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1978 DIGILAW 165 (MAD)

P. Srinivasa Thevar v. S. Rajam Iyer

1978-02-27

S.NAINAR SUNDARAM

body1978
ORDER.-The defendant in O.S.No. 300 of 1970 on the file of the Principal District Munsif of Thiruthuraipoondi, is the petitioner. The respondent herein, is the plaintiff in that suit. The defendant filed an application E.A.No. 96 of 1974 under the provisions of the Tamil Nadu Act IV of 1938 as amended by the Tamil Nadu Act VIII of 1973 (hereinafter referred to as the Act), to stay the execution proceedings in the above suit on the ground that he is an agriculturist entitled to the benefits of the above Act. The plaintiff contested the application on the main ground that the defendant has been assessed to property tax and he will be hit by the proviso C to section 3 (ii) of the Act in that he has been assessed to property tax on the aggregate annual rental value of Rs. 1,200 per year. It is found on the basis of the kist receipts produced by the defendant and which was not disputed by the plaintiff that the defendant is an agriculturist. The attempt to bring the defendant within the mischief of the proviso referred to above, has been sustained by the First Court and the petition filed by the defendant was dismissed. It must be pointed out that the District Munsif took into consideration the records from the house tax demand register relating to the defendant. 2. The defendant filed an appeal C.M.A No. 29 of 1974 which was heard and disposed of by the District Judge, East Thanjavur at Nagapattinam by judgment and decree dated the 5th day of November, 1974. The appellate Court concurred with the First Court and dismissed the appeal. The present revision is directed against the judgment and decree of the appellate Court. 3. Shri R.N. Kothandaraman, learned counsel for the petitioner, submits that out of the two grounds put against the defendant by the appellate Court the 2nd ground rests purely on technical basis in that the appellate Court has chosen to discountenance the petition filed by the defendant on the ground that instead of quoting section 20 of the Act, section 19 of the Act is quoted. I have looked into the original petition filed in E.A. No. 96 of 1974 and I find that the prayer is one for stay though the provision quoted is section 19. I have looked into the original petition filed in E.A. No. 96 of 1974 and I find that the prayer is one for stay though the provision quoted is section 19. This is an omission to quote the correct provision, but the prayer is clear and hence, the petition must be construed as one under section 20 of the Act. No such difficulty was experienced by the 1st Court and it dealt with the application only as one under section 20 of the Act. 4. Shri R.N. Kothandaraman, learned counsel for the petitioner, would further contend that the records from the house tax demand register which have been marked in the appellate Court as Exhibits C-1 and C-2, do not make out that the aggregate annual rent of such property is not less than Rs. 1,200. Ex. C-1 which appears to be an extract from the house tax demand register, relates to the years 1970-71 and 1971-72. The actual house tax levied is Rs. 20 and there is no column relating to annual value or annual rental value. Ex.C-2 relates to the years 1970-71, 1971-72 and 1972-73. The taxes for those years are indicated. With reference to annual rental value, I find that it varies for the different years between Rs.180 to Rs. 600. They relate to four door nos., viz., 2-A, 2-B, 2-C and 2-D. For 2-A the annual rental value is shown at Rs. 270 ; for 2-B the annul rental value is shown at Rs.270; for 2-C for the year 1970-71 the annual rental value is shown at Rs.420 ; for the very same premises 2-C, for the years 1971-72 and 1972-73 the annual rental value is shown at Rs.600 ; and for 2-D for the year 1972-73 the annual rental value is shown at Rs. 180 ; This document Ex.C-2 cannot be said to an extract from the house tax demand register as presumed by the Courts below and I find, it is in the form of a certificate issued by the Thiruthuraipoondi Panchayat, dated 27th March, 1973. 5. 180 ; This document Ex.C-2 cannot be said to an extract from the house tax demand register as presumed by the Courts below and I find, it is in the form of a certificate issued by the Thiruthuraipoondi Panchayat, dated 27th March, 1973. 5. Proviso 6 to section 3 (ii) of the Act shows that a person shall be deemed to be an “ agriculturist”, if he has, in all the four half years immediately preceding the 1st March, 1972 been assessed to property or house tax in respect of building or lands other than agricultural lands under the Tamil Nadu District Municipality Act, 1920 (Tamil Nadu Act II of 1920)..............provided that the aggregate annual rental value of such buildings and lands whether let out or not or in the occupation of the owner is not less than Rs. 1,200. To attract clause C of the proviso to section 3 (ii) of the Act, the assessment must have been made in all the four half years immediately preceding the 1st March, 1972, and the aggregate annual rental value must be not less than Rs. 1,200 in all the four half years. In the Act as it stood prior to the Madras Agriculturists Relief (Amendment) Act XXIII of 1948, the expression used in proviso C to section 3 (ii) was “ has within the two years immediately preceding”. For these sets of expressions, the following expressions have been substituted by the said Amendment Act XXIII of 1948, namely, “as in all the four half years immediately preceding”. While construing the implications of the expressions, “ as within the two years immediately preceding”, a Division Bench consisting of Wadsworth and Patan jali Sastri, JJ, in Pothukuchi Venkata Ramanayya and others v. Daggubati Mallikharjanudu1, repelled the contention that the assessment must be throughout the period of two years specified in the proviso. The learned Judges observed as follows-: “ This seems to us to be against the plain language of the proviso which does not use the word ‘throughout’, but uses the word ‘within’. If at any point of time within the period the disqualification has been incurred, it will satisfy the terms of the proviso.” 6. The learned Judges observed as follows-: “ This seems to us to be against the plain language of the proviso which does not use the word ‘throughout’, but uses the word ‘within’. If at any point of time within the period the disqualification has been incurred, it will satisfy the terms of the proviso.” 6. The same view was also taken earlier by King, J., in Gandikota Kamanna v. Tondapu Satti Reddy2 and the learned Judge held:- “ It is quite clear from the language of section 3 (ii), proviso B of Act IV of 1938 that assessment for four consecutive half years from October, 1935 to September, 1937, is not required, as, if that were so, the word ‘throughout’ would be found in the place of the word ‘within”. 7. The substitution of the expressions by the Amendment Act XXIII of 1948, has got significance in the sense, the assessment must be in all the four half years or in other words in each of the four half years immediately preceding the particular date. Not only that, under the present provisions of the Act, the aggregate annual rental value must be not less than Rs. 1,200. If we keep this principle in mind, we find that the present case may not come within the mischief of the concerned Proviso. There has been no uniform assessment in all the four half years concerned. It cannot be said that for the years 1970-71 and 1971-72 there has been an assessment on the aggregate annual rental value of not less than Rs. 1,200. As pointed out earlier, between the year 1970-71 and the years 1971-72 and 1972-73, there is a variation in the sense, while for the earlier period, the annual rental value was Rs. 420 and for the later periods it was at Rs.600. Hence, it cannot be said that in all the four half years, the aggregate annual rental value was not less than Rs. 1,200. 8. It is also not possible to total up the annual rental value for all the four half years, and conclude that the aggregate annual rental value exceeds Rs. 1,200. Hence, it cannot be said that in all the four half years, the aggregate annual rental value was not less than Rs. 1,200. 8. It is also not possible to total up the annual rental value for all the four half years, and conclude that the aggregate annual rental value exceeds Rs. 1,200. In Pothukuchi Venkata Ramanayya and others v. Daggubati Mallikharjanudu1 referred to above the learned Judges stated the position with reference to the expression “aggregate” as follows:- “ The word ‘aggregate’ clearly refers to the total of the rental values of the various buildings and lands in respect of which the tax has been imposed and not to the total of the valuation for two half years.” 9. Such a construction could not be laid on the provisions of the Act. I find that the Courts below have committed an error with reference to the application of the provisions of the Act to the facts of the present case, in that they have totalled up the annual rental value for the concerned four half years and have presumed that the aggregate annual rental value is not less than Rs. 1,200. This is not correct in view of the dictum laid down by the Court in the decisions referred to above. Hence, I find that the defendant in the present case, cannot be brought within the mischief of Proviso C to section 3 (ii) of the Act so as to deny the benefits of the Act. If this position is made clear, I find that there is no other impediment to grant the relief prayed for. In this view, this revision is allowed, but, there will be no order as to costs.