Research › Browse › Judgment

Kerala High Court · body

1970 DIGILAW 245 (KER)

MADHAVAN v. RAMASWAMY CHETTIAR

1970-11-11

K.SADASIVAN

body1970
Judgment :- 1. The tenant is the revision petitioner. He applied for fixation of fair rent and the fair rent was fixed by the Land Tribunal which was modified in appeal by the appellate authority. It is against the judgment of the appellate authority that he has come up in revision. The first point argued is as to the date from which the order fixing fair rent is to take effect. According to the tenant the order should take effect from 1-4-61, which was accepted by the Land Tribunal. The learned appellate authority in modification of the order of the Land Tribunal has fixed 6-7-65 as the date from which the order fixing fair rent should take effect. This date, namely 6-7-65 was the date on which the application for fixation of fair rent was presented by the petitioner. The contention of the tenant is that the application was filed by him as early as on 27-1-62, that is under Act 4/61 and under S.132(4) (ii) (a) of Act 1/64, all applications for determination of fair rent, filed or purported to have been filed under the previous Act, viz., Act 4/61 shall be deemed to have been filed under the latter Act, Act 1/64 and are to be disposed of according to the provisions of the latter Act. S.132(4)(ii) (a) reads:- (a) all applications for determination of fair rent filed or purported to have been filed under the said Act, in which no order determining the fair rent had been passed by the Land Tribunal shall be deemed to have been filed under this Act and shall be disposed of according to the provisions of this Act." For this section to come into play, two conditions are necessary. They are: (i) the application must have been filed under Act 4/61 or purported to have been filed under that Act; and (ii) no order must have been passed on the application. In other words, the application filed under Act 4/61 must be pending at the commencement of Act 1/64 on the file of the Tribunal. But in the present case, the application filed by the tenant on 27-1-62 was returned to him by the court asking for clarification as to its maintainability. In other words, the application filed under Act 4/61 must be pending at the commencement of Act 1/64 on the file of the Tribunal. But in the present case, the application filed by the tenant on 27-1-62 was returned to him by the court asking for clarification as to its maintainability. An injunction order issued from the High Court from O. P. 2124/61 restraining the Land Tribunal from entertaining the application for determination of fair rent in respect of properties of the devaswam (the present property is also a devaswam property) was pending at the time and that is the reason why the clarification was called for, from the tenant as to how the petition could be maintained. The tenant took away the application and did not re-present it, even after coming into force of Act 1/64. Act 1/64 came into force on 1-1-64. The argument that because of the pendency of Act 7/63 which came into force following the striking down of Act 4/61, the tenant was prevented from filing his application is not open to him since Act 7/63 was only a temporary measure and the staying of proceedings contemplated in S.2 of that Act was in force only till 1-1-64, that is the date on which Act 1/64 came into force. S.132 (1) (a) of Act 1/64 would show that Act 7/63 was repealed and it ceased to be in effect from 1-1-64. The field was, therefore, clear for the tenant to present his application from 1-1-64. But that opportunity was not availed of by him and the petition was filed by him only on 7-7-65. The interval was 1 year, 6 months' and 6 days and during this period there was no impediment in his way preventing him from filing the application. As already indicated, the benefit of S.132 (4) (ii) (a) can be availed of only by a tenant who had filed his application under Act, 4/61 and on which no orders had been passed by the Land Tribunal. The word 'filed' means delivered to the proper officer and by him received to be kept on file (vide Ramanatha Iyer's Law Lexicon at p. 442). The word 'filed' means delivered to the proper officer and by him received to be kept on file (vide Ramanatha Iyer's Law Lexicon at p. 442). Wharton's Law Lexicon defines "file" as 'filed in the more safe keeping of and ready reference to; to deposit it at an office.' That carries with it the idea of permanent preservation becoming part of the permanent records of the public office where it is kept and includes the idea that the paper is to remain in its proper order on the file in the office vide Bergeron v, Holts -- 65 Am. St. Rep. 85). The decision in Krishna Bhatta v. Choma Banta (1966 KLT. 823) relied on by the learned counsel for the tenant cannot help him in the present case. That decision can help only those tenants whose application had been filed under Act 4/61 and pending on the file undisposed, at the time Act 1/64 came into force. The learned judge observed in that case:-"If fair rent had been fixed when Act 4 of 1961 was supposed to have been in operation and that is final for the purpose of fair rent under Act 1/64 and if in such a case a tenant was entitled to have the fair rent fixed from the date of petition for fixation of fair rent, I see no reason why the legislature should make a distinction in the case of a tenant whose application has not been disposed of under that Act for no fault of his. S.132 (4) (ii) (a) says that such an application shall be deemed to have been filed under the present Act, the legal effect of which is that the relevant provisions of the present Act should be deemed to have been in force at the time the application was filed by virtue of the legislative fiction and the application should be disposed of by fixing the fair rent as payable from the date of the application," The legislative fiction contemplated in S.132 (4) (ii) (a) can apply only to tenants who had filed their applications under Act 4/61 and which remained on the file of the court undisposed. Such a contingency does not arise in the present case and, therefore, the contention that his application filed on 6-7-65 should be deemed to have been filed on an antecedent date so as to take effect from the agricultural year starting from 1-4-61 is not open to the petitioner. The order of the appellate authority in this regard is correct. About the extent of the property, it was argued that the appellate authority has calculated fair rent in respect of 45 cents in excess of what was calculated by the Land Tribunal. This is not correct. The Commissioner appointed in the case reported the correct extent of the property (R. S.915 as one acre and 61 cents). This report was accepted by the Land Tribunal; but is dealing with the extent the Land Tribunal by mistake noted the extent as 1 acre and 16 cents, instead of 1 acre and 61 cents. So, in fact, no excess area has been taken into consideration by the appellate authority. What is taken into consideration is only the area which the survey number possessed in fact. The calculation is, therefore, correct. About the yield also the calculation of the appellate authority is correct except in respect of coconuts. In Schedule III of the Land Reforms Act (amended by Act 35/69), under item 2 (ii), in the case of coconuts, the fair rent will be 1/4th of the gross coconut produce. But the appellate authority has calculated at 1/3rd, which is the old rate. This is a mistake. The gross produce is shown as 850, and 1/4th of this will be 213 as found by the Tribunal. In other respects, that is, in respect of the paddy and the money, the finding of the appellate authority is correct. In the result, the order of the appellate authority is confirmed except as regards coconuts, which will be 1/4th of 850, i. e., 213 and not 1/3rd as found by the appellate authority. The civil revision petition will stand dismissed, subject to the above modification regarding the yield of coconuts.