Kuppammal vs Vellingiri Gounder and Another

These two writ petitions raise for consideration a very important question as to the scope of Section 4 of the Madras Cultivating Tenants

Protection Act, 1955 (XXV Of 1955). The two petitions arise out of the same order of the Revenue divisional Officer and seek respectively writs

of certiorari and mandamus in regard to matters Which we shall elucidate a little later.

The petitioner is a land owner. The properly now in dispute whose extent is 92 acres 67 cents was purchased by her under a deed of sale dated

23rd May 1955. The first respondent Vellingiri Gounder and another Pappias Naidu (not a party to the petition) were the tenants previously in

cultivation of these lands. As the petitioner insisted upon her vendor giving her vacant possession as a condition of her purchase of the lands, the

latter negotiated with the first respondent and high co-lessee, and as a result of an agreement the tenants were paid a sum of Rs. 6000, as

consideration for their surrendering immediate possession of the lands. They executed a document therefore on 20th May 1955.

It will be seen that the sale deed was executed ""in favour of the petitioner three days after this relinquishment and surrender. Subsequent to the

purchase, the petitioner started cultivating the lands personally, and while she was doing so, Madras Act XXV of 1955 was passed, the same

having received the assent of the President on 24th September 1955. Claiming rights under this enactment, to whose terms we shall advert

presently, the first respondent applied to the Revenue Divisional officer, Coimbatore, for an order directing his restoration to possession of the

lands of which he had relinquished possession and which were the subject of purchase by the petitioner.

The petitioner-landowner, who was impleaded as a respondent to that application raised two defences: (1) that on a proper construction of

Section 4 of the enactment a tenant who had voluntarily surrendered possession of the lands was not entitled to claim restoration, and (2) that even

if Section 4 was capable of that construction the tenant owned and possessed lands exceeding the extent specified In Section 4(2)(i) and war,

therefore not entitled to the order for restoration. The Revenue Divisional Officer rejected both these defenses ;and the petitioner has invoked the

jurisdiction of this Court under Article 224 of the Constitution to set aside the order of the Revenue Divisional Officer or the ground that it was

beyond his jurisdiction and it was also vitiated by error apparent on the face of the record. This is the subject-matter of W. P. No. 576 of 1956.

W. P. No. 577 of 1956 is for the issue of a writ of Mandamus and is concerned with the manner in which the officer has dealt with the second

of the defences which we have mentioned above. But with this, latter we shall deal after considering the proper interpretation of Section 4, Which

is raised by the first of the defences we have mentioned above.

The material portions of the Act XXV of 1955 which are relevant in the present context are Sections 4(1) and 4(2) which run thus:

4 (p; Every cultivating tenant who was in possession of any land on the 1st December 1953 and who is not in possession thereof at the

commencement of this Act shall, on application to the Revenue Divisional Officer, be entitled to be restored to such possession on the same terms

as those applicable to the possession of the land or the 1st December, 1953.

(2) Nothing in Sub-section (1) shall be deemed to entitle any such cultivating tenant to restoration of possession-

(i) If, on the day this Act conies into force; he is in possession, either as owner or as tenant or as both, of land, exceeding the extent or specified in

the Explanation below or if he has been assessed to any sales-tax, profession tax, or Income Tax under the respective laws relating to the levy of

such taxes during 1953-54 or 1954-55, or

(ii) if the landlord after evicting such cultivating tenant from the land, has been cultivating the land by his own labour or by that of any other member

of the family or by hired labour under his supervision or control, provided as follows:

(a) the total extent of the land held by such landlord inclusive of the land, if any, held by him as a tenant does not exceed the extent specified in the

explanation below; and (b) the landlord has not been assessed to any sales-tax, profession tax or Income Tax under the respective ""laws relating to

the levy of such taxes during 1953-54 or 1954-55; or

(iii) if subsequent to the 1st December, 1953, the landlord has bona fide admitted some other cultivating tenant to the possession of land and such

other tenant has cultivated the land before the commencement of this Act;

Provided that where such other tenant is in possession, either as owner or as tenant or as both of any other land which exceeds the extent specified

in the explanation below and the cultivating tenant who was evicted is not in possession of any land or is in possession of any other land which is

less than the extent specified in the said explanation, the cultivating tenant shall be entitled to restoration of possession. -

Explanation: The extent referred to in Clause (i) to (iii) above is 6-2/3 acres of wet land or dry land irrigated from any Government source of

irrigation, which shall be taken to be equivalent to 20 acres of dry land not irrigated from any Government source of irrigation for the purpose of

determining the extent of land in any case where it consists of one or more of the classes of land mentioned above.

The application preferred by the first respondent to the Revenue Divisional Officer was u/s 4(1) of the Act. If Section 4(1) stood alone without

reference to the other provisions of the enactment, it, is not disputed that the first respondent would have satisfied its terms. He was a cultivating

tenant as defined in Section 2(a) in possession of the land on 1st December, 1953. He was also a person who was not in possession thereof at the

commencement of this Act (24th September 1955) as he had relinquished and surrendered possession on 20th May 1955. If the words in Section

4(1) ""who is not in possession thereof at the commencement of this Act"", were to be read literally as meaning a person who for whatever reason is

not factually in possession of the land on the specific date, there can be no doubt that the first respondent would be entitled, on application to the

Revenue Divisional Officer, subject to the exceptions in Section 4(ii) which we shall ignore for the present to be restored to possession of the land.

The Question raised for our consideration is whether the enactment intended the expression ""who is not in possession thereof at the

commencement of this Act"" to be read literally or whether the several provisions import other considerations qualifying the literal meaning of this

phrase.

The learned Advocate General, who appeared for the petitioner, submitted to us that in view of the general scheme of the enactment, its

purpose and policy as well as the express provisions contained in it, the expression ""who is not in possession thereof at the commencement or ''this

Act"" in Section 4(1) has to be read as meaning ""who is not in possession thereof by reason of eviction by or at the instance of the landlord"", and as

excluding'' cases where the tenant having been in possession on 1st December, 1953 ceased to be in possession at the commencement of the Act

by reason of voluntary surrender on his part.

We shall first consider the express provisions of the enactment which throw light on the Proper construction of Section 4(1). These are two in

number, and they are found in the conditions subject to which alone a cultivating tenant of the class specified in Section 4(1) is entitled to

restoration. Section 4(2)(ii) is one such provision, and merely for convenience we shall repeat its terms:

4 (2): Nothing in Sub-section (1) snail be deemed to entitle any such cultivating tenant to restoration of possession;

(ii) if the landlord, after evicting such cultivating tenant from the land, has been cultivating the land by his own labour or by that of any other member

of his family or by hired labour under his supervision or control.

It would be apparent that Section 4(2)(ii) makes a provision rendering Sub-section (1) inapplicable to "" case where the landlord resumes personal

cultivation after ""an eviction"" subject of course to the provisos to Section 4(2)(ii) which for the present purpose are not material,

If the Phrase ""who Is not in possession thereof at the commencement of this Act"" in Section 4(1) were read literally as meaning ""who is not in

possession by reason either of an antecedent eviction or of voluntary surrender -- as these are the only two alternatives by which possession might

be lost -- it would be seen that while an evicting landlord who resumes possession for personal cultivation is afforded a protection though

somewhat limited, by Section 4(2)(ii), no such qualified protection even is afforded in cases where the tenant voluntarily surrenders and, by virtue

thereof, ""is not in possession at the commencement of the Act.

If the construction adopted by the Revenue Divisional Officer were accepted, it would mean that in such cases of voluntary surrender, Section 4(2)

(ii) would be inapplicable to protect the landlord and that the Act conferred higher rights on a surrendering tenant than on an evicted one, which is

certainly illogical.

The next provision to which our attention was drawn was the language of the proviso to Section 4(2)(111). We shall repeat this provision also

which reads:

(4) (2). Nothing in Sub-section (1) shall be deemed to entitle any such cultivating tenant to restoration of possession;

(iii) if subsequent to the 1st December 1953, the landlord has bona fide admitted some other cultivating tenant to the possession of land and such

other tenant has cultivated the land before the commencement of this Act;

Provided that where such other tenant is in possession, either as owner or as tenant or as both of any other land which exceeds the extent specified

in the explanation below and the cultivating tenant who was evicted is not in possession of any land or is in possession of any other land which is

less than the extent specified in the said explanation, the cultivating tenant shall be entitled to restoration of possession.

This sub-clause also throws light on the type of dispossession or ceasing to be in possession which is referred to as ""not in possession thereof"" in

Section 4(1). Provision is made in the proviso only for a cultivating tenant-applicant who was evicted, but nothing is said as regards a cultivating

tenant who had surrendered possession of the land. It cannot be that in the case of tenants who relinquished or surrendered possession of the lands

voluntarily, the exceptions or reservations applicable to unjustly evicted tenants would not apply. It cannot be that tenants who had voluntarily

relinquished or surrendered possession of their holdings were intended to be placed on a better footing than tenants forcibly or unjustly evicted and

to be relieved of all Qualifications and conditions as regards the restoration to possession applicable to the other class.

Lastly, we might refer also to the language employed in Section 4(4)(ii). Sub-section 4 deals with the procedure to be followed by the Revenue

Divisional Officer on the receipt of an application for restoration to possession u/s 4(1), and sets out the conditions which might be imposed in

directing restoration. The conditions are thus stated:

In passing an order allowing the application the Revenue Divisional Officer may impose such conditions as he may consider just and equitable

including conditions in regard to (ii) the reimbursement by the applicant to the landlord or the other cultivating tenant in respect of the expenses

incurred or the labour done by him during the period when the applicant was not in possession, on any crop which has not been harvested. It

would be noticed that the last provision uses the words ""when the applicant was not in possession"" -- words similar to those occurring in Section

4(1) with which we are concerned. There can be no doubt that Section 4(4)(ii) deals with the case of evicted tenants (vide Section 4(2)); who,

therefore, were not in possession at the date of the Act, notwithstanding the use of the expression ""not In? possession"" without specific reference

as to how they ceased to be in possession. It would therefore be not unreasonable to hold that the words In Section 4(1) should also be similarly

construed; These provisions undoubtedly support the learned Advocate General In the construction of Section 4(1): which he invites us to adopt.

The resulting position might be expressed thus. Section 4(I) confers rights on a class of tenants and uses very general language to designate the

persons comprehended within its scope: If the other portions of the enactment contained provisions expressly narrowing the scope of the perfectly

general words in Section 4(1), the rule of construction would undoubtedly be to reconcile the two portions and hold that the general words in

Section 4(1) were to read as qualified.

This qualification however need, not be bywords of the enactment expressly referring to the words in Section 4 CD. The other sub-sections of

Section 4 enact the machinery for Implementing the benefits declared or conferred by Sub-section (1). Normally, therefore, the machinery

provisions would be co-extensive with and cover same field as the declaratory or right-conferring provision. In the event of the words of these two

sets of provisions not being co-extensive -- or the one being more extensive than the other -- two constructions are possible of being adopted.

(1) To read the words of machinery provisions in such a manner as to take in every situation comprehended by the right-conferring provision or (2)

read the right-confer ring provision as limited to those situations which are covered toy the machinery provision. The alternative to be adopted in

any particular context would wholly depend or the scheme of the enactment generally, as also whether having regard to the language employed, it

is possible to read down the declaratory words or read up the words in the machinery provision.

Having given the matter our best consideration, we are of the opinion that the general words in Section 4(1) must, in the context, be read as if it ran

who by reason of an eviction is not in possession thereof at the commencement of the Act."" The question however still to be considered is as

regards the import of the expression ""evict"" in Section 4(2).

But before dealing with this matter, we shall refer to other provisions of the enactment which, in our opinion, not only reinforce the

interpretation we are placing on the relevant words of Section 4(1) but also throw light on what the framers of the enactment meant to convey by

the word ""evict"".

The other provision we have in mind is Section 3. While Section 4 gives what one might term a retrospective operation to the statute, Section 3

is the prospective provision. In regard to tenants on the land at the date of the enactment guarantee conferred by Section 3(1) is that they would

not be ""evicted from the holdings by or at the Instance of the landlord."" It enacts:

3 (1): Subject to the next succeeding subsections, 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."" Before leaving this sub-section

we might point cut that Section 3 does not prevent a tenant from relinquishing his holding or surrendering his tenancy to the landlord or giving up

possession voluntarily at the end of the term. What it is designed to prevent is some hostile act on the part of the landlord by which the tenant is

deprived of possession. The preamble to the enactment which recites the necessity ""to protect cultivating tenants in certain areas in the State of

Madras from unjust eviction"" obviously uses the expression eviction"" as meaning a dispossession of a tenant ""by or at the instance of the landlord.

If this is the meaning of eviction in the preamble which is carried out by the provisions of Section 3, normal rules of construction would appear to

point to the expression, connoting the same idea when it occurs in Section 4(2) as in the absence of clear words, a retrospective provision would

not be held to be of wider amplitude than the prospective.

Apart from the indications we have adverted to and the light thrown by the use of the words ""by or at the instance of the landlord"" in Section

3(1), the same conclusion is reached by an examination of the meaning of the expression ""eviction"" as understood by courts. The word has not

been defined in the Statute. Its meaning has therefore to be ascertained with reference to dictionaries as well as the decisions where the concept

involved has been discussed.

Wharton defines eviction as ""dispossession'''' which certainly does not help us much. Possibly the best exposition of the subject is to be found in

the judgment of the Court of Common Pleas-in Upton v. Towned, (1855) 25 LJ (CP) 44 (A). It is not necessary for the purpose of the present

case to refer to the facts of that decision, but it is sufficient to extract the meaning of the word as found in passage in the several judgment in the

case. Jervis C. J. during the course of the arguments said ;

I think if a landlord went and took out the windows of a house with the intention of turning the tenant out, the jury would be of opinion that that

was an eviction.

This shows that it is not necessary for an eviction to be an act in the law but it is sufficient if a hostile act of the landlord led to the dispossession. In

the course of his judgment the learned Chief Justice said:

What an eviction is it is difficult to define with technical accuracy. The word ''eviction'' has in latter times been understood to mean what formerly it

was not intended to express. ..''Eviction'' from evincere, to evict or dispossess by course of law, was used originally when the person having the

permanent title asserted it, and expelled his tenant..... The word ''eviction'' has come to have a popular meaning, and to be applied to every kind of

expulsion in fact.

Now, getting rid of the old notion of an ''eviction'', it may be taken to mean, not a mere trespass without anything more, because, though every

eviction implies a trespass, every trespass does not amount to an eviction, but something of a more permanent character done by the landlord with

the intention of depriving the tenant of the enjoyment of the whole or part of the demise premises..... It is for the Jury to say whether the act was

done by the landlord, and whether it was done with the intention of depriving the tenant? of the enjoyment."" Williams J. expressed himself thus :

It is curious that there is so little to be found in the books, which is definite and precise, as to what amounts to an eviction. A particular act may be

a mere trespass, or may amount to an eviction, according to the intention of the party who does it and the result of such cases as can be found is

that acts will amount to an eviction, if done with the intention, with respect to any part of the premises demised, that the tenant should not hold.

To a similar effect was the conclusion of Crowder J. who said :

The word ''eviction'' has received no precise definition, as employed with respect to the acts of a landlord towards his tenant...The Question here

is, whether there has been an expulsion or putting out by the landlord from part of the premises....an expulsion or a privation of the occupation of

the premises as demised."" Willes J. who was the other learned Judge who constituted the Bench said that he understood by the expression

eviction"" ""an act of a permanent character done by a landlord, as has the effect substantially of preventing his tenant from enjoying what was

demised to him, or any part of it..... and it need not be done by going on the land and putting the tenant out.....The ancient authorities collected in

Viner''s Abridgment -- shows that it is not necessary that there should be an actual bodily expulsion to constitute disseisin.

There is nothing in the later authorities to modify the view expressed by the learned Judges in (1855) 25 LJ CP 44 (A). We consider that ""eviction

as used in Section 3(1) and Section 4(2) is an fiction of this character and that in cases where the tenant surrenders possession voluntarily without

being compelled to do so by any act or conduct on the part of the landlord, there is no eviction. It is not our purpose to define exhaustively the acts

or conduct on the part of a landlord which constitute eviction. It is sufficient for our purpose to say that there would be no eviction when a tenant

voluntarily and willingly surrenders possession of the land to the landlord.

So far as the present case is concerned, the admitted facts and the finding of the Revenue divisional officer are that, the surrender was for

consideration and was a result of a bargain freely and voluntarily entered into between the parties. In the circumstances there was no eviction of the

first respondent from the holding which he formerly held.

In view of our construction of Section 4(1), that it contemplates restoration to possession only of cultivating tenants who were in possession of their

holdings on 1st December 1953 but who ceased to be in possession at the date of the commencement of the Act by reason of an eviction as

specified in the several provisions which we have already pointed out, it follows that the first respondent was not entitled to an order for restoration

to possession under the provisions of Section 4.

Learned counsel for the first respondent placed some reliance on the decision of one of us in W. P. No. 492, etc., of 1953 (Mad) (B), where

the question of the construction, of Section 6(1) of the Tanjore Tenants and Pannayals Protection Act, XIV of 1952, came up for consideration. In

that writ petition it was held that a tenant, who had surrendered possession of the holding between 1st December 1951 and the commencement of

that Act (23rd August 1952) could be restored to possession u/s 6. Though there is some similarity between the language of Section 6 (1) of Act

XIV of 1952 and Section 4(1) of the present enactment, the absence in the Tanjore Enactment, Act XIV of 1952, of the reference to the applicant

u/s 6 as an evicted person, in the machinery sub-sections of Section 6 of Act XIV of 1952 renders that decision inapplicable to or to afford any

guidance for, the interpretation of Section 4 of Act XXV of 1955;

In the view which we have expressed above, the order u/s 4 restoring the first respondent to possession was without jurisdiction and is

therefore liable to be set aside. W. P. No. 576 of 1956 succeeds and the rule already issued is made absolute. The order of the Revenue divisional

officer is quashed. The petitioner will be entitled to his costs. Counsel''s fee Rs. 100.

In view of our allowing W. P. No. 576 of 1956, W. P. No. 577 of 1958, has become unnecessary. Since however the petition has been

argued in full, we shall state our conclusions as regards that petition also. The matter arises this way. u/s 4(2)(i) of the Act a cultivating tenant who

satisfies the conditions of Section 4(1) is not however entitled to an order for ""restoration to possession"" if he was in possession either as owner, or

as tenant or as both, of land exceeding 6-2/3 acres of wet land or dry land irrigated from any Government source of irrigation, which shall be taken

to be equivalent to 20 acres of dry land not irrigated from any Government source of irrigation.

In the application for restoration which the tenant filed the tenant specified ""nil"" against column 9 of the application, which was in the form

prescribed by rules as regards the extent of the land possessed by him. He amplified this statement in paragraph 14 of his petition by saying that he

had no lands of his own and he had not been assessed to any sales-tax, profession-tax or Income Tax for the years 1953-54 and 1954-55. The

present petitioner denied this in, the counter which she field and in paragraph 8 stated :

this respondent learns that the petitioner had been on the date when the Act came into force in possession of more than the extent of lands

referred in Explanation to Sub-section 2 of Section 4 of Act XXV of 1955 as the owner. Hence the present application is unsustainable."" The

tenant examined himself before the Revenue divisional officer and in the course of his evidence he stated :

I have my father. We have 20 acres of kadu. I am not cultivating them. My father is cultivating them. I am separated from my father. There is no

partition deed. No lands were given to me. I partitioned in 1947. I have no record to show that there was partition. 20 acres is made up of 10

acres of kadu and 10 acres of thottam.''''

It was therefore clear that even on this evidence the family of which the tenant was a member covered 20 acres of land of which 10 acres were

garden land. The tenant alleged a partition but produced no evidence in regard to it which was certainly a matter within his own knowledge. The

Revenue Divisional Officer disposed of this defence thus:

It was sought to be contended that the petitioner was in possession of 20 acres of lands and so was not entitled to restoration. The petitioner

admitted that his father has ten acres of dry land and ten acres of thottam but stated that he is not in possession of them as he had already become

a separated member. The defence has not rebutted this statement.

The learned Advocate General''s grievance is as regards the last sentence in the above passage, on the basis of which the officer has held that the

tenant''s case had been proved. In our opinion the complaint of the learned Advocate General Is well founded. The question as to whether the

tenant owned or possessed lands beyond the maximum prescribed by Section 4 (2) is a matter of evidence. But in the present case, the tenant

admitted that his family was possessed of more than the maximum. It was for him to have proved by acceptable evidence that he had ceased to be

the owner or ceased to have any right to the extent of land beyond that prescribed by Section 4 (2). Certainly it was not for the landlord to

establish this fact.

In our opinion the order of the officer passed on a finding reached by casting the burden on the landlord, ''in the circumstances of the case cannot

be supported. If we had reached a conclusion adverse to the landlord in W. P. No. 576 of 1956, we would have made the rule in W. P No. 577

of 1956 absolute and directed the officer to conduct a proper enquiry and adjudicate upon whether the tenant fell within the exception or not. In

view however of our order in W. P. No. 576 of 1956, we will dismiss the W. P. No. 577 of 1956 without coats and with the remark that it is

unnecessary to pass any orders in it.