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1985 DIGILAW 334 (MAD)

K. Ramachandran v. Thangavel Padayachi

1985-08-06

K.M.NATARAJAN

body1985
Judgment :- This revision is directed against the order passed by the Revenue Court, Thanjavur, in Petition No.135 of 1980 on its file. The petitioner herein has filed an application under section 4-AA of the Tamil Nadu Cultivating Tenants Protection Act (XXV of 1955) for an order of resumption of the lands alleging that he was discharged from the Indian Air Force on 29th January, 1964, and that he requires the land for his personal cultivation and that he does not own more than one veli of land as required under Act 58/61. The said application is resisted by the respondent/tenant on the ground that the requirement is not bona fide and this case has been filed 15 years after the discharge from the Indian Air Force of the petitioner and that the petitioner is a resident of Thanjavur and that since the respondent refused to comply with the demand of the petitioner to give up the leasehold right, this petition has been filed. On the side of the petitioner, himself was examined as P.W.1 and on the side of the respondent himself was examined as R.W.1 and the learned Presiding Officer of the Rent Court dismissed the application on the ground that the petitioner, who admittedly was discharged from the Indian Air Force in 1964, has come forward with this application after a period of 15 years and that there is no bona fide in the requirement of the petitioner. Aggrieved by the same, this revision has been filed. 2. The learned Counsel for the petitioner contended that there is no time limit prescribed under section 4-AA of the Act for the landlord to apply for resumption of possession from any cultivating tenant for purpose of personal cultivation and states further that, the question of bona fide does not arise in the case of the petitioner and as such, the order impugned is liable to be set aside. On the other hand, the learned Counsel for the respondent/tenant contended that admittedly the respondent herein became the tenant of the petition-mentioned land in the year 1960 and that the petitioner was discharged from the Indian Air Force on 29th January, 1964 that section 4-AA of the Act was introduced only by virtue of the Amendment Act IX of 1965 and that the said Act has no retrospective effect. Further, to invoke the provision of section 4-AA of the Act, the petitioner should be a member of the Armed Forces on the date of the coming into force of the Act and admittedly, he was not a member of the Armed Forces on that date and hence, he is not entitled to maintain this application claiming the benefit under the provisions of section 4-AA of the Act. It was also further contended by the learned Counsel for the respondent that he must also establish that he was a landlord who was enrolled as a member of the Armed Forces to apply for an order of resumption, as per sub-clause (3) of section 4-AA of the Act and in the instant case, there is nothing to satisfy the requirement and further, there is no bona fide on the petitioner, since the petition is filed after 15 years and even though no limitation is prescribed, he must have filed the petition within reasonable time. 3. Sub-clause (3) of section 4-AA of the Act reads as follows: “Clause (3). A landlord who is enrolled as a member of the Armed Forces shall, on discharge or retirement from service or on being sent to Reserve, be entitled to resume possession from any cultivating tenant for purposes of personal cultivation of that extent of land, which together with the extent of land, If any, already in his possession does not exceed the ceiling area which he is entitled to hold under the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961 (Madras Act LVIII of 1961).” Explanation to the above section reads as follows: “For the purposes of this Act - (a) “member of the Armed Forces” shall have the same meaning as in clause (29) of section 3 of the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961 (Madras Act LVIII of 1961).” 4. In M.P.Shanmugham v. The Land Commissioner, Board of Revenue, Chepauk, Madras 5 and others, (1972)2 M.L.J.159-85 L.W.554. In M.P.Shanmugham v. The Land Commissioner, Board of Revenue, Chepauk, Madras 5 and others, (1972)2 M.L.J.159-85 L.W.554. K.S.Palaniswamy, J. while interpreting section 3(2)(1) of the Tamil Nadu Land Reforms (Fixation of Ceiling Land) Act, 1961 (Act LVIII of 1961) and Madras Land Reforms (Disposal of Surplus Land) Rules, 1965 had observed as follows: “Section 3(2)(1) of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961, defines “member of the Armed Forces” as meaning a person in the service of the Air Force, Army or Navy of the Union of India and includes a seaman.” It was also further observed in that decision that: “Though the definition given in section 3(29) would indicate that a person to be a member of the Armed Force should be a person in service meaning thereby that he should be In present service, rule 5 takes in not only a person who is a member of the Armed Forces but also a person who has been a member of the Armed Forces.” As such, there is a distinction between I section 3(29) and rule 5(1). It is clear from the above decision that under section 3(29) of the Act 58/61 a person should be in present service to claim a benefit under section 4-AA of the Act. Thus, it is clear that in view of the admitted facts that the said amended Act 9 of 1965 wherein section 4-AA was introduced, came into force long after the discharge of the petitioner from the Armed Forces, he cannot be construed to a member in service on the date of his filing the application and as such, he is not entitled to maintain the application. 5. The learned Counsel for the petitioner submitted that though the petitioner has been discharged from the Armed Forces, he is still having a Roll Number in the Army and his name continues to be on the roll and as such, he is entitled to file an application. It is clear from the Explanation to section 4-AA of the Act that “member of the Armed Forces” shall have the same meaning as in clause (29) of section 3 of the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961 (Madras Act LVIII of 1961). It is clear from the Explanation to section 4-AA of the Act that “member of the Armed Forces” shall have the same meaning as in clause (29) of section 3 of the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961 (Madras Act LVIII of 1961). Section 3(29) of the Tamil Nadu Act LVIII of 1961 reads that: “Member of the Armed Forces means a person in the service of the Air Force, Army or Navy of the Union of India, and Includes a seaman.” There is no such word as “has been” as mentioned in rule 5 of the Tamil Nadu Land Reforms (Disposal of Surplus Land) Rules, 1965. Thus, it is seen that only the persons who are In service on the date when the Act came into force are entitled to invoke the benevolent provisions of section 4-AA of the Act. Further, It has to be noted that the principal Act itself was enacted only to confer benefit on the cultivating tenant and such a right is curtailed by the provision of section 4-AA of the Act giving benefit to persons who are in Armed Forces and since admittedly the petitioner was not in service on the date when the Act came into force and also when the application was filed, he is not entitled to maintain this application. 6. The learned Counsel for the respondent also drew my attention to another decision in P.Somasundaram v. M.Govinda-swamy, (1982) 95 L.W.10= A.I.R.1982 Mad. 117- (1981) T.L.N.J.311= I.L.R. (1982)2 Mad.1 wherein a Division Bench of this Court consisting of Gokulakrishnan, Offg. C.J. (as he then was) and Venugopal, J. held as follows: “Section 4-AA(3) of Cultivating Tenants” Protection Act requires that a landlord who is enrolled as a member of the Armed Forces shall, on discharge or retirement from services or on being sent to reserve be entitled to resume possession from any cultivating tenant for the purpose of personal cultivation. C.J. (as he then was) and Venugopal, J. held as follows: “Section 4-AA(3) of Cultivating Tenants” Protection Act requires that a landlord who is enrolled as a member of the Armed Forces shall, on discharge or retirement from services or on being sent to reserve be entitled to resume possession from any cultivating tenant for the purpose of personal cultivation. The language of sub-section (3) of section 4-AA clearly shows that at the time of joining the Armed Forces the person who wants to get resumption of lands ought to have been the landlord”; if he becomes landlord subsequent to his Joining the Armed Forces, subsection (3) cannot be invoked.” In the instant case, it was represented by the learned Counsel for the respondent that the petitioner Joined the Armed Forces in 1947 and there is absolutely nothing to hold that he was a landlord at that time in respect of the petition-mentioned property. Further it is the admitted case of both the parties that the respondent herein became a tenant only in 1960 subsequent to the petitioner”s joining the Armed Forces and as such, in view of the ratio laid down in the above decision the petitioner is not entitled to invoke the provision of section 4-AA(3) of the Act and maintain the application. Further, in view of the admission made by the petitioner himself in his evidence that he had no experience in cultivation, and that he is a permanent resident of Thanjavur, and that he intended to employ servants to do the cultivation work and the fact that this application has been filed after a lapse of 15 years after his discharge from Armed Forces, even though there is no time limit prescribed, the claim of the petitioner for personal cultivation cannot be said to be either bona fide or just. 7. For all these reasons, I am of the view that the order passed by the Rent Court is not liable to be set aside and consequently, this revision deserves to be dismissed. 8. In the result, the revision petition fails and stands dismissed. There will be no order as to costs.