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1960 DIGILAW 378 (KER)

Damodaran Nair v. Travancore Devaswom Board

1960-09-15

S.VELU PILLAI

body1960
JUDGMENT S. Velu Pillai, J. 1. This is to quash a demand, evidenced by Ext. P. 1, made by the third respondent, the Tahsildar, Thodupuzha, under Section 24 of the Travancore-Cochin Revenue Recovery Act, 1951, which may be referred to briefly as the Revenue Recovery Act. The demand was for the sum of Rs. 3,546. 11, which, it was stated, represented arrears of rent, which had accrued due to the first J respondent, which is the Travancore Devaswom Board, in respect of a leasehold in the possession of the petitioner. Section 45 of the Travancore-Cochin Hindu Religious Institutions Act, 1950, which may be referred to briefly as Act XV of 1950, has provided, that in the cases specified therein, "the rents and other dues of any Hindu Religious Endowment may be collected as arrears of public revenue under the provisions of the Revenue Recovery Act for the time being in force". It may be taken, that the demand covers in part, arrears of rent which had accrued prior to the commencement of the Kerala Slay of Eviction Proceedings Ordinance, 1957, and which, it was contended for the petitioner, is not legally recoverable, by reason of Section 4 of the Kerala Stay of Eviction Proceedings Act, 1957, which may be referred to briefly as Act I of 1957, the provisions of the Revenue Recovery Act being of no avail, notwithstanding Section 45 of Act XV of 1950. In other words, the contention was, that a landlord being precluded by Section 4 of the Act I of 1957 from instituting a suit or other proceeding for the recovery of rent accrued due to him before the commencement of the aforesaid Ordinance, or from continuing any pending suit or other proceeding, in a Court, such rent had ceased to be legally recoverable. It seems to me, on a reading of ' Section 45 of Act XV of 1950 and Section 4 of Act I of 1957, that this contention is palpably unsustainable. It may be, as contended by the learned counsel for the petitioner, that Section 45 of Act XV of 1950 has prescribed only a procedure for the realisation of arrears of rent, but then, it is a procedure, additional or alternative to, the ordinary procedure under the Civil Procedure Code for such realisation, by obtaining a decree and executing it. It may be, as contended by the learned counsel for the petitioner, that Section 45 of Act XV of 1950 has prescribed only a procedure for the realisation of arrears of rent, but then, it is a procedure, additional or alternative to, the ordinary procedure under the Civil Procedure Code for such realisation, by obtaining a decree and executing it. Section 4 of Act I of 1957 does not purport to touch substantive rights of parties, and creates a bar, only to the institution of suits or proceedings and to their prosecution in a Court and nowhere else. It was not contended, that a Tahsildar functioning under the Revenue Recovery Act, is a Court within the meaning of Section 4 of Act I of 1957. This provision, far from depriving the landlord of his right to such arrears, leaves untouched his right to realise the same in any other mode sanctioned by law. If there is such a mode, which is not hit by the bar under Section 4 of Act I of 1957, as through the machinery provided by the Revenue Recovery Act, the arrears do not cease to be legally recoverable. 2. The learned counsel invited my attention to the decision of the Travancore-Cochin High Court in P. C. Vareed v. Gopalbai Bahubai Patel Rambai Gopalbai Patel, ( 1954 KLT 188 ) in support of the position, that immunity from civil process is a vested right. That case has nothing to do with the present, In that case, under the Cochin Civil Procedure Code, the Coimbatore Court was a foreign Court, whose judgment was not conclusive and could not be executed in the former Cochin State, until by the Amendment Act (Central Act II of 1951) the Code of Civil Procedure, 1908, came into force in that area on April 1, 1951. The question arose, whether by reason of Section 20 of the Amendment Act, the right of the judgment debtor in a decree passed by the Coimbatore Court to object to its execution in the Cochin Court, which was available to him under the Cochin Civil Procedure Code, was saved ; the full bench held in the case cited, that such a right was a vested right, and was saved. On account of this immunity from execution, the learned counsel for the petitioner here contended, that no right itself subsisted under the decree. On account of this immunity from execution, the learned counsel for the petitioner here contended, that no right itself subsisted under the decree. This was so, for the reason, that the judgment of the Coimbatore Court was a nullity under the provisions of the Cochin Civil Procedure Code. I am not confronted with such a situation, and no such situation can be envisaged under Section 4 of Act I of 1957, the immunity under which to the tenant, is only partial and temporary, from proceedings in a Court, either pending or prospective, for the realisation of accrued rent. This did not deprive the landlord of his right to the amount, or his right to recover it in other ways sanctioned by law. It may also be noted, that in respect of pending proceedings, the operation of Section 4 of Act I of 1957 is only to impose a stay for a period of time ; this too, is not without significance. 3. The learned counsel mentioned by way of analogy, that rent may cease to be legally recoverable under the law of limitation and that it is inconceivable, that such rent could be recovered through coercive process under the Revenue Recovery Act. In my view, there is really no analogy, for, by the operation of the law of limitation such rent is not legally recoverable. The question of limitation does not directly arise in this case, as it was not contended for the petitioner, that any part of the claim covered by Ext. P. 1 is barred by limitation. If he has any such objection, it is only necessary to raise it under section 24(3) of the Revenue Recovery Act. For the foregoing reasons, I am unhesitatingly of the view, that the remedy under the Revenue Recovery Act for the realisation of arrears of rent is not lost by anything in Act I of 1957. 4. The next contention is, that the notice of demand purporting to have been issued under Section 24 read with Section 7 of the Revenue Recovery Act, does not comply with the terms of Section 24 and is therefore illegal. 4. The next contention is, that the notice of demand purporting to have been issued under Section 24 read with Section 7 of the Revenue Recovery Act, does not comply with the terms of Section 24 and is therefore illegal. Section 24(1) of the Revenue Recovery Act provides, that a written demand "shall be served on the defaulter specifying the amount of revenue due with interest, the land in respect of which it is claimed, and the date when it fell due, the batta due to the person who shall serve the demand and the time allowed for the payment". Of these, the only specifications which are wanting in Ext. P. 1 are, those relating, to the land for which arrears of rent are claimed, and to the date when the rent accrued. In support of his argument, the learned counsel relied on the decision of the Travancore-Cochin High Court in Eravi Pillai Krishna Pillai v Maluk Mohammed Sahul Hameed (1953 KLT 802 at 834, paragraph 43). In that case, the Court was concerned with the failure to publish a notice of attachment under Section 24 of the Revenue Recovery Act and it reached the conclusion, that such failure was fatal to the proceedings. Incidentally, the following observations were made in paragraph 43 of the judgment:-- "It will thus be seen that in order to satisfy the requirements of the section it is necessary that the notice should 'in all material particulars comply with the provisions' of the sections as held by their Lordships of the Privy Council in 20 Calcutta 86. In other words, the provision of the section relating to the particulars of the notice must be strictly complied with, subject, of course, to the maxim de minimus noncurat lex." The learned counsel urged, that the omission to specify the date on which the rent accrued, was material, as he was disabled thereby from deciding for himself, whether any part of the claim was barred by limitation or not. It was quite easy for the petitioner to decide, whether any part of the claim is barred by limitation or not, and was open to him to urge his objections under Section 24(3) of the Revenue Recovery Act. It was quite easy for the petitioner to decide, whether any part of the claim is barred by limitation or not, and was open to him to urge his objections under Section 24(3) of the Revenue Recovery Act. The test propounded by the Privy Council in 20 Calcutta 86, to which reference was made in the above extract from the judgment was that the notice shall put all parties concerned in saving the tenure from sale, in possession of the knowledge of what really they will have to do, if they desire to save the tenure". Applying this test, I hold that the two omissions in the notice are not so material, as to render it illegal or void. I therefore hold that the notice of demand Ext. P. 1, cannot be impugned. 5. The third contention was, that Section 45 of Act XV of 1950 is invalid, conferring as it does, an arbitrary power, on the Authority to initiate proceedings under the Revenue Recovery Act. The learned counsel has not succeeded in substantiating this contention, and the decision in Govindan Nair v Secretary, Cochin Devaswom Board ( 1957 KLT 697 = 1957 KLJ 652 ) furnishes a complete answer to it. The learned counsel had nothing to say against this decision. I therefore overrule the same. 6. It follows, that the petition must fail; it is dismissed accordingly. In the nature of the contentions raised, I order that the petitioner do pay the costs of the first respondent, including advocate's fee Rs. 100/-.