Lakshmi and Others vs Rama Iyer and Others

L. Manoharan, J.—The first Respondent landlord filed application No. 1128 of 1972 before the Munsiff Land Tribunal, Palghat for recovery of the rent for the years 1144 to 1147 against the Petitioners. Petitioners contended that since the right, title and interest of the land owner has vested with the Government u/s 72 of the Kerala Land Reforms Act, 1963 (Act 1/1964) (for short ''the Act'') on the notified date viz., 1st January 1970 the Petitioners are entitled to recover arrears of rent accrued before 1st January 1970 only. The said contention was not accepted by the Land Tribunal, and the petition by the Respondents was allowed. Against the said order, the revision Petitioners filed A.A. 2986 of 1977 before the appellate authority. The appellate authority dismissed the appeal. This Civil Revision petition is directed against the judgment of the appellate authority.

The Landlord had also filed application No. 909 of 1974 for recovery of arrears of rent for the period from 1141 to 1143 and 1148, 1149. In that application the landlord was allowed to recover arrears for the period 1966 to 1968. Application Nos. 1128 of 1972 and 909 of 1974 were disposed of by a common order by the Munsiff, Land Tribunal, Palghat. An appeal was directed against the said order. This C.R.P. is against the claim in application No. 1128 of 1972 for recovery of arrears of rent for the period 1144-1147 corresponding to the period 1069-1972.

Learned Counsel for the Petitioners contended that, since as per Section 72(1) of the Act the right, title and interest of the Respondents vested in the Government on the appointed day viz. on 1st January 1970, the Respondents are not entitled to recover any arrears for the period after the said date. Learned Counsel for the Respondents on the other hand contended, since the application for resumption by the Respondents was pending, as per the proviso to Section 72(1), there could be no vesting as on 1st January 1970 and since the said application was dismissed only on 30th March 1972, the vesting of the title, and interest of the Respondents could take place only on the said date. The learned Counsel sought support from Section 72Q of the Act. According to the learned Counsel the Respondents are entitled to recover arrears of rent accrued till 30th March 1972.

In terms of Section 72(1) of the Act the vesting of the right, title and interest of the land-owner would take place on 1st January 1970 there is no dispute that the Petitioners are tenants within the meaning of Act 1/1964. But the proviso to Section 72(1) enjoins, no. vesting of the title of the holding with respect to which an application for resumption is pending would take place and as per Sub-section (2) the title and interest of the landlord would vest with the Government only with effect from the date on which the application for resumption was finally rejected. Section 72Q, states, that the right of the land owner to recover arrears of rent till the date of the vesting of title on the cultivating tenant u/s 59(2) on an application u/s 54, or in the State u/s 66(9) or Section 72, would not be affected. According to the Respondent since the application for resumption was rejected by Ext. B-1 order only on 30th March 1972, the Respondents are entitled to recover arrears till that date. On the other hand the learned Counsel for the Petitioners contended that the said argument of the Respondents cannot be sustained in view of Section 72QQ. Section 72QQ reads:

72QQ,. Cultivating tenant not liable to pay rent if resumption application is rejected.--Notwithstanding anything contained in any law for the time being in force, or in any contract, custom or usage, or in any judgment, decree or order of any court or Land Tribunal, in the case of a holding or part of a holding in respect of which an application for resumption under the provisions of this Act is rejected, the cultivating tenant shall not be liable to pay any rent for such holding or part of the holding, as the case may be, with effect on and from the date notified tinder Sub-section (1) of Section 72.

Though a combined reading of the proviso to Section 72(1), Sub-section (2) thereof and Section 72Q, would show that, the land lord could maintain a proceeding for recovery of arrears accrued till the rejection of an application for resumption, Section 72QQ specifically provides that the effect of dismissal of an application for resumption will not give the landlord a right to recover arrears of rent accrued till the date of rejection of the application for resumption.

Section 72QQ is consistent with the scheme and object of the Act. The throb and voice of the proviso to Section 72(1), Sub-section (2) thereof and Section 72Q is fairness: the vesting of the title of the landlord in the tenant or the Government as the case may be is postponed during the pendency of the application for resumption, and provides that the land-owner is entitled to recover the arrears of rent accrued before the date of vesting as if such vesting has not taken place. As noticed, Section 72(2) enjoins such vesting would take place only when the application for resumption is finally rejected. But Section 72QQ, qualified the effect of such rejection in relation to the right of the landlord to recover arrears. As per the said section on rejection of an application for resumption the tenant shall not be liable to pay any rent for such holding with effect from the date notified u/s 72(1) viz. 1st January 1970. The avowed purpose of Section 72QQ is to protect the interest of the tenant from artificially postponing the vesting of title u/s 72(1) by filing unsustainable applications for resumption by the landlord to enable him to recover rent accrued after 1st January 1970. Section 72QQ is intended to scotch such attempt.

Ext. B-1 shows that the application by the landlord for resumption was rejected. But, learned Counsel for the Respondents contended that, since the application was rejected as withdrawn, the Petitioners are not entitled to claim protection u/s 72QQ. The argument has no legs to stand. Section 72QQ does not make a distinction between rejection on merits or for default, the character of the order rejecting the application is not relevant. If the application is rejected the effect u/s 72QQ should follow. Even if the character of Ext. B-1--that application was dismissed as withdrawn--is relevant, the Respondent cannot gain any advantage. Ext. B-1 shows that the Respondents were allowed to withdraw the application for resumption without prejudice to their contention in I.A. No. 627 of 1970. The effect of withdrawal in such circumstance is, the Respondent opted to treat that such application was not filed; that is why they wanted to withdraw it. In such circumstance the proviso to Section 72(1) would not operate; consequently the title and interest of the landlord would vest in the Government on the appointed day that is; on 1st January 1970, then as per Section 72Q, the land owner would be entitled to recover rent accrued till 1st January 1970 only. The argument of the learned Counsel for the Respondents on the basis of Ext. B-1 thus is not sustainable.

Learned Counsel then contended that, as per the proviso to Sub-section (1) of Section 73 Respondents are entitled to recover the actual amount due. This again is an unsustainable argument. As has noted, the claim in application No. 1128 of 1972 is for recovery of arrears accrued for the period from 1969 to 1972. Section 73(1) provides for scaling down of arrears of rent accrued before 1st May 1968 and outstanding at the commencement of Act 35/1969. The table in Section 73(1) shows that, the quantum of arrears recoverable is proportionate to the area possessed by the tenant, and the proviso to the said sub-section states that, where the tenant is in possession of more than 15 acres of land and the landlord is a small holder the tenant shall be liable to pay the actual amount in arrears. As has noted, the proviso to Sub-section (1) of Section 72 relates to the arrears accrued till 1st May 1968, whereas the claim in the application No. 1128 of 1972 is for recovery of arrears accrued from 1969 to 1972. Hence Sub-section (1) of Section 73 cannot have any application. Alternatively, even if the tenant is treated to be in possession of more than 15 acres of land, since it is not shown that the landlord is a small holder, the proviso cannot have any application. In this connection it will be convenient to read the 3rd proviso to Section 73(1) of the Act.

Provided that where the tenant is in possession of more than fifteen acres of land in the aggregate, whether as owner, mortgagee, lessee or otherwise, and the landlord is a small holder, the tenant shall be liable to pay the actual amount in arrears.

According to the learned Counsel for the Respondent it is enough that the tenant need be in possession of more than 15 acres to bring the case within the scope of the proviso. In other words according to the learned Counsel, the two, conditions that the tenant should be in possession of 15 acres and the landlord should be a small holder need not co-exist for the purpose of the proviso and that either of the said conditions need be satisfied. We are unable to agree with the said argument. For one thing, as per the wording of the said proviso the two conditions have to be read conjunctively and not disjunctively. There is no reason to read the two conditions disjunctively on an interpretation of the proviso assigning the natural meaning with due regard to the object and scheme of the legislation. We find no ambiguity in the said proviso to assign a meaning other than the ordinary meaning. Thus, it is evident that the decision of the lower court in so far as the landlord was allowed to recover arrears of rent accrued beyond 1st January 1970 is not correct; the Respondents evidently are not entitled to any arrears accrued on or after 1st January 1970. To that extent this Civil Revision Petition has to be allowed.

In the result the Civil Revision Petition is allowed and the judgment of the appellate authority is modified to the effect that the landlords/Respondents are allowed to recover arrears of rent accrued up to 1st January 1970 only.