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2001 DIGILAW 16 (AP)

Krishna Dhannaraja Swamy v. Pathi Mohan Rao

2001-01-18

V.ESWARAIAH

body2001
V. ESWARAIAH, J. ( 1 ) SRI Krishna Dharmaraja Swamy devasthanam, Moojapet, Nellore represented by its Executive Officer, filed this writ petition questioning the orders of respondents 2 and 3 in rejecting its claim to evict the 1st respondent for non-payment of agreed rent in respect of the lands leased out by it in favour of the 1st respondent. ( 2 ) THE petitioner-Temple is the owner of the agricultural land admeasuring Ac. 9-83 cents. Leasehold rights were put to public auction and the 1st respondent became the highest bidder in the auction held on 27-12-1975 by offering in maktha of 14 putties-10 tooms of paddy per year payable by 31st March of every year for a period of 5 years from 1976-77 to 1980-81. The 1st respondent defaulted the payment of rents and fell in arrears for the 1st year onwards, and he committed default in payment of maktha for the years 1976-77 to 1980781. The petitioner filed the eviction petition in atc. No. 252 of 1981 on the file of the special Officer (Principal District Munsif), nellore under Section 13 of the Andhra pradesh (Andhra Area) Tenancy Act, 1956 (hereinafter referred to as the Act ) for eviction of the 1st respondent from the lands of the petitioner-Temple. ( 3 ) THE 1st respondent resisted the eviction petition contending that due to heavy competition, he offered more rent, and that the rent offered by him was more than the maximum rent payable under section 3 of the Act, and therefore, he filed an application for fixation of fair rent in t. A. No. 24 of 1977, which was re- renumbered as ATC No. 170 of 1981 on the file of the Special Officer-cum-Principal district Munsif, Nellore, and till the pendency of the said application, he cannot be evicted, as he was paying the rent that is payable under Section 3 of the Act. ( 4 ) APART from filing the eviction petition in ATC No. 252 of 1981, the petitioner also filed a suit in O. S. No. 224 of 1982 for recovery of the arrears on the file of the subordinate Judge, Nellore, which was decreed, as the petitioner was entitled to recover the agreed rents apart from taking action for evicting the 1st respondent for default in payment of agreed rents. ( 5 ) THE 3rd respondent, i. e. , the Primary tribunal, dismissed ATC No. 252 of 1981 by order dated 11-3-1988 recording the findings that as against the total maktha of 72 putties 10 tooms payable for 5 years, the 1st respondent has paid 22 putties 10 tooms towards maktha for the aforesaid 5 years of 1976-77 to 1980-81, and defaulted in payment of maktha to an extent of 39 putties, 5 tooms and 8 munthas; but the default in payment of the said maktha to an extent of 39 putties, 5 tooms and 8 munthas is not at all a default, as the 1st respondent is under an obligation for the payment of maktha as specified under Section 3 of the act. According to the evidence available on record, the maximum yield of the crop is only 15 putties per year and the maximum maktha payable will be only 4 putties 10 tooms and the 1st respondent has paid maktha of 22 putties 10 tooms for the years 1976-77 to 1980-81, and as the 1st respondent paid more than the said 30% of the yield, it cannot be said that the 1st respondent has committed default in payment of rents. The Primary Tribunal further held that the petitioner filed the suit for recovery of arrears of maktha, and therefore, it constitutes waiver of right to evict the 1st respondent, as the maktha has been received by the petitioner without any protest. The Primary Tribunal further relied on the judgment in K. Sathyanarayana vs. Ramnlingcswafti Simmy Temple, Mitddanimi with regard to the waiver of right to evict the 1st respondent, as maktha has been received by the petitioner without any protest. As against the total maktha of 721/2 putties, the 1st respondent paid 32 putties, 4 tooms and 8 munthas and admittedly, the 1st respondent committed default in payment of rent to the tune of 39 putties,5 tooms and 8 munthas. Finally, the primary Tribunal dismissed the petition by order dated 11-3-1988, against which, the petitioner filed ATA No. 11 of 1988 on the file of the District Judge, Nellore. Finally, the primary Tribunal dismissed the petition by order dated 11-3-1988, against which, the petitioner filed ATA No. 11 of 1988 on the file of the District Judge, Nellore. ( 6 ) THE District Judge, Nellore, by order dated 20-2-1990, dismissed the appeal of the petitioner, but reversed the findings of the primary Tribunal holding that though it cannot be said that the appellant, i. e. , the petitioner herein, has waived its right of eviction, it cannot, at the same time, be said that the 1st respondent has committed wilful default in payment or rents, as the 1st respondent paid the maximum of 30% of the gross yield payable under Section 3 of the Act. ( 7 ) QUESTIONING the aforesaid orders of respondents 2 and 3, this writ petition is filed contending that the Primary Tribunal as well as the District Judge erred in holding that the 1st respondent did not commit any default in payment of rent, in the absence of fixation of fair rent under section 6 of the Act. The learned Counsel for the petitioner further submits that the division Bench Judgment of this Court in raghavaiah vs. Rajagopalaswamy Temple relied upon by both the Tribunals, has been reversed by the Full Bench of this Court in b. Nageswara Rao vs. District fudge, West godavari. ( 8 ) ON the other hand, the learned counsel for the 1st respondent submitted that the aforesaid Full Bench Judgment of this Court has no application to the facts of the case, as the 1st respondent immediately filed the application for fixation of fair rent and till the fixation of the fair rent by the primary Tribunal, it cannot be said that the payment of maktha by the 1st respondent is less than the rent payable by him and committed default in payment of rents. ( 9 ) PURSUANT to Sections 4 and 5 of the act, the petitioner-landlord auctioned its right to get the maktha and the 1st respondent became the highest bidder for cultivation of the lands agreeing to pay the quantum of rent of 14 putties, 10 tooms per year for a period of 5 years. However, the quantum of rent is subject to the maximum rent specified in Section 3 and subject to the determination of fair rent under the provisions of Section 6 of the Act. However, the quantum of rent is subject to the maximum rent specified in Section 3 and subject to the determination of fair rent under the provisions of Section 6 of the Act. As per section 3, the maximum rent payable by the cultivating tenant shall be 30% of the gross produce. Section 6 says that on an application filed either by the tenant or the landlord, the Tribunal shall make an enquiry, having regard to certain factors, and determine the fair rent; and until the fair rent is determined, the agreed rent payable in respect of the holding shall be presumed as fair rent. Section 7 of the Act makes it clear that the cultivating tenant shall continue to deposit the agreed rent on the due date, as if no application has been made for determination of the fair rent; and if ultimately, the fair rent is determined and the amount paid to the landlord is more than the fair rent determined under section 6 of the Act, the balance, if any, shall be refunded to the cultivating tenant; if the fair rent determined exceeds the rent deposited, the cultivating tenant shall be required to deposit the balance within a period of 15 days from the date of receipt of such requisition. As per Section 13 of the act, the landlord is entitled to terminate the tenancy, if the cultivating tenant fails to pay the rent due by him within one month from the date stipulated in the lease deed, or in the absence of such stipulation, within one month from the date on which the rent is due according to the usage of the locality; and in case, the rent is payable in the form of a share in the produce, has failed to deliver the produce at the time of harvest. Section 13 (a) of the Act makes it very clear that the landlord has got a legal right to terminate the tenancy seeking eviction of the cultivating tenant for default in payment of rent due and payable by the tenant within the stipulated time. Section 13 (a) of the Act makes it very clear that the landlord has got a legal right to terminate the tenancy seeking eviction of the cultivating tenant for default in payment of rent due and payable by the tenant within the stipulated time. The cumulative effect of all the aforesaid provisions makes it clear that irrespective of the pendency of the application for determination of the fair rent, the cultivating tenant is under an obligation to pay the agreed rent within the stipulated time; and for the default of payment of any rent or maktha within the prescribed time, the application for eviction of the cultivating tenant is maintainable and the landlord is entitled to seek eviction of the tenant. ( 10 ) THE only question that arises for consideration in this writ petition is whether the 1st respondent has committed default in payment of rent as contemplated under Section 13 (a) of the Act? ( 11 ) AS per Section 7 of the Act, the tenant shall continue to pay the agreed rent pending disposal of the proceedings for fixation of the fair rent and if he defaults in payment of rents, it shall be presumed that he has failed to pay the rents due by him within the stipulated time. In this particular case, the rents are payable for each year by 31st March of every succeeding year. The auction was held in respect of the lands on 27-12-1975, and every year, the 1st respondent is liable to pay 14 putties 10 rooms by 31st March of every succeeding year. Admittedly, the 1st respondent defaulted in payment of agreed rents, but he assumed that the rent payable by him is only 30% of the total yield under Section 3 of the Act, and paid less than the agreed rent, and therefore, it cannot be said that the 1st respondent has not committed any default in payment of rents. In B. Nageswara rao s case (supra), the Full Bench of this court also held in Para 6 of the judgment that till the fair rent is determined under section 6, it shall be presumed that the agreed rent in terms of Section 5 has to be presumed as the fair rent and the tenant is under an obligation to pay the agreed rent as fixed under Section 5 of the Act to the landlord. Therefore, the petitioner is entitled to seek for the eviction of the tenant under Section 13 of the Act. The Division bench judgment in Raghavaiah s case (supra) relied upon by both the Tribunals has been overruled holding that the rent due is only the rent as agreed to pay under section 5 till the fair rent is fixed under section 6. Admittedly, in this case also, the 1st respondent has not paid the agreed rent under Section 5, and therefore, he has committed default in payment of rents. ( 12 ) THE learned Counsel for the respondents contended that the aforesaid decision of the Full Bench has no application to the facts of the case, as the tenant in the said case has not taken any defence that the rent under Section 5 is excessive and contrary to Section 3 of the act, and therefore, it cannot be said that the 1st respondent has committed default in payment of rents. ( 13 ) THOUGH in this particular case, the contention of the 1st respondent that the agreed rent is excessive and contrary to section 3 of the Act, and in fact, he filed an application for fixation of fair rent, it will not change the legal position disentitling the landlord to seek eviction of the 1st respondent, as admittedly, the 1st respondent committed default in payment of rents. I therefore, hold that the orders of both the Tribunals are illegal and contrary to the provisions of the Act. ( 14 ) THE learned Counsel for the petitioner further submitted that the application filed by the 1st respondent for fixation of the fair rent in ATC No. 170 of 1981 has been disposed of on 29-10-1990 fixing the fair rent at 7 putties 5 looms per year, and against which, ATA No. 1 of 1991 was filed, which was dismissed on 21-3-1995, and according to the fair rent also, the total maktha payable is 371/2, putties, but whereas, the petitioner paid 321/2, putties only for the 5 years, which is less than the fair rent, and thus, the 1st respondent clearly coinmitted default in payment of fair rent also, even though the petitioner cannot take shelter under the provisions of Section 3 of the Act for the payment of the notional rent of 30% of the maximum yield. ( 15 ) FOR the foregoing reasons, I cannot sustain the impugned orders of both the tribunals, and accordingly, the impugned orders are set aside, and the eviction petition stands allowed. The writ petition is allowed. No costs.