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2004 DIGILAW 534 (MAD)

K. Natesan v. K. Ramasamy

2004-03-26

M.THANIKACHALAM

body2004
Judgment :- The landlord, who had failed in his attempt to evict the cultivating tenant, from the land, by moving a petition before the Special Deputy Collector (Revenue Court), Thiruchirapalli, is the revision petitioner. 2. The revision petitioner is the owner of 44 cents in Survey No.21/1, out of an extent of 1.46 acres situated at Hasthampatti, Salem. The respondent is occupying the land, as cultivating tenant. The agreed rent for this land is Rs.200/- per annum. The landlord had filed a petition, for the eviction of the tenant, under Sections 3 and 4 of the Tamil Nadu Cultivating Tenant Protection Act, herein after called 'the Act', alleging that the tenant has committed willful default, in payment of rent and not only that he had also used the land, for the purpose of cultivation of coconut trees, without consent, which is not an agriculture or horiculture. It is the further case of the landlord in the double crop wet land, the respondent also put up a thatched shed. In this view of the matter, an eviction is prayed for, before the authorised officer (Revenue Divisional Officer) Salem in CTP.No.928/2000. 3. The tenant reiterating the previous litigation between the parties, informing the court, how he had not committed any default in payment of rent or how he had not converted the user of the land, for any other purpose, opposed the application, for eviction. 4. The authorised officer, after going through the materials placed before him, as well as considering the evidence of the parties, came to the conclusion that the tenant had not violated any provisions of the Act and since there was some bona fide dispute, for the payment of arrears of rent, time has to be granted. In this view, he had directed the tenant to pay the arrears of Rs.2400/- within a period of eight weeks from the date of order viz., 15.3.2002, which is under challenge in this revision. 5. Heard the learned Senior Counsel, Mr. S.V. Jayaraman and the learned Senior Counsel, Mr. for the petitioner and the learned counsel for the respondent, Mr. T.R. Mani. 6. 5. Heard the learned Senior Counsel, Mr. S.V. Jayaraman and the learned Senior Counsel, Mr. for the petitioner and the learned counsel for the respondent, Mr. T.R. Mani. 6. The learned senior counsel for the petitioner/landlord submits, that the authorised officer had committed an error, in granting time, for payment of arrears, exceeding his discretionary power and therefore, setting aside the same since the tenant had committed willful default in payment of rent, he has to be evicted from the land. It is the further submission of the learned counsel, that admittedly the tenant had raised coconut trees in the land, which was leased out for the purpose of raising paddy cultivation and in this view, he had violated Section 3(2)(b) as well as Section 3(2)(c) of the Act and on this ground also, he is liable to be evicted. 7. Opposing the above arguments, the learned senior counsel for the respondent/tenant submits, that under the Act, a discretion is vested with the authorised officer to permit the person, who has committed default in payment of rent, to pay the arrears of rent, giving time, and the same is exercised judicially in favour of the tenant, which cannot be termed as excessive discretion. It is the further submission of the learned senior counsel for the tenant, that raising coconut trees, that too, on the bunds or the ridges of the land, will not amount to change in user, the fact being, the entire cultivable area is in tact and cultivated so. Therefore, according to the learned senior counsel for the tenant, the order passed by the authorised officer is legally sound and it does not warrant any interference. 8. The admitted position at present is that the revision petitioner is the owner of the property mentioned in the petition and the respondent is the tenant. The subject matter of the lease, an extent of 44 cents is a wet land, capable of raising paddy twice in a year. The agreed rent for this premises is Rs.200/- per annum. From 1980 onwards, dispute had arisen between the parties. The landlord and his relatives, in one way or the other, attempted to evict the tenant and the tenant is successful from the year 1980, to protect his possession. The agreed rent for this premises is Rs.200/- per annum. From 1980 onwards, dispute had arisen between the parties. The landlord and his relatives, in one way or the other, attempted to evict the tenant and the tenant is successful from the year 1980, to protect his possession. The landlord unable to evict the admitted tenant, who is a cultivating tenant also, which is not in dispute at present, moved the authorised officer, Salem, for the eviction of the tenant, labeling him as a willful defaulter, in payment of rent, as well as complaining that he had caused destruction as well as injuries to the land. Therefore, it is for the landlord to make out a case, about the willful default, as well as the act said to have been committed by the tenant, causing destruction or injuries to the land. 9. The tenant had not paid the entire rent, as on the date of the filing of the petition, is not in dispute. The authorised officer i.e. Revenue Court at Salem on the basis of the materials placed before it, came to the conclusion that the landlord is entitled to receive the rent from 22.7.1980, which comes to Rs.4200/- for 21 years. He has further concluded that Rs.1800/- had already been paid and the balance of Rs.2400/- alone has to be paid. This factual finding is not in dispute. In order to relieve from the eviction, on the ground of non payment of rent, as per the order dated 15.3.2002, the Rent Controller had granted 8 weeks time for the tenant, which is seriously questioned, as if he has no jurisdiction, under the facts and circumstances of the case. 10. Section 3(4)(b) of the Act says: "....The Revenue Divisional Officer may allow the cultivating tenant such time as he considers just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing the arrears of rent payable under this Act, inclusive of less costs as he may direct" It further says, if the cultivating tenant deposits the amount as directed, he shall be deemed to have paid the rent and only in the absence of depositing the rent, the Revenue Divisional Officer is authorised to pass an order of eviction. Under this provision alone, 8 weeks time was granted to the tenant, to deposit the rent and it is reported before me that the rent has been deposited. I am unable to find any error in granting time, for deposit of arrears of rent, while exercising the discretionary jurisdiction. 11. The learned counsel for the landlord submits, that the tenant knew that he has to pay the rent, and despite the fact, from 1980 onwards, he has failed to pay the rent and therefore, granting time to this kind of tenant, to pay the arrears of rent is unjustifiable. Section does not say, for which kind of tenant, time shall be granted. This Act is enacted, only to protect the cultivating tenants and not to evict them on the ground of default in payment of rent, as a routine work. A cultivating tenant, due to so many reasons, unable to pay the rent and the legislature thought fit, such tenant should not be automatically evicted, for the non payment of rent. In their wisdom to give protection to the cultivating tenant, as well as to save the landlord from the recalcitrant tenant, Section 3 is introduced. Section 3 says, no cultivating tenant shall be evicted from his having or any part there of by or at the instance of the landlord subject to other sub sections. Sub section 4(b) to Section 3 says, the Revenune Divisional Officer may allow the cultivating tenant such time as he considers, for depositing the arrears of rent. It is the duty of the court, which implements the provisions, to protect the tenants, also in order to satisfy the requirements and purpose of the Act. In this view alone, the Authorised Officer has granted time i.e only 8 weeks, which cannot be termed as excessive or it cannot be termed as unfair discretion shown to the tenant. The contention of the learned counsel for the revision petitioner, that there was default from the year 1980, will not come to the aid of the landlord, to evict this tenant automatically, considering the prolonged litigation between the parties. 12. The property, which is in possession of the respondent/tenant originally belonged to one Anai Gounder. In the year 1962 or so, this property was leased out to the father of the respondent, on his agreeing to pay annual rent of Rs.200/-. 12. The property, which is in possession of the respondent/tenant originally belonged to one Anai Gounder. In the year 1962 or so, this property was leased out to the father of the respondent, on his agreeing to pay annual rent of Rs.200/-. Thereafter, in the partition between the family members of the land owners, it seems, the property was allotted to one Subramani and only from the said Subramani, the present petitioner had purchased the property on 27.2.1980. Till such time, there was no dispute between the landlord and tenant and it appears the tenant was very regular in payment of rent. After the purchase of the property by this petitioner, it seems an attempt was made through the relatives of the petitioner, to evict the tenant by filing a suit in O.S.No.144/80 on the file of the District Munsif, Salem. Thereafter, the tenant had filed two suits. When the above said cases came to the High Court, a final conclusion was reached that the respondent is entitled to the benefits of Cultivating Tenants Protection Act, giving direction to the landlord, to move the Rent Court, for appropriate relief, even giving direction to the lower Court, to return the plaint, for being presented before the Rent Court, with appropriate amendment. 13. In the suit filed by the respondent for injunction against the encroachers, as observed by the authorised officer and because of the stand taken by the landlord, it seems for some period, the tenant had not deposited the rent, which is now branded as arrears, as aforementioned. Therefore, considering the previous litigation between the parties, which was aimed to evict this tenant, the non payment of rent or non deposit of the rent, by the tenant cannot be termed as willful and the same cannot be used against the cultivating tenant, to order eviction, without giving reasonable time, as contemplated under Section 3(4)(b) of the Act. In this view of the matter, grant of time for the payment of arrears of rent, is justifiable and on the ground of non payment of rent, which is now paid, the landlord is not entitled to evict the tenant. 14. The main ground for the eviction of the tenant appears to be one contemplated under Sections 3(2)(b) and 3(2)(c) of the Act. 14. The main ground for the eviction of the tenant appears to be one contemplated under Sections 3(2)(b) and 3(2)(c) of the Act. Sections 3(2)(b) and 3(2)(c) reads as follows: "3.(2) Subject to the next succeeding sub-section, sub-section (1) shall not apply to a cultivating tenant - *** *** (b) who has done any act or has been guilty of any negligence which is destructive of, or injurious to the land or any crop thereon of has altogether ceases, to cultivate the land or (c) who has used the land for any purpose not being an agricultural or horticultural purpose" To invoke Section 3(2)(b), the reason alleged is that the tenant removed the soil in the wet land, by digging a pit measuring 10 ft x 10 ft to a depth of 5 ft. The reason projected for invoking Section 3(2)(c) is that the tenant had raised coconut trees, without the consent of the landlord. 15. At the request of the parties, the authorised officer had directed the Revenue Inspector, to inspect the demised premises and he had filed a report. As per the report filed by the Revenue Inspector, in the demised premises, there are 45 coconut trees. There is no pit of any kind, as projected in the petition. It is also the observation of the Revenue Inspector, that in the lands, the tenant had raised paddy crops and the same was ripe was harvest. The coconut trees are planted adjacent to the ridges of the field and not in the entire land itself. This fact is also not disputed. It is also admitted by the tenant, that he had planted coconut trees in the lease hold property. Since it is not proved that the tenant has been guilty of any negligence, which is destructive or injurious to the land, the landlord is not entitled to invoke Section 3(2)(b), for the eviction of the cultivating tenant, and this finding is not challenged before me. The remaining ground is only Section 3(2)(c). In order to see whether this ground is available, we have to see certain definitions in the Act. 16. Section 2(iii)(b) defines, "cultivation" means the use of the lands for purpose of agriculture and horiculture. The remaining ground is only Section 3(2)(c). In order to see whether this ground is available, we have to see certain definitions in the Act. 16. Section 2(iii)(b) defines, "cultivation" means the use of the lands for purpose of agriculture and horiculture. In the same section, 'd' defines, "land" means land used for the purpose of agriculture or horticulture and includes any building or any waste, vacant or forest land, appurtenant thereto, and any house-site belonging to the landlord and let to the cultivating tenant under the same agreement of tenancy. 17. From the above definition, it could be seen a person, who is doing horticulture in the demised premises is also entitled to the protection of the Act. Section 3(2)(c) specifically says, a tenant could be evicted, who has used the land, for any purpose not being an agricultural or horticulture purpose, thereby showing a person, who has used the land for agricultural and horticulture purpose, is not entitled to be evicted. 18. The learned counsel for the revision petitioner submits that raising coconut trees in a double crop wet land will attract Section 3(2)(c), placing reliance in S.Krishnamurthy Iyer v. Ramaiah Konar (1982 TNLJ 517), as well as an unreported decision in C.R.P.No.1249/88 dated 12.9.1994. In the case involved in the above decision, the tenant had used the land, not only for the purpose of raising coconut trees, but also he had buried a cow in the field and had put up a samadhi and also a thatched roof, in addition to the digging up of a pond. Considering the over all activities of the tenants in that case, Ratnam, J. (as His Lordship then was) had concluded that such a tenant is liable to be evicted under Section 3(2)(b) and 3(2)(c) of the Act. Factually, this ratio is not applicable to this case. The tenant raising coconut trees on the ridges, cannot be termed as injurious to the field or it cannot be said that he is using the land for different purpose viz., other than cultivating, for which purpose the land was leased out. As spoken by the tenant and as noted by the Commissioner also, in this case, the coconut trees were, only on the ridges and the entire cultivable land is available, as such. As spoken by the tenant and as noted by the Commissioner also, in this case, the coconut trees were, only on the ridges and the entire cultivable land is available, as such. Therefore, on the admitted facts, that the tenant had raised 42 coconut trees or so, in the field i.e. adjacent to ridges, this act of the tenant cannot be termed as one violating Section 3(2)(b) or (c), as the case may be. 19. Raising coconut trees should come, as rightly, held by the authorised officer, under horticulture purpose and it can be termed even as an improvement, not destructive or injurious to the land. To support this view, the learned counsel for the respondent relied on the rulings in Venkayya v. Ramasami (XXII ILR 39); Sri Raja Bommadevara Chayadevamma v. Venkataswamy (LX II MLJ 511) and S.M. Narayana Aiyanga v. S.P.R.M. Subramanian Chettiar (1937 (1) MLJ 233). In all the above cases, Full Bench of this Court had held, that under the Madras Estate Lands Act, raising coconut trees or plantation of coconut trees, would amount to an improvement. The above principle can be adopted to this case, though it comes under Cultivating Tenants Protection Act. By raising coconut trees, that too near the ridges or over the ridges as the case may be, the tenant retaining other part of the cultivable portion in tact, improved the lands, which will not give any cause of action for the landlord, to evict the tenant, the fact being horticulture also comes within the meaning of cultivation, as per the definition. In this view of the matter, as rightly submitted by the learned senior counsel appearing for the tenant, the conclusion of the learned Judge in S. Krishnamurthy Iyer's case, that raising coconut trees will give cause of action to evict the tenant may not be a good law, considering the bench decisions of this Court, which says that raising coconut trees is an improvement as already adverted to above. 20. In Krihsnamurthy Iyer's case, there were other grounds, to say the act of the tenant came within the meaning of Section 3(2)(b), since a Samadhi had been put up, a pond had been created, detriment to the land, reducing the area for double crop etc. 20. In Krihsnamurthy Iyer's case, there were other grounds, to say the act of the tenant came within the meaning of Section 3(2)(b), since a Samadhi had been put up, a pond had been created, detriment to the land, reducing the area for double crop etc. In that decision, taking into over all consideration, the act of the tenant is described as one attracting Section 3(2)(b) and not on the ground of raising coconut trees alone. In the unreported case, it seems, the entire area of double crop land was converted into a coconut plantation, thereby bringing the same as injury to the property, which is not the position in this case. In this view, both the rulings fail to support the contention of the landlord. 21. Having regard to the facts and circumstances of the case and for the reasons assigned by me supra, the authorised officer, considering the factual situation, had correctly come to the conclusion, that the tenant is not liable to be evicted, which is to be accepted by this Court. The revision is devoid of merits and the same is dismissed with costs.