Sivadas vs Subordinate Judge, Tellicherry

Joseph, J

The question for decision is whether an order fixing the fair rent of a holding u/s 16 of the Malabar Tenancy Act should be quashed under Articles 226 and 227 of the Constitution. The petitioner, a tenant, made an application in the Rent Court Tellicherry, for fixing the fair rent of his holding comprising of three items(sic) rent of each item had been fixed in the lease deed. The dispute now relates (sic) fair rent of item No. 3, a garden land 67 cents in extent. The rent for th(sic) was 4 annas per annum under the lease deed. The Rent Court fixed the fair rent at 348 cocoanuts and 667 areca nuts per annum. On appeal, the Subordinate Judge of Tellicherry fixed the fair rent of this item at Rs. 132/- or 348 cocoanuts and 607 areca nuts, whichever was higher.

The main point urged by the petitioner is that item No. 3, being a garden land as defined by the Malabar Tenancy Act, fair rent should have been fixed u/s 9 of the Act. Clauses 5 and 6 of Section 9 provide that the fair rent determined by the Rent Court u/s 16 should not exceed twice the rent payable for the agricultural year 1949-50 and that if such fair rent exceeds the rent for the year 1949-50 the increase should be so spread over so that in no year the rent would be more than 1 1/4 times the rent payable for the previous year. According to the petitioner the enhanced rent should not therefore exceed more than a quarter of the original rent of 4 annas and in no case should it exceed 8 annas. The courts below fixed the fair rent u/s 11 of the Act which relates to lands situated within the limits of any municipality or cantonment. The land in question admittedly is within the municipal limits of Tellicherry and fair rent was rightly fixed u/s 11. Provision has been made in Section 11 for fixing the fair rent of lands falling under two categories namely, (1) those which are not built or planted upon or on which no crop is grown and (2) other lands, i.e., lands which are either built or planted upon or on which crops are grown. The land in question falls under the latter category and fair rent had to be determined u/s 11 clause (b) as was done by the Courts below. Section 11 reads as follows:--

11 (a) In the case of lands situated within the limits of any municipality or cantonment and not built or planted upon, or on which no crop is grown, the fair rent shall be the rent paid or agreed to be paid in respect of similar lands, of the same extent, in the neighbourhood.

(b) In the case of other lands situated within the said limits, the fair rent shall be the fair rent determined under Sections 5 to 10, or the fair rent determined under sub-section (a) of this section, whichever is higher:

(The proviso which is immaterial for the purpose of this petition is omitted).

According to the petitioner the land being a planted area, the fair rent cannot and ought not to be fixed u/s 11(a) which provides only for fixing the fair rent of lands not built or planted upon. What Section 11 (b) really provides is that in the case of lands which are planted upon, the fair rent fixed should not in any case be lower than that of vacant lands within the municipal area. This is what the Courts below have done. Another point was raised in the petition that the fair rent fixed was not based on any evidence. It appears from the records that the basis adopted by the Rent Court as well as the Subordinate Judge was the fair rent fixed for the second item in the lease deed. Learned counsel for the petitioner did not want us to decide this point as he apprehended that a decision on the merits might prejudice (sic) decision of any later application u/s 20 of the Act for revision of (sic)air rent, and we do not therefore express any opinion on the same.

In the result, the original petition is dismissed. The petitioner will pay the (sic)the respondent including counsel''s fee of Rs. 100/-.