be questioned by filing a revision under Sec. 115 of the CPC before the High
Court. Here, in the present case, the writ has been filed against the order of these Revenue Divisional Officer. Further, the High Court invoking its
jurisdiction under Arts. 226and 227of the Constitution of India has entertained this writ petition and on technical ground that the revision under
Sec. 115 of the CPC could have been filed in the High Court, the writ petition cannot be dismissed on that ground. The High Court can excercise
its. jurisdiction under Art. 226of the Constitution of India, Hence, the preliminary objection raised by the learned counsel for the 3rd respondent
has been overruled.
Now turning to the merits of the case, learned counsel for the petitioner raised two contentions. The first submission was that the Revenue
Divisional Officer has no jurisdiction to entrain the application submitted under S. 3 of the Act since the power has been given to the Special
Revenue Divisional Officer by the Government by a Notification and hence on that ground, the orders of the authorities below are liable to be set
aside. The second submission of the learned counsel for the petitioner was that the order passed by the second respondent on the face of it is
illegal as the said authority has nowhere mentioned what is the arrear of rent due from the petitioner. Further, if there is any arrears due from the
tenant-petitioner, the second respondent ought to have given an opportunity to deposit the said arrears to the petitioner as per the provisions of the
Act which has not been done in the present case. On these grounds, learned advocate for the petitioner submitted that the writ petition is entitled to
be allowed.
On the other hand, learned advocate appearing for the 3rd respondent and the learned Additional Government Pleader for respondents 1 and
2 submitted that the jurisdiction point has not been raised by the petitioner before the second respondent and the petitioner has submitted and
surrendered to the jurisdiction of the second respondent and now when the order has gone against him he has come with this contention before this
Court for the first time which should not be permitted to be taken up in this writ petition before this Court They also pointed out that it is not as if
there was initial lack of jurisdiction to the Revenue Divisional Officer. The Government, in order to dispose of the matters expeditiously having
regard to the pendency of the cases might have thought it fit to confer jurisdiction over the Revenue Divisional Officers also and the Government
has not taken away the jurisdiction of the Revenue Divisional Officers, It cannot be said that the Revenue Divisional Officers have no jurisdiction at
all to try the said applications filed under S. 3 of the Act. As far as the second submission is concerned, learned counsel submitted that the
authority has come to the conclusion on the ground that the petitioner has failed to produce any receipt for the payment of rent and since he was on
arrears the order of eviction has been passed by the authorities below in exercising the powers vested with them by the Act and there is no illegality
in the said orders.
Learned Counsel for the petitioner in support of his first submission has placed reliance on a decision of the Supreme Court in Most. Rev.
P.M.A. Metropolitan and others, etc. etc. Vs. Moran Mar Marthoma and another etc. etc., and submitted that the bar of lack of jurisdiction can
be entertained at any stage since the order of decree passed without jurisdiction is nonest in law.
There is no quarrel about the proposition of law. In the present case, it cannot be said that the second respondent had no jurisdiction to
entertain the application filed under S. 3 of the Act. As per S. 3of the Act, it is only the Revenue Divisional Officer who has been empowered to
entertain the application which has been done in the present case. Subsequently .if at all the Government might have empowered the Special
Revenue Divisional officers to have jurisdiction to entertain the said applications Hence, it cannot be said that the second respondent had initial lack
of jurisdiction That being so the decision cited above by the learned counsel will not come to his rescue The petitioner has not raised any objection
before the second respondent. Hence, J. reject this submission
As far as the second submission is concerned. I see from the translated version of the order passed by the second respondent that nowhere he
has fixed what is the arrears due from the petitioner. The order does not refer to the quantum of rent, arrears due and period for which the said
rent is due. The order is very cryptic and baled. It gives an impression that the second respondent has not applied his mind while deciding the said
application and passing the eviction order. Further, from the decision cited by the learned counsel for the Petitioner in Ayyammal v. Venkataraman
(1982 II. M.L.J. 432) learned counsel placed reliance on the following portion found in paragraph 16 at page 434:
In the order that he had passed, which I have now set aside, the Authorised Officer had not followed the various stages of the procedure laid
down by S. 3 of the Act, As pointed out by this Court in Chinnayyan v. Nagarathinam Pillai (1961) 1 M.L.J. 389) there are at least two distinct
stages which the Authorised officer must pass through in the determination of an eviction petition. The two stages are distinct and separate. The
Authorised Officer cannot skip the first stage to see an end to the proceedings. At the initial stage the Authorised Officer must give the tenant an
opportunity to pay up the arrears by giving a reasonable time. The second stage would come only after the time fixed by the Court for deposit
expires without the tenant having made the deposit. The Authorised Officer in this case has rolled the two stage proceedings into one. In his order,
as framed, he has pre-determined the question of eviction irrespective of depositor non-deposit, by making the eviction order self-operative. This
is not the proper way to administer S. 3 (4)(b) of the Act The Authorised Officer has to comply with the statutory provision to the letter.
Similar is the view expressed by this Court in the decision in Muniappan Vs. Hazrathunnissa, in which this Court had held as follows:
According to Sec. 3(4)(b) of the Tamil Nadu Cultivating Tenants Protection Act, 1955, after ascertaining the arrears of rent, a duty is cast upon
the Revenue Court to grant time to the tenant to deposit the rent. This was not done by the Revenue Court in this case. Therefore, the order
passed by the Revenue Court is hit by S. 3 (4)(b) of the Act. The order of eviction is set aside on this ground.
This was the view taken by this Court in Ayyammal Vs. N. Venkataraman, In view of the above said legal position, the eviction order passed by
the Revenue Court on the ground of arrears of rent is not in order. Therefore I set aside the order of eviction passed by the Revenue Court on this
ground.
As far as this contention is concerned, there cannot be any answer by the learned counsel for the respondents. Hence for the reasons stated
above, I allow this writ petition by setting aside the orders passed by respondents 1 and 2 and remit the matter to the second respondent to
consider the application filed by the 3rd respondent with a direction to dispose of the said application filed u/s 3 of the Act in accordance with law.
It is open to the petitioner to raise the question of jurisdiction before the second respondent and the second respondent should consider the said
question in accordance with law. However there will be no order as to cost.