K. Visalam vs The Additional Authorised Officer (Land Reforms)

Veeraswami, J.—The Petitioner who is a landowner seeks to quash a notice issued to her in Form 32, dated January 18, 1966, under the provisions of the Madras Land Reforms (Fixation of Ceiling on Land) Act, (VIII of 1961). The effect of this notice is that an extent of 94 cents as being in excess of a cultivating tenant''s ceiling area would be dealt with under Chapter VIII of the Act. The Petitioner says that this extent of 94 cents should. revert to her u/s 17(1). The question will turn on the construction of Sections 5 and 17 and some of the provisions in Chapter VIII.

Section 5(1)(a) defines the ceiling area in the case of a person or a family. But this provision opens with the words subject to the provisions of Chapter VIII. Chapter VIII relates to a cultivating tenant''s ceiling area. Section 59 limits the operation of this chapter to a period of three years, now extended to six years from the date of the publication of the Act. The next section defines the cultivating tenant''s ceiling area to be five standard acres held by any person partly as a cultivating tenant and partly as owner or wholly as a cultivating tenant. There is an explanation to this section to the effect that the expression cultivating tenant will include any tenant who is in actual possession of land, though he does not contribute his own physical labour or that of any member of his family in the cultivation of such land. Section 61 requires a person holding land as a cultivating tenant to furnish returns in certain cases. Section 62 empowers the authorised officer to take possession of land in excess of the cultivating tenant''s ceiling area. In respect of the land taken possession of under that section, there is the liability u/s 63 on the Government to pay rent. The lands so taken possession of are intended u/s 64 to be distributed by the authorised officer in the manner indicated. The rest of the provision in this Chapter are perhaps not relevant for the instant purpose except Section 72, which says that the provisions of this Chapter, subject to the provisions of Section 17, have effect, notwithstanding anything inconsistent therewith contained in any other provisions of the Act. This Chapter has an overriding effect and will prevail notwithstanding anything inconsistent therewith contained in the Act, but such effect of the Chapter, is, however, made subject to the provisions of Section 17, which means that Section 17 will prevail over Chapter VIII. Section 17(1) states:

Where any land held by any person as tenant is in excess of the extent of land which he is entitled to hold u/s 5, the possession of the land in such excess shall, with effect from the date of the publication of the final statement u/s 12 or 14, revert to the landowner where and to the extent to which the land of the landowner himself is not liable to be declared as surplus land in accordance with the provisions of this Act.

While this provision is relied upon by the Petitioner for the Government it is said that it will not assist the Petitioner to have a reverter of the 94 cents.

On facts, the Petitioner owns 5 acres 87 cents. The total holding of the tenant is 5 acres 94 cents, no part of which he owns.

A tenant is defined by the Act to include a cultivating tenant. When Section 17(1) speaks of any person as a tenant it has to be taken that the word tenant there means a cultivating tenant in the present context. If he is a tenant and, therefore, a cultivating tenant, he will be governed by Chapter VIII, and that means that for purposes of Section 5, he will not come within its ambit so as to enable him to hold 30 standard acres. The effect of the words subject to the provisions of Chapter VIII in Section 6(1)(a) is, in our opinion that the ceiling area fixed by that provision will not apply to a case of a cultivating tenant for whom a separate ceiling is fixed by Section 60. That being the case, when we come to Section 17(1), the meaning is clear that where a tenant or a cultivating tenant''s holding is in excess of the extent of the ceiling area fixed for him, namely, five acres, the excess can be taken over, but if the excess is less than the ceiling area allowed to a landowner, to the limit of the difference to make up 30 standard acres, the land in excess of the permissible holding in the hands of the cultivating tenant will revert to such landowner.

What the learned Government Pleader contends; however, is that the words subject to the provisions of Chapter VIII in Section 5(1)(a) do not mean that a cultivating tenant in his capacity as a person cannot own what is permitted by that section. In other words, Section 5(1)(a) has application to every person but not to a cultivating tenant. But inasmuch as a cultivating tenant is also a person, to that extent Section 5 will apply. But in so far as he is a cultivating tenant, Chapter VIII will apply. There is, therefore, according to the learned Government Pleader, a ceiling within a ceiling, namely, that as a person he can have 30 standard acres, but as a cultivating tenant he can have only 5 standard acres. If Section 5(1)(a) is understood in that manner, it is obvious, according to him, that Section 17(1) will not enable the Petitioner to get a reverter of the 94 cents.

We cannot accept this construction. When Section 5(1)(a) says, subject to the provisions of Chapter VIII in the case of a cultivating tenant, the only provisions to be looked at for application in his case are those found in Chapter VIII. It follows that when Section 17(1) speaks of a tenant, he is a person who is governed by Chapter VIII. Understood in that sense, which is the only sense in which the provisions aforementioned can be understood, we have no doubt that the Petitioner is entitled to the benefit of Section 17(1). This will be more especially so, because Section 60 itself defines a cultivating tenant''s ceiling area as so many acres held by any person partly as a cultivating tenant and partly as an owner or wholly as a cultivating tenant. It is, therefore, not permissible to make a dissection of a cultivating tenant as a tenant for one purpose and as a person for another purpose, namely for attracting Section 5.

The petition is allowed with costs.