Sambandam vs The District Revenue Officer, (Land Tribunal), Thanjavur and Others

Swamikkannu, J.—The petitioners in all these three petitions have a common contention to raise. As a matter of fact, the very same contention as has now been raised was raised before the appellate authority, viz., the District Revenue Officer in the connected appeals filed by the petitioners against the order of the Authorised Officer. Now these writ petitions have been preferred against the orders of the appellate authority, viz., the District Revenue Officer. The point argued on behalf of the petitioners is that if R.5 of the Tamil Nadu Land Reforms (Disposal of Surplus Land) Rules, 1965 as amended by G.O.Ms.No.715, Revenue, dated 24.3.1980 had not been applied to the case of the petitioners, they would have been allotted more extensive lands than those which have been allotted as per the amended rule, since all of them have applied for assignment even on 10.5.1979. As a matter of fact, the said Rule as it stood before the amendment, read as follows: "5. Eligibility for assignment of surplus land and the maximum extent to be assigned:--

The following persons and societies shall be eligible for assignment of surplus land and shall be entitled to preference, in the order given below:--

(i) A person who is completely dispossessed of his holding, by virtue of the provisions of the Act.

(ii) A person whose extent of holding is reduced below three standard acres held by him partly as cultivating tenant and partly as owner or wholly as cultivating tenant, by virtue, of the provisions of the Act.

(iii) A person who is, or who has been a member of the Armed Forces.

(iv) A Co-operative farming society, the members of which are landless agricultural labourers or landless persons or a combination of both:--

Provided that the extent of land assigned to the society, together with the land, if any, already held by the society, does not exceed the ceiling area of such society.

(v) A landless agricultural labourer, who is likely to engage himself in direct cultivation.

(vi) A landless person, who is likely to engage himself in direct cultivation.

(vii) A cultivating tenant who is holding land which is less than five standard acres in extent.

The total extent of land that may be assigned to any person referred to in clauses (i), (ii), (iii), (v), (vi), and (vii), together with the extent of other land, if any, already held by such person, or if such person is a member of a family by such family, shall not exceed five standard acres".

Now. after the amendment, the said rule reads as follows:--

R.5.(1) The following persons and societies shall be eligible for assignment of surplus land and shall fee entitled to preference in the order given below.--

(i) A person who has been cultivating the land as on the date of the commencement of the Act and who is completely dispossessed of the land which is declared as surplus as a result of the provisions of the Act:--

Provided that the person should not have surrendered the lands subsequent to the date of the commencement of the Act.

(ii) Omitted by G.O.Ms.No 1358; Revenue, dated 21.6.1979.

(iii) A person whose extent of holding is reduced below three acres of dry land or one and a half acres of wet land held by him partly as cultivating tenant and partly as owner or wholly as cultivating tenant by virtue of the provisions of the Act;

(iv) A landless agricultural labourer belonging to Scheduled Caste or Scheduled Tribe who contributes his own physical labour or that of any member of his family in the cultivation of the land.

(v) A person who is or who has been a member of the Armed Forces including persons who had served in the Indian National Army or the Ex-Assam Rifles Personnel or any para-military force and members of Armed Forces, who retired or were disbanded before the 26th January, 1950 and dependants of the persons of the abovementioned categories, killed in action namely, wife, widowed mother, minor sons and minor daughters. The servicemen not killed in action but disabled and alive, can get surplus lands in their own name.

(v-A).Omitted).

(vi) A landless agricultural labourer other than the landless agricultural labourer referred to in clause (iv) who contributes his own physical labour or that of any member of his family in the cultivation of the land;

(vii) A cultivating tenant who is holding land which is less than three acres of dry land or one and a half acres of wet land in extent;

(viii) and (ix) omitted.

The total extent of land that may be assigned to any person referred to in clauses (i) to (vii) of sub-rule (1) together with the extent of other land, if any already held by such person or if such person is a member of a family, by such family, shall not exceed three acres of dry land or one and a half acres of wet land. We are concerned only with the question whether it is the old R.5 as it existed prior to the amendment dated 24.3.1980 that is to be applied to the facts of these cases, or whether, as contended by the State, it is R.5 as amended by G.O.Ms.No.5267, Revenue, dated 29.8.1975 and by G.O.Ms. No.715, Revenue, dated 24.3.1980, that alone is to be applied, though the applications for assignment have been made by the petitioners even as early as on 10.5.1979.

Mr. R.S. Venkatachari, learned counsel for the petitioners, contends that it is only the Rule that existed on the date of the applications by the petitioners that should be applied and not the Rule as it stood amended as on the date on which the applications were disposed of. In support of this contention, he relies on the decision in Sri-La-Sri Sivashanmugha Arumugha Meignana Sivachariar, Tirupapuliyur by Power of Attorney Agent Somasundira Iyer v. S. Subramanian and another, S.A. No.940 of 1978 dt. November 11, 1981 since reported in 1984-1-M.L.J. 106 as well as the decision in Punjab Tin Supply Co., Chandigarh and Others Vs. Central Government and Others,

Mr. P. Samuel, the learned Government Advocate, relies on the decision in State of Tamil Nadu Vs. Hind Stone and Others, and refers to the observations in paragraph 13 of the said judgment, which run as under: Another submission of the learned counsel in connection with the consideration of applications for renewal was that applications made sixty days or more before the date of G.O.Ms.No.1312 (2.12.1977) should be dealt with as if R.8 C had not come into force. The submission was that it was not open to the Government, to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of R. 8C notwithstanding the fact that the applications had been made long prior to the date on which R.8C came into force. While it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have the application disposed of on the basis of the rules in force at the time of the making of the application. None has a vested right to the grant or renewal of a lease and none can claim a vested right to have an application for the grant or renewal of a lease dealt with in a peculiar way, by applying particular provisions. In the absence of any vested rights in anyone, an application for a tease has necessarily to be dealt with according to the rules in force on the date of the disposal of the application despite the fact that there is a long delay since the making of the application. We are, therefore, unable to accept the submission of the learned counsel that applications for the grant of renewal of lease made long prior to the date of G.O.Ms.1312 should be dealt with as if R.8C did not exist.

It may be noted that the very same contention, which is raised here, was also raised before the appellate authority, viz., the District Revenue Officer, and the same is found incorporated in the appellate order as follows, in A.P.D.S-L.No. 84/1980:--

The learned counsel for the appellant contended that the recent amendment to R.5(2) reducing the maximum extent that may be assigned in favour of a person from 5 standard acres to 11/2 acres of wet land or 3 acres of dry land came in to force only on 24.3.1980. Whereas the enquiry under the rules was completed as early as on 3.10.1979 and 7.12.1979 in the present case. This amendment has no retrospective effect as no provision has been made to that effect and also it will not deprive the persons who have been assigned surplus lands upto 5 standard acres as per the rules then prevailed. A procedural rule cannot be retrospective but can only be prospective in the absence of specific mention to that effect. Hence, for all the pending cases for which form B notice was already published and the enquiry was duly completed prior to this amendment to the rule, the present amendment will not be applicable. He further stressed that by just delaying the passing of final order, the vested rights of the appellant cannot be divested. He further contended that the present amendment to the rule will be applicable only to the surplus lands notified and taken possession on and after the date of this amendment, i.e., 24.3.1980, and for all the lands which were declared as surplus prior to the date of this amendment will be governed by the rules then prevailed which permitted the applicant to get assignment upto 5 standard acres.

This contention had been disposed of by the learned appellate authority by saying:-

I disagree with this contention of the learned counsel for the appellant for the following reasons: The Government is empowered to modify or amend the rules under S.94(b) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 58/61. The Government have decided that the maximum extent of the surplus lands to be assigned to an eligible person should be reduced from the existing 5 standard acres to 3 ordinary acres of dry land or 11/2 acres of wet land, and amended the rule suitably to give effect to this proposal with a view to enable a large number of persons to be benefited by assignment of surplus land taken over under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act 58/61. Accordingly, the rules were amended as per G.O.Ms. No.715, Rev., dated 24.3.1980. Necessary amendment to S.94(2) (a) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act 58/61 having also been made by Act 11/80 substituting the words ''three acres of dry land or 11/2 acres of wet land'' in the place of ''3 standard acres''. As such, this amendment to the rules is not in any way conflicting with the provision enshrined under S.94(2) of the Act.

In second Appeal No.940 of 1978, which was disposed of on 11th November 1981, this Court has specifically held that a Government Order cannot have retrospective effect unless it contains a specific clause therein to the effect that it would have retrospective effect. In the absence of such a clause, the rule which is in force as on the date of the application has to be applied to the case of the petitioners, and not any subsequent rule as amended by a subsequent G.O., whether it be either to the advantage or disadvantage of the petitioners. It is stated on behalf of the State that these petitioners do not have any vested right and as such, they cannot have any complaint, especially when the State has modified the rule by means of a G.O. in order to achieve the objects incorporated in Part IV of the Constitution, viz., ''the directive principles of the State Policy''. In this case, we are concerned only as to whether it is R.5 as it existed on the date of the applications, or the Rule as amended and was in force at the time of the consideration of the applications, that has to be applied to the case of the petitioners. For this question, we have the answer only in the decision of the Supreme Court in Punjab Tin Supply Co., Chandigarh and Others Vs. Central Government and Others, , wherein the Supreme Court has observed in paragraph 12 of the judgment as follows-:--

The preamble and the provisions of a statute no doubt assist the Court in finding out its object and policy, but its object and policy need not always be strictly confined to its preamble and the provisions contained therein. The object and policy of the Act which is now before us appears to be slightly wider than some of the key provisions of the Act namely fixation of fair rent and prevention of unreasonable eviction of tenants. The acute problem of shortage of urban housing, as we all know, has become a permanent feature throughout India. It is on account of the shortage of the number of houses in urban areas, the landlords get an opportunity to exploit tenants who are in need of housing accommodation by compelling them to enter into unconscionable bargains. The Act is passed as one of the measures taken to mitigate the hardship caused to the tenants. The policy and object of the Act generally is mitigation of the hardship of tenants, such mitigation can be attained by several measures, one of them being creation of incentive to persons with capital who are otherwise reluctant to invest in the construction of new buildings in view of the chilling effect of the rent control laws. As a part of the said scheme, in order to persuade them to invest in the construction of new buildings exemption is granted to them from the operation of the Act for a short period of five years so that whatever may be the hardship for the time being to the tenants of the new buildings, the new buildings so constructed may, after the expiry of the period of exemption, be available for the pool of housing accommodation controlled by the Act. The impugned notification is not, therefore, ultra vires S.3 of the Act.

In dealing with the exemption granted by the Home Department on 31.1.1973 in that case, the Supreme Court observed in paragraph 23 of its judgment as follows:-

On a careful consideration of the question, we feel that the benefit of the notification cannot be extended to building which were given the sewerage connection or which were occupied, as the case may be, prior to January, 31, 1973. Those buildings are governed by the provisions of the Act and any decrees passed in respect of them are governed by S.13 of the Act. The Notification applies only to those buildings which are given sewerage connection or electric connection or which are occupied as the case may be on or after January 31, 1973.

With respect to retrospective effect, the Supreme Court has also observed as follows in paragraph 17 of the Judgment:--

All laws which affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. If the language is clear and unambiguous, effect will have to be given to the provision in question in accordance with its tenor.

Faithfully following the ratio decidendi in the above decision, we find that it is only R. 5. as it existed on the date of the applications filed by the petitioners that should govern the procedure relating to the assignment of the land. In this regard, it is also submitted by the learned counsel for the petitioners that the petitioners in all these three cases are registered as cultivating tenants, and as such they could not have been evicted even by the landlords. Now that, by virtue of the amendment effected on 24.3.1980 to this Rule, the petitioners are deprived of their right of enjoyment of the lands which they have by virtue of their being conferred the rights of cultivating tenants, they are entitled to the relief sought for. In support of this contention, Mr. R.S. Venkatachari, learned counsel also relied on the decisions in Mahadeolal v. Administrator-General of W.B., and Ranjit v. Mohitosh . In the instant case, we are concerned only about the interpretation of R.5 and its effect and the character of the same, as to whether it is retrospective or prospective in effect. The appellate authority, in this case, has only applied R.5 as it stood amended by means of G.O.Ms.No.715, Revenue, dated 24.3.1980, especially when the applications were made even on 10.5.1979. The rule that is actually applicable is the one as it stood before the amendment, i.e., as on 10.5.1979, the principles of which ought to have been applied in disposing of the applications.

For the above reasons, this court is of the opinion that all three writ petitions have to be allowed and the authorities concerned have necessarily to be directed to follow R.5 as it existed on the date of the applications, viz. 10.5.1979 and proceed with the matter and dispose of the petitions before them in accordance with law. A direction to the above effect is given by this Court and this direction has to be carried on and complied with within two months from this date. The writ petitions are allowed in the above terms. There will be no order as to costs.