Sornathayammal vs Veerana Thevar

P.S. Kailasam, O.C.J.

This petition is filed by the landowner against the order of the Authorised Officer (Land Reforms), Madurai, in T.C.T.P. No. 237 of 1972,

dated 26th April, 1973 allowing the, petition by the tenant (respondent herein) u/s 7 of the Tamil Nadu Act XXI of 1972 and directing restoration

of possession by the landowner to the tenant.

The facts that are necessary for disposal of this revision petition are as follows: The tenant was cultivating 3.31 acres of wet lands belonging to

the landowner. Due to default in payment of rent the landowner filed a petition u/s 3(4)(b) of the Tamil Nadu Cultivating Tenants Protection Act of

1955 and an order of eviction was passed in T.C.T.P. No. 163 of 1970, dated 14th February, 1972. The tenant took the matter up to the High

Court and the High Court in C.M.P. No. 3819 of 1972 pending C.R.P. No. 823 of 1972 ordered interim stay directing the tenant to deposit a

sum of Rs. 5,000 into the trial Court within one month from 6th July, 1972. This deposit was not made within one month of 6th July, 1972 as

directed. After the expiry of the period the landowner filed an eviction petition on 7th August, 1972, stating that the tenant has failed to comply

with the directions of the High Court by paying the amount. The civil revision petition itself was subsequently dismissed on 23rd February, 1973.

On application by the landowner for eviction, notice was issued to the tenant for appearance on 21st August, 1972. Though the tenant

acknowledged the notice, he did not appear for the hearing on 21st August, 1972. The Court in E.P. No. 13 of 1972 in T.C.T.P. No. 163 of

1970 dated 21st August, 1972, ordered the eviction of the tenant and possession was taken over by the landowner on 23rd August, 1972.

Act XXI of 1972 i.e., Tamil Nadu Cultivating Tenants Arrears of Rent (Relief) Act, 1972 came into force on 11th August, 1972. It may be

noted that this was four days after the landowner filed his eviction petition on 7th August, 1972. It is the plea of Mr. Krishnan, the learned Counsel

for the tenant (respondent herein) that the result of the provisions of the Tamil Nadu Act XXI of 1972, is that there is an absolute stay of

proceedings for a period of six months from the; date on which the Act came into force i.e., from 11th August, 1972 and therefore the order of

eviction passed and possession taken by the landowner on 23rd August, 1972 is non est and therefore the delivery of possession will have to be

treated as a nullity.

In order to appreciate the contention it is necessary to examine a few provisions of the Act XXI of 1972. Section 3 of the Act provides certain

relief to the tenant on payment of arrears of rent. All arrears of rent payable by a cultivating tenant to the landlord and outstanding on the 30th June,

1971, shall be deemed to be discharged, whether or not a decree or order has been obtained therefor, if such cultivating tenant satisfies one of the

conditions referred to in the section. We are concerned with Clause (ii) which gives the benefit of the section if the cultivating tenant pays or

deposits in the manner specified in Clause (b) within six, months from the date of the publication of this Act or under Clause (iii) he is deemed to

have paid or deposited under this Act. The effect of the section is that the arrears of rent outstanding on 30th June, 1971 would be deemed to

have been discharged if the condition stipulated in this section is fulfilled. Now under Clause (b) a cultivating tenant may either pay the current rent

to the landlord, or deposit in the Court or before the competent authority to the account of the landlord, the current rent, or if the rent be payable in

kind, its market value on the date of deposit Clause (c) of Section 3 prescribes the procedure for a tenant to make a deposit of the arrears of rent.

When the arrears of Sent is deposited the competent authority shall cause notice of the deposit to be issued to the landlord and determine the

current arrears and direct the cultivating tenant to deposit any further sum as due within the period specified in Clause (a)(ii). If the arrears of rent

are paid as directed within the time referred to, the cultivating tenant shall be deemed to have paid the current rent for the purpose of this Act. So

far as suits or proceedings pending on the date of the publication of the Act for recovery of arrears of rent or for eviction of the cultivating tenant

for non-payment of arrears of rent are concerned it is provided u/s 3(2) that if the cultivating tenant pays or deposits or has paid or deposited, or

is, deemed to have paid or deposited under the Act, the whole of the current rent and if he applies, the authority may pass an, order dismissing the

suit or proceeding, in so far as such suit or proceeding relates to such recovery or eviction. The procedure contemplated for pending suit and

proceeding is therefore that the cultivating tenant should pay the arrears of rent or should have paid or deposited, or be deemed, to have paid or

deposited under the provisions of the Act, and apply to the Court or competent authority to pass an order dismissing the petition for recovery of

rent or for eviction. It may be noted that Section 3(1) as well as (2) enables the cultivating tenant to pay the current rent within six months and get

the arrears of rent discharged. The contention of the learned Counsel that there is absolute stay of all the proceedings is based on Section 5 which

bars certain proceedings for eviction or recovery of arrears of rent. Section 5 of Act XXI of 1972 states as follows:

(1) Until the expiration of a period of six months from the date of the publication of this Act,-

(a) No application shall be made for the eviction of a cultivating tenant for non-payment of any arrears of rent, and no suit shall be filed for the

recovery of such arrears.

(b) No suit shall be filed for the eviction of a cultivating verumpattamdar for non-payment of any arrears of rent.

Under these two clauses in Section 5(1), there is absolute bar of proceedings for eviction or for recovery of arrears of rent within a period of six

months from the date of the publication of the Act, i.e., from 11th August, 1972. But, so far as the present case is concerned, it is, admitted that it

falls u/s 5(1)(c) which runs as follows:

Subject to the provisions of Sub-section (2) of Section 3, all application for the eviction of a activating tenant for non-payment of any arrears of

rent and all suits, proceedings in execution of decrees or orders and other proceedings, pending before a Court or competent authority for the

recovery of any arrears of rent or for such eviction, shall stand stayed.

According to this sub-section there will be stay of all applications for the eviction of a cultivating tenant for non-payment of any arrears of rent

and all suits or proceedings in execution of decree or orders, pending before a Court for the recovery of any arrears of rent or for eviction. These

proceedings will be stayed subject to the provisions of Sub-section (2) to Section 3. Thus in a case like the present one, when an application for

eviction of a cultivating tenant is pending, it is open to the tenant to take advantage of Section 3(2). It the case falls u/s 3(2) there is no absolute

stay u/s 5(1)(c) as Section 5(1)(c) is subject to the provisions of Sub-section (2) of Section 3. Sub-section (2) of Section 3 enables the tenant in a

suit or proceeding pending on the date of the publication of the Act, i.e., on 11th August, 1972, for recovery of arrears of rent or for eviction of the

cultivating tenant, to pay or deposit or to make a deposit which is deemed to be a deposit under the Act, the whole of the current rent and to apply

for dismissal of the petition. In this case, the petition for eviction was filed on 7th August, 1972 and after the Act came into force, the matter was

taken upon 21st August, 1972 arid as the tenant had not paid the money as required or made his appearance, the Court directed delivery of

possession which was taken by the landowner.

A reading of Section 5(1)(c) along with Section 3(2) makes it clear that while all applications and all suits or proceedings are stayed for a period

of six months from the date of the publication, the tenant u/s 3(2) is enabled to pursue his remedies for paying the current rent and getting his

arrears of rent wiped out. Apart from the proceedings contemplated u/s 3(2), all other applications and proceedings are stayed. That means no

further proceedings like execution of the decree for obtaining possession etc., could be taken by the landlord. Therefore the order of the Court

below in the execution petition filed by the landowner on 7th August, 1972 ordering delivery of possession on 31st August, 1972 is contrary to the

statutory stay provided for u/s 5(1)(c) of Act XXI of 1972.

Having found that possession which was delivered after 11th August, 1972 when Act XXI of 1972 came into force, namely, on 23rd August,

1972 is contrary to Section 5(1)(c), the question arises whether the tenant can get back possession which, was taken away from him. Two

petitions were filed by the tenant, one on 7th September, 1972 and another on 6th October, 1972, the former u/s 4(2) and (5) of Act XXV of

1955, and the latter u/s 7 of Act XXI of 1972. The lower Court ordered both the petitions and directed re-delivery of possession to the tenant.

The present civil revision petition is filed by the landowner against that common order.

The point that arises for consideration is whether the order of re-delivery passed by the lower Court is sustainable in law. So far as the right of

the Court to direct re-delivery u/s 7 of Act XXI of 1972 is concerned, that section limits the power of re-delivery only to cultivating tenants who

have been evicted from any land on or after the 1st March, 1972 and before the date of the publication of Act XXI of 1972, that is 11th August,

1972. The dispossession in this case, being on 23rd August, 1972 this section will not be applicable and therefore the petition under this section

will have to be dismissed.

The petition under Sections 4(1) and (5) of Act XXV of 1955 has to be dealt with Section 4(1) of that Act provides that every cultivating

tenant who was it possession of any land on 1st December, 1953 and who is not in possession thereof at the commencement of that ''Act,'' this is

on 24th September, 1955, will be entitled to be restored to such possession. This sub-section is not applicable as dispossession was not during the

relevant period contemplated under this section. The only provision therefore left for the tenant is Section 4(5) of Act XXV of 1955, which

provides as follows:

Any cultivating tenant who after the Commencement of this Act has been evicted except under the provisions of Sub-section (4) of Section 3 shall

be entitled to apply to the Revenue Divisional Officer within two months from the date of such eviction or within two months from the coming into

force of the Madras Cultivating Tenants Pro-lection (Amendment) Act, 1956, for the restoration to him of the possession of the lands from which

he was evicted and to hold them with all the rights and subject to all the liabilities of a cultivating tenant.

The benefit of being restored to possession is available to persons who have been dispossessed except under the provisions of Sub-section (4) of

Section 3. It is not denied that the tenant was dispossessed u/s 3(4). The landowner applied for eviction of the tenant on the ground of non-

payment of rent and the order of eviction became final. The contention for the tenant is that though the order became final, the order directing

delivery of possession was made on 21st August, 1972 when there was a statutory slay of proceedings in execution u/s 5(1)(c) of the Act and that

therefore the eviction order is not in accordance with Section 3(4) of Act XXV of 1955. It cannot be disputed that the order of eviction was

strictly according to Section 3(4). The remedy provided u/s 4(5) is that the tenant would be entitled to redelivery of possession if he had been

evicted except under the provisions of Section 3(4). As already stated, the order of eviction was u/s 3(4) but dispossession was not in accordance

with Section 5(1)(c) of Act XXI of 1972. It does not appear that the section contemplated cases of persons who would be dispossessed contrary

to the provisions of Section 5(1)(c). There is no breach of the order of eviction u/s 3(4). It is submitted by the learned Counsel for the tenant that

as possession was granted contrary to Section 5(1)(c), the order of delivery of possession should be treated as non est and the tenant should be

put back in possession. It is not possible to treat the order as non est for in pursuance Of the order, the landowner was put in possession and she

is in fact in possession. There are no provisions in the Act which would enable the tenant to get back possession. It is not possible to accept the

tenant''s contention that Section 4(5) of Act XXV of 1955 would give him such a remedy. Unless such a remedy is specifically provided for in the

enactment, the tenant cannot have any remedy.

Finally, the learned Counsel for the tenant submitted that as per Section 6-BB of Act XXV of 1955, which was introduced by Act VI of 1974,

this Court has ample powers to restore possession to the tenant. That section provides that where any cultivating tenant has been evicted in

execution of an order for eviction passed under Sub-section (4) of Section 3, and where such order of eviction is set aside in revision by the High

Court, the High Court shall direct restoration to such cultivating tenant of the possession of lands from which he was evicted. In this case, the

cultivating tenant was evicted in execution of an order passed under Sub-section (4) of Section 3. The order of eviction has not been, set aside by

the High Court. In fact, the order of eviction was confirmed by the High Court in prior proceedings. The finding that delivery of possession is

contrary to the statutory stay u/s 5(1)(c) of Act XXI of 1972 would not bring the case u/s 6-BB of Act XXV of 1955 and the power of revision

cannot be exercised by this Court to direct delivery of possession by the landowner.

The result is, the landowner''s petition for revising the order of the lower Court is allowed and she is directed to be put back in possession by

the tenant. Time for delivery of possession is three months from this date. There will be no order as to costs.