Ammasai Gounder v. Namagiri — 1991 DIGILAW 943 (MAD)

Judgment :- The petitioner is a cultivating tenant. The Respondent filed O.S. No. 89 of 1984 on the file of the Subordinate Judges court, Gobichettipalayam, for recovery of arrears of rent for the year 1981-1982. A decree was passed on 31.8.1990. As per the decree the petitioner was liable to measure 66 salaigais of paddy and pay at the rate of Rs. 180/- per quintal. The decree was sought to be executed by the respondent in E.P. 33 of 1991. The amount as worked out in the execution petition is Rs. 15,096.10 with i nterest as awarded by the decree. The rent has been calculated to be Rs. 9,564/- representing the value of paddy at the rate of Rs. 180/- per quintal plus Rs. 60/- for straw. The petitioner filed a counter stating that he had availed himself of the provisions of the Tamil Nadu Cultivating Tenants Arrears of Rent (Relief) Act, 1990, Act 38 of 1990 for short ‘the Act’ and deposited the amount required by the Act with the competent Authority, i.e., Special Deputy Collector, Salem. The petitioner had pleade d that the entire arrears including the amounts for which the decree was passed stood wiped out on such deposit and the decree had ceased to be executable. 2. The Subordinate Judge held that the deposit was not a valid one in as much as it was not made before the court and it was said to have been made out with the Special Deputy Collector, Salem. Consequently, the Subordinate Judge directed the petitioner to pay the decree amount. Aggrieved by the said order the petitioner has filed the present revision petition. 3. It is the contention of learned counsel for the petitioner that under the provision of the Tamil Nadu Act 38 of 1990, the petitioner, is entitled to make a deposit before the competent authority and apply to the court for vacating the decree. Before considering the provisions of the Act it is necessary to refer to a few more facts. I have already adverted to the circumstance that the decree directed the petitioner to pay at the rate of Rs. 180/- per quintal of paddy for the year 1981-1982. The total rent was 66 salaigais per year. It is stated by learned counsel for the respondent that 66 salaigais would be roughly equal to 53 quintals. I have already adverted to the circumstance that the decree directed the petitioner to pay at the rate of Rs. 180/- per quintal of paddy for the year 1981-1982. The total rent was 66 salaigais per year. It is stated by learned counsel for the respondent that 66 salaigais would be roughly equal to 53 quintals. It is only on that basis the respondent has calculated the amount due under the decree as Rs. 9564/- on the date of the execution petition. She has added interest as granted by the decree. However, the petitioner has deposited only Rs. 6750/-, with the Special Deputy Collector, Salem, who is said to be the competent Authority under the Act. The amount is said to be arrived at by taking the current rent to be Rs. 4,500/- and arrears to be Rs. 9,000/-. The petitioner claims to have deposited the current rent of Rs. 4,500/- plus Rs. 2,250/- being one fourth of the arrears, according to him. Even on the face of it, the calculation of the amount due under the Act is not correct. Even under the decree, the price of paddy was Rs. 180/- per quintal, 1981-1982. The court can certainly take judicial notice of the fact that prices have been increasing since then and it has never gone down. Even assuming that the price of paddy during the current fasli is the same as it was in 1981-1982 at the rate of Rs. 180/- per quintal. The rent payable for the current fasli by the petitioner will be Rs. 9540/- and not Rs. 4,500/- as claimed by the petitioner. In the option exercised by him under the Act, the calculation of arrears is also on the same basis at Rs. 4,500/- per year. This again is wrong. Thus it is clear that the amount said to have been deposited with the Special Deputy Collector does not satisfy the requirements of the Act. 5. Turning to the provisions of the Act, there is no dispute whatever that the deposit should be made in the civil court whenever there is a proceeding in the Civil Court for recovery of arrears of rent. The deposit can be made before the competent Authority in the event of proceeding for eviction having been taken before the Revenue Divisional Officer. 6. The deposit can be made before the competent Authority in the event of proceeding for eviction having been taken before the Revenue Divisional Officer. 6. S. 4 of the Act provides for exercise of option by the tenant within two months from the date of the publication of the Act. The Act was published on 10.10.1990. The option should have been exercised on or before 10.12.1990. But an amendment Act was passed in Act 15 of 1991 which was preceded by ordinance 10 of 1990. Under the Act the time for exercising of option was extended by two months. Thus the tenants were given time till 10.2.1991 for exercising the option. In the present case the petitioner is claimed to have exercised option on 10.1.1991. Rule 3 of the Rules framed under the Act, provides for the option being exercised in Form I. The Form is also prescribed. In so far as the option is concerned, it has to be intimated only to the competent Authority in writing. The option should be to pay the current rent and one-fourth of the arrears of rent in the manner specified in part II of the Act., or to pay the current rent and one-third of the arrears of rent in the manner specified in Part III of the Act. In the present case the petitioner is said to have exercised the option in Part II. Sub-S. (ii) of S. 4 of the Act is to the effect that the option given under sub-S. (i) is final. 7. Competent authority’ is defined under S. 3(a) of he Act as the Revenue Divisional Officer, in whose jurisdiction the holding in question or part thereof is situate in relation to a cultivating tenant as defined in the cultivating Tenants Protection Act and the Authorized Officer in relation to a cultivating tenant as defined in the Public Trusts Act. ‘Court’ has been defined as any court in which any suit or proceeding for the recovery of any arrears of rent from a cultivating tenant is pending on the date of the publication of the Act or any court which has passed a decree or order for such recovery or any court to which such decree or order has been sent for execution. 8. 8. S. 5(1) is the following terms: “Relief for payment of arrears of rent:— (1) All arrears of rent payable by a cultivating tenant to the landlord for the said years and outstanding on the date of the publication of this Act, shall be deemed to be discharged, whether or not a decree or order has been obtained therefor, if such cultivating tenant pays to the landlord or deposits in the court or before the competent authority, to the account of the landlord in the manner specified in sub-Ss. (2) and (3).”. Under sub-S. (1) of S. 5 all arrears of rent payable by a cultivating tenant to the landlord for the years referred to in S. 4 and outstanding on the date of the publication of the Act, shall be deemed to be discharged whether or not a decree has been passed, if the tenant deposits in the court or before the competent authority, the current rent and one-fourth of the total amount of arrears of rent for the said years without interest. The sub-Section refers both to the court and the competent authority. It is quite obvious that deposits should be made in a court if a proceeding is pending in the court of a decree has been passed. In cases where proceedings for eviction are pending or orders of eviction have been passed the deposit has to be made before the competent authority. Sub-S. (2) prescribes the time within which the deposit for payment should be made. Sub-S. (3) and (4) prescribe the procedure to be followed after a deposit is made. sub-S. (5) refers to cases in which decree of orders have been passed in any suit or proceeding before the date of publication of the Act. The present case falls under sub-S. (5) as the decree has been passed on 31.8.1990. That sub-section also speaks of both the court and the competent authority. Learned counsel for the petitioner contends that the deposit could be made before the competent authority or the court and the choice is left to the tenant. With reference to the facts of this case he contends that no proceeding was actually pending on the date of publication of the Act in court as the decree had been passed earlier and the execution petition was filed later than the date of publication. With reference to the facts of this case he contends that no proceeding was actually pending on the date of publication of the Act in court as the decree had been passed earlier and the execution petition was filed later than the date of publication. According to him, the tenant, could have made the deposit only before the competent authority and not before the court. 9. I do not agree. When the Section speaks of court or competent authority it does not leave the choice to the tenant. If a proceeding is pending in a court the deposit should be made only in the court. If a proceeding is before the Revenue Divisional Officer, who happens to be the competent authority under the Act, the deposit should be made only with the competent authority. It is not open to a tenant to make a deposit before the competent authority when the matter is before the court. In cases in which decrees have already been passed the tenant should make the deposit only in court. I have already referred to the definition of ‘court’ in S. 3(b). It speaks not only of the court in which proceedings are pending but also of the court which has passed a decree and the court to which the decree has been sent for execution. S. 3(b)(i) clearly contemplates a situation in which a decree has been passed earlier and execution proceeding has not been instituted. If the legislature had thought that a deposit s hould be made before the competent authority in all events, it would have made such a provision. But the legislature did not intend to do so. The intention of the legislature is that in matters which had gone to court, the deposit must be made with the court so that the proceeding can be conveniently disposed of by the court. In matters which had gone before the Revenue Court competent authority, deposits should be made before the competent authority, who shall dispose of the proceedings according to law. Thus it is not open to the tenant to make a deposit before the competent authority on the ground that on the date of publication of the Act there was no proceeding actually pending before a court though a decree had been passed and an execution proceeding could be filed in that court. 10. Thus it is not open to the tenant to make a deposit before the competent authority on the ground that on the date of publication of the Act there was no proceeding actually pending before a court though a decree had been passed and an execution proceeding could be filed in that court. 10. Learned counsel submits that the Act contemplates only an application being filed before the court for vacating the decree after making a deposit before the competent authority. There is no warrant for such an interpretation. The sec. is clear and simple. The application for vacating the decree can be made before the court only when the deposit is made with that court. 11. The Rules framed under the Act also support the above interpretation of mine. Rule 4 is in the following terms. “Every deposit of current rent and arrears of rent under Sub.S. (2) of S. 5 or under sub-S. (2) of S. 7, as the case may be shall be made by the cultivating tenant, in Form II and the current rent and the arrears of rent shall be deposited before the court of the competent authority on or before the date specified in sub.S. (2) of S. 5 or sub.S. (2) of S. 7, as the case may be” (underlining by me). The words underlined clearly indicate that deposit should be made with the court if there was a proceeding before the court and before the competent authority if there was a proceeding before the authority. Otherwise, there is no necessity for using the expression as the the case may be in the rule. Moreover, the forms prescribed in Forms II and III use the expression ‘authority’, thereby indicating that it may be court or competent authority whereas, Form I uses the expression ‘competent authority’ as the option should be intimated only to the competent authority. 12. Consequently, the deposit made by the petitioner in this case, even if it is assumed for the sake of argument that the petitioner deposited the correct amount due under the Act, is not a valid one to be recognised by the Court for the purpose of vacating the decree or stopping execution. I have already found as a fact in this case that the deposit is not a proper one as the amount does not represent the amount due under the provisions of the Act. I have already found as a fact in this case that the deposit is not a proper one as the amount does not represent the amount due under the provisions of the Act. The petitioner is not entitled to claim the benefits of the Act as (i) he has not made a deposit before the civil court and (ii) he has not deposited the correct amount as prescribed by the Act. 13. In the result, the conclusion of the court below is correct and it is affirmed. This Civil Revision Petition is dismissed. There will be no order as to costs.