judgement:
Civil Appeal No. 1472 of 1980.
Appeal by Special leave from the judgment and order dated the 1st February, 1980 of the Delhi High Court in Civil Revision Petition No. 122 of 1980.
Madan Bhatia, Rajiv Behl and Sushil Kumar for the Appellant.
L.M. Singhvi, L.R. Gupta M.V. Goswami and L.K. Pandey for the Respondent.
The Judgment of the Court was delivered by VARADARAJAN J.
This appeal by special leave is directed against the one word order dated 1.2.1980 of the learned Single Judge of the 55 Delhi High Court dismissing Civil Revision Petition No. 122 of 1980 in limine.
The tenants who were respondents in the Rent Control Eviction Petition, filed the Civil Revision Petition against the Rent Controller 's order dated 30.10.1979, declining to permit them to raise certain grounds of defence while granting leave to defend the eviction petition on certain other grounds.
Special leave to appeal against the order of the learned Single Judge of the High Court has been granted by this Court only on the question whether section 14A of the Delhi Rent Control Act, 1958 is applicable or not to the facts and circumstances of the case "in view of the later Circular of 1977".
The "later Circular of 1977" mentioned in the special leave granted by this Court on 5.8.1980 is the Office Memorandum dated 14.7.1977 of the Joint Secretary to the Government of India, Ministry of Works and Housing, Directorate of Estates, hereinafter referred to as the "second notification".
The same Joint Secretary to the Government of India in the same Ministry had issued the earlier Memorandum dated 9.9.1975, hereinafter referred to as the "first notification".
The respondent landlord filed the Petition for eviction of the appellants under section 14A read with section 25B of the Delhi Rent Control Act, 1958, hereinafter referred to as the "Act".
In the Eviction Petition the respondent had alleged that by virtue of his being a Government servant he has been allotted residential accommodation at No. 83 Lodhi Estate, New Delhi since November 1971.
Under the first notification he is required to vacate the Government accommodation and shift to his own house No. 11 B Maharani Bagh, New Delhi, which is now in the occupation of the appellants, and if he failed to do so he is to incur the obligation of paying rent/licence fee of Rs 1,448 per mensem on the ground that he owns a residential building in the Union Territory of Delhi and still continues to occupy Government accommodation.
The appellants have not vacated the premises occupied by them in spite of several assurances given by them since February 1976.
The respondent is paying a penal rent of Rs. 1,448 per mensem for the Government accommodation because he had not vacated that accommodation provided to him by the Government as a Government servant.
After presentation of the Eviction Petition and service of notice under section 25B of the Act, the appellants filed a Petition for grant of leave to defend the main Petition.
One of the objections disallowed, with which we are concerned in this appeal, is that in view of the second notification the respondent is not required to vacate the 56 Government accommodation now available to him and that he is, therefore, not entitled to evict the appellants under the provisions of section 14A of the Act.
The Civil Revision Petition filed by the appellants against the order of the Additional Rent Controller has been dismissed by the learned Single Judge of the High Court as mentioned above.
The appellants have, therefore, filed this appeal by special leave against that order.
We are concerned in this appeal with section 14A (1) of the Act, which reads thus: "14A (1) Where landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by, or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation, or in default, to incur certain obligations, on the ground that he owns, in the Union territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order to such landlord notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediately possession of any premises let out by him: Provided that nothing in this section shall be construed as conferring a right on a landlord owning, in the Union territory of Delhi, two or more dwelling houses, whether in his own name or in the name of his wife or dependent child, to recover the possession of more than one dwelling house and it shall be lawful for such landlord to indicate the dwelling house, possession of which he intends to recover. .
There is no dispute that the respondent is the owner of the premises in question, namely, 11 B Maharani Bagh, New Delhi, now occupied by the appellants on a rent of Rs. 2,100 per mensem and that he is at present in occupation of Government accommodation at No. 83 Lodhi Estate, New Delhi and is obliged to pay 57 penal rent/licence fee of Rs. 1,448 per mensem.
The relevant portion of the first notification reads thus: "That undersigned is directed to say that the question of allotment of Government residential accommodation to officers owing houses at or near the stations of their posting has been under consideration of Government for some time past.
It has now been decided, in supersession of all previous orders on the subject, as follows: (i) Those Government servants, who build houses in future at the place of their posting, within the limits of any local or adjoining municipality, whether with or without Government assistance, or who become owners of houses in future either in their own names or in the names of any members of their families shall be required to vacate Government accommodation in their occupation from the date their own houses are fit for occupation.
(ii) Those Government servants, who have already built houses at the place of their posting within the limits of any local or adjoining municipality, whether with or without Government assistance, or who own houses either in their own names or in the names of any members of their families shall be required to vacate the Government accommodation allotted to them, within three months from the 1st of October 1975.
If they do not vacate Government accommodation after that period, they would be charged licence fee at market rates.
(iii)Hence onward, no Government accommodation should be allotted to an officer owning a house at the place of his posting within the limits of any local or adjoining municipality.
A certificate shall be obtained from a prospective allottee that he has no house at the station of his posing within the limits of any local or adjoining municipality either in his own name or in name of any member of his family.
(iv) . . 58 (v) . . 2. . 3.
The Ministry of Home Affairs, etc.
are requested to bring the above decision of Government to the notice of all their attached and subordinate offices, and ensure that the decision is implemented in respect of different pools of Government residence under their control.
In so far as general pool accommodation is concerned, the Ministry of Home Affairs, etc., are requested to bring this to the notice of all Government Servants who are eligible for general pool accommodation as well as those who have already been allotted accommodation from the general pool, asking them by 15th October, 1975 to indicate whether they have their own houses as covered by these orders.
In case they have, a declaration may be obtained from them in the prescribed proforma and forwarded to the Directorate of Estate (Coordination I Section) by 15th November, 1975.
Other officers who do not own houses should also furnish a declaration to that effect.
All officials who have been allotted general pool accommodation may be advised that it is their responsibility to inform the Directorate of Estates, when they or any member of their families become owners of houses in future, within one month from the date of becoming such owners.
All officers eligible for general pool accommodation may also be warned that severe action will be taken against them in case they furnish any incorrect information".
In addition to this general first notification relating to Government accommodation in the occupation of Government employees there is a special order dated 22.1.1976 of the Assistant Director of Estates, New Delhi calling upon the respondent to vacate the Government accommodation No. 83 Lodhi Estate allotted to him since 31.12.1975, failing which he would be charged market rent with effect from 1.1.1976 at the rate fixed by Government from time to time and informing him that a bill at the market rate of licence fee for the said premises will follow.
59 In the affidavit filed in support of the Petition for grant of leave to defend the main Eviction Petition the appellants have stated that the respondent is occupying a huge, massive and palatial bungalow in the Lodhi Estate, New Delhi built on an area of about two acres and allotted to him by the Government and that whereas he is paying an alleged rent of Rs. 1,448 per mensem for that accommodation, he is getting a rent of Rs. 2,100 per mensem for his premises occupied by the appellants and he is thereby gaining a sum of Rs. 652 per mensem.
The appellants have further stated in that affidavit that there is a clear shift in the policy of the Government whereby Government accommodation is made available to even those employees who happen to have their own houses at Delhi and that Government have modified the notification relied upon by the respondent whereby house owing officials have become eligible for allotment of Government accommodation at the places of their posting with effect from 1.6.1977.
The notification said to modify the first notification is the second notification.
The relevant portion of that notification reads thus: "The undersigned is directed to say that the orders contained in this Ministry 's office Memorandum No. 12031 (1)/74 Pol.
II, dated 9.9.1975, as modified from time to time have been reconsidered.
Government has decided that the restrictions on allotment of accommodation to houses owning officers should be modified with effect from 1.6.1977, making house owning officers eligible for Government accommodation as communicated in this Ministry 's Office Memorandum of even number dated the 29th June, 1977.
It has also been decided that allotment of such accommodation to a house owning official will be on normal rent if the income from his own house does not exceed Rs. 1,000 p.m. or half the market rent if the income exceeds Rs. 1,000 p.m. but does not exceed Rs. 2,000 p.m. and on full market rent if the income is above Rs. 2,000 p.m.
Rent will be recovered on the same basis w.e.f.
1.6.1977 also from those house owing officials who are retaining Government accommodation on payment of market rents.
These decisions will apply equally whether the house is owned by the officer or his/her wife/husband or by his/her dependent children.
60 2. . 3.
Allotment of accommodation to house owning officers who have already vacated Government accommodation.
Such officers will be considered for allotment of accommodation in their turn on the basis of their priority date under the allotment rules.
No preference should be shown to them in the matter of allotment in consideration of the fact that they were earlier in occupation of Government accommodation and had vacated it in compliance with the earlier orders to which the officers are normally entitled without restriction of any locality or without any reference to the types of accommodation which the officers were occupying previously.
As usual, officers eligible for types V and above should also be considered for allotment in the types next below on the basis of their priority for such types.
After accepting initial allotment, they will be eligible for change in the normal manner in accordance with the allotment rules.
4. . 5. . 6.
In so for as the general pool is concerned officers who have already vacated Government accommodation may submit fresh applications for allotment of accommodation in the prescribed application form, indicating the details of the houses owned by them or their spouses or dependent children, alongwith documentary proof of the income they derive from the houses they own.
House owing officers, who are continuing in Government accommodation, should also furnish suitable documentary proof of the income they get from their private houses, to enable the Director of Estates to fix the licence fee recoverable from them w.e.f. 1.6.1977".
Mr. Madan Bhatia, learned counsel for the appellants, submitted that while under the first notification the respondent was required to vacate the Government accommodation within three 61 months from 1.10.1975 on pain of being liable to pay licence fee at the market rate if he failed to vacate within that time, Government employees like respondent have become eligible for Government accommodation under the second notification and are, therefore, not obliged to vacate the Government accommodation and that the respondent is, therefore, not entitled to seek eviction of the appellants from his premises under section 14A of the Act though he may file a Petition for eviction under section 14 (1) (e) of the Act which is a general provision applicable to all landlords who seek to evict their tenants on the ground that they require the premises for their own bonafide occupation.
Section 14 (1) (e) reads thus: "14.(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely : (a) . . (b) . . (c) . . (d) . . (e) that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation: Explanation For the purposes of this clause, "premises let for residential purposes" include any premises which having been let for use as a residence are, without the con 62 sent of the landlord, used incidentally for commercial or other purposes; . . " In support of the contention that in view of the second notification the respondent is not entitled to have recourse to the provisions of section 14A of the Act, Mr. Madan Bhatia relied upon the decision of this Court in Busching Schmitz Private Ltd. vs P.T. Menghani and Anr.
where the Court has observed at page 323 thus: "Supposing the landlord, after exploiting the easy process of section 14A, relets the premises for a higher rent; the social goal boomerangs because the tenant is ejected and the landlord does not occupy, as he would have been bound to do, if he had sought eviction for bona fide occupation under section 14 (1) (e).
Section 19 obligates the landlord in this behalf.
In literal terms, that section does not apply to eviction obtained under section 14A.
But the scheme of that section definitely contemplates a specific representation by the petitioner landlord to the Controller that because he has been ordered to vacate the premises where he is residing therefore, he requires immediate possession for his occupation. .
Once we grasp this cardinal point, the officer 's application for eviction under section 14A can be entertained only on his averment that he, having been asked to vacate, must get into possession of his own. .
The cause of action is not only the government order to vacate, but his consequential urgency to recover his own building." Mr. Madan Bhatia relied also on the decision of learned single Judge of the Delhi High Court in K.D. Singh vs Shri Hari Babu Kanwal, where the learned Judge has observed thus: "At the time when this application was brought in February 1977, the Circular of 9.9.1975 held the field.
Unfortunately, for the landlord this position under went change when the Central Government issued a revised Circular dated 14.7.1977 by which the orders contained in 63 the earlier circular dated 9.9.1975 were modified after reconsideration . .
A vital change thus took place by the Circular of 14.7.1977, namely, that there is no direction to a person who owns a house and who is in occupation of a residential premises allotted to him by the Central Government to vacate such residential accommodation. . .
Once therefore, the revised Circular of 14.7.1977 has come, the very basis on which the Eviction Application under s.14 A of Act was brought has ceased to exist and cannot avail him . .
It must be realised that s.14A was brought in only for a limited purpose to enable the Government servants in getting immediate possession of their house when they had been directed to vacate the Government accommodation.
The special legislation was made to serve special purpose in pursuance of the Circular of 9.9.1975.
Once that purpose has been modified and the Government has revised its decision and there is no direction to vacate such residential accommodation, it is impermissible in law to allow a Government servant to invoke s.14A and frustrate the beneficial Act of the Rent Control legislation like the Delhi Rent Control Act".
We do not agree with this view of the learned Judge.
It is seen from paragraph 3 of the Order of the Additional Rent Controller, which was sought to be revised by the High Court, that the respondent is paying a rent of Rs. 1,448 per mensem for the Government accommodation No. 83 Lodhi Estate, New Delhi.
In the reply affidavit filed in the Special Leave Petition the respondent has stated that he is liable to pay Rs. 1,543 per mensem for the Government accommodation as penal rent on account of his failure to vacate the same.
The respondent has produced in this Court a communication addressed to him by the Assistant Director of Estates, New Delhi saying that without prejudice to any other action which may be taken in respect of the Government accommodation which has been allotted to him, his liability will continue to increase to Rs. 2,898 per mensem and three times that rate on the expiry of 15 days from the date of service of orders of eviction under the till he vacates and restores the premises to the Central Public Works Department.
These facts and the liability of the 64 respondent to pay full market rent for the Government accommodation with effect from 1.6.1977 and the second notification in the light of his getting rental income exceeding Rs. 2,000 per mensem from his own premises show that the respondent has to incur certain obligations on his failure to vacate Government accommodation on the ground that he owns in the Union territory of Delhi a residential accommodation either in his own name or in the name of his wife or dependent child.
We do not find anything in the second notification taking away the obligation which has been imposed on the respondent by the first notification to vacate the Government accommodation within three months from the 1st of October 1975.
We are of the opinion that the second notification, without (taking away the obligation imposed by the first notification on Government employees owning houses in their own names or in the name of any other member of their families, within the limits of their place of posting, to vacate the Government accommodation within three months from the first of October 1975, has given an option to those employees to continue to occupy the Government accommodation subject to the obligation mentioned in the second notification, namely, that the house owning Government employee will have to pay normal rent for the Government accommodation if the income from his own house does not exceed Rs. 1,000 per mensem of half the market rent if the income from his own house exceeds Rs. 1,000 per mensem but does not exceed Rs. 2,000 per mensem and full market rent if the income from his house is above Rs. 2,000 per mensem with effect from 1.6.1977.
In the present case the market rent/licence fee which the respondent had to pay for the Government accommodation occupied by him on the date of institution of Eviction Petition was Rs. 1,448 per mensem and it had been increased to Rs. 1,543 per mensem as stated in the counter affidavit filed by the respondent in the Special Leave Petition and it has been further enhanced to Rs. 2,898 per mensem by the letter dated 17/18 7 1981 of the Assistant Director of Estates addressed to the respondent and referred to above.
The respondent has thus an option to continue to occupy the Government accommodation subject to the said obligation without vacating the Government accommodation within a period of three months from the Ist of October, 1975.
We are of the opinion that it is not open to the appellants to compel the respondent to exercise his option and continue to occupy the Government accommodation in order that they may continue to occupy the premises in question as the tenants.
Even apart from the first notification which is general in nature and has been modified by the 65 second notification as mentioned above, there is the special order dated 22.1.1976 which required the respondent to vacate the Government accommodation by 31.12.1975, failing which he is to pay market rent with effect from 1.1.1976 as mentioned above.
In these circumstances it is not possible for us to accept the argument of Mr. Madan Bhatia that the respondent is not entitled to have recourse to section 14A of the Act for seeking eviction of the appellants from the premises in question, having regard to first and second notifications and the special order dated 22.1.1976.
Dr. L.M. Singhvi, learned counsel for the respondent invited our attention to the decision of another learned Single Judge of the Delhi High Court in J.L. Paul vs Ranjit Singh (supra) where we find the following observations: "The last objection of the petitioner is that the notifications granting a right to the Government employee to seek eviction under Section 14A of the Act have been withdrawn, that this defence raises a triable issue and, therefore, the Controller ought to have granted leave to contest so that he may produce evidence on record in support of this part of his defence.
The right to claim eviction accrues to a landlord under section 14A of the Act and not under any notification issued by the Government.
The Government notification, general or special, only requires a landlord Government allottee to vacate the accommodation as he owns his house or pay penal rent.
The respondent submits that the general notification dated September 9, 1975 and the special order dated December 26, 1975 have never been withdrawn.
His contention is that there has been a notification about the rate of rent/licence fee to be paid by a Government employee, if he is also owner of his own house at the place of his posting and does not vacate allotted premises.
In short his contention is that right of eviction is available to a landlord allottee of Government accommodation if he fulfils the conditions mentioned in section 14A of the Act.
According to him there is modification that if the income of the landlord from his own house does not exceed Rs. 1,000 per month, he is liable to pay only the normal rent of the Government allotted accommodation, but if his income from his own house exceeds Rs. 1,000 and does not exceed Rs. 2,000 he is liable to pay half the market rent and in cases where his income from his own house is above 66 Rs. 2,000 per month, he is liable to pay full market rent.
The respondent contends that section 14A of the Act conferring upon a landlord/Government allottee (a right) to get his own vacated has never been repealed.
The learned counsel for the respondent further contends that mere assertion of the petitioner that the notifications have been withdrawn is vague and does not give him any right to leave to contest and lead any evidence. .If any notification has been withdrawn or cancelled, such an order must be in writing.
The petitioner/tenant in his application does not disclose any notification under which the Government notification requiring a landlord/Government employee to vacate has been withdrawn. . .
Thus the notification dated September 9, 1975 stands modified to the extent as to what rate of rent would be payable by the respondent Government allottee/landlord owning his own house if he retains the allotted premises, that is, if he fails to vacate the Government accommodation in pursuance of the general order dated September 9, 1975 and the special order dated December 26, 1975.
The income of the respondent from his own house, that is, suit property No. 164 Greater Kailash 1, New Delhi is Rs. 1,950 per month.
He is getting Rs. 850 per month from the petitioner occupying first floor and Rs. 1,100 per month from 'Escorts ' occupying the ground floor.
In accordance with the notification dated July 14, 1977, the respondent/landlord is thus liable to pay half the market rent from June 1, 1977 if he does not vacate the Government allotted accommodation.
In fact after the issue of notification dated July 14, 1977 the respondent has been directed to pay half the market rent by means of an order dated September 20, 1977 issued by the Directorate of Estates, Government of India with effect from June 1, 1977.
In short, it is certain that there is the general notification dated September 9, 1975 and the special order dated December 26, 1975 requiring the respondent/landlord to vacate the Government allotted residential accommodation or in default to pay half the market rent.
In other words he is to incur certain obligations, The liability is on account of the fact that he owns 67 the house in suit in the Union Territory of Delhi, his place of posting. . .
On December 12, 1979 Directorate of Estates was required to state whether the notification dated September 9, 1975 stands withdrawn or it was simply modified.
The Directorate of Estates in his letter dated December 14, 1979 informed that the Memorandum dated September 9, 1975 was not withdrawn but was only modified by the Memorandum dated July 14, 1977. . .
So if the two notifications dated September 9, 1975 and July 14, 1977 are read together, it appears that there is no cancellation of the earlier notification and that it is only a notification of the rate of rent payable by an allottee owning his own house.
Under this notification dated July 14, 1977 it is further provided that with effect from June 1, 1977 rent of allotted premises shall be recovered from the house owning officials retaining the premises at the rates mentioned therein.
The respondent is, therefore, liable to pay the rent accordingly and thus liable to incur obligation in default of vacating the premises. . .
The respondent satisfies the requirement of section 14A of the Act.
There is no defence available to the petitioner against the eviction application under section 14A of the Act". . .
In the present case also there is nothing on record to show that the obligation imposed upon respondent by the first notification to vacate the Government accommodation within three months from the Ist of October 1975 and by the special order dated 22.1.1976 by 31.12.1975, has been withdrawn.
The respondent can continue to 68 occupy the Government accommodation only subject to certain obligations.
We, therefore, hold that the respondent is entitled to have recourse to section 14A of the Act for evicting the appellants from the premises in question.
Accordingly the appeal fails and is dismissed with costs.
S.R. Appeal dismissed.

summary/full:
The respondent landlord filed a petition for eviction of the appellant, under section 14A read with section 25B of the Delhi Rent Control Act, 1958 on the ground of requirement for personal occupation, in view of the fact that he was forced to pay penal rent of Rs. 1,448 from his Government accommodation as per Government of India notification dated 9 9 1975 and the special order dated 22 1 1976 requiring him to vacate the Government accommodation by 31 12 1975.
After presentation of the eviction petition and service of notice under section 25B of the Act, the appellant filed a petition for grant of leave to defend the main petition and raised several objections in the written statement.
One such objection was that in view of the later circular of the Government dated 14 7 1977, the respondent was not required to vacate the Government accommodation and, therefore, he was not entitled to evict the appellants under the provisions of section 14A of the Delhi Rent Control Act.
The said objection having been disallowed by the Additional Rent Controller the appellant filed Civil Revision Petition before the Delhi High Court, which met with the same fate.
Hence the appeal against that order by special leave.
Dismissing the appeal, the Court ^ HELD: 1.
The respondent landlord is entitled to have recourse to section 14A of the Delhi Rent Control Act, 1958 for evicting the appellants from the premises in question.
[68 A B] 2.
The second notification dated 14 7 1977 of the Government, without taking away the obligation imposed by the first notification dated 9 9 75 on Government employees owning houses in their own names or in the name of any other member of their families, within the limits of their place of posting, vacate the Government accommodation within three months from 1st of October, 1975, has given an option to those employees to continue to occupy the Government accommodation subject to the obligation mentioned in the second notification, namely, that the house owning Government employee will have to pay normal rent for the Government accommodation if the income from his own house does not exceed Rs. 1,000 per mensem half the market rent if the 54 income from his own house exceeds Rs. 1,000 per mensem but does not exceed Rs. 2,000/ per mensem and full market rent if the income from his house is above Rs. 2,000 per mensem with effect from 1 6 1977.
[64 C E] 3.
In the present case, (i) even apart from the first notification dated 9 9 1975 which is general in nature and has been modified by the second notification dated 14 7 1977 there is the special order dated 22 1 1976 which required the respondent to vacate the Government accommodation by 31 12 1975, failing which he is to pay market rent with effect from 1 1 1976: (ii) the market rent/licence fee which the respondent had to pay for the Government accommodation on the date of institution of the Eviction Petition was Rs. 1,448 per mensem and it had been increased to Rs. 1,543 per mensem and further enhanced to Rs. 2,898 per mensem by the letter dated 17/18 7 1981 of the Assistant Director of Estates addressed to the respondent: (iii) there is nothing on record to show that the obligation imposed upon respondent by the first notification to vacate the Government accommodation within three months from 1st of October, 1975 and by the special order dated 22 1 1976 by 31st December, 1975 has been withdrawn; (iv) the respondent has an option to continue to occupy the Government accommodation subject to certain obligations contained in the two notifications without vacating the Government accommodation within a period of three months from 1st of October, 1975 and (v) it is not open to the appellants to compel the respondent to exercise his option and continue to occupy the Government accommodation in order that he may continue to occupy the premises in question as the tenant.
[64 E H, 65 A B] Busching Schmitz Private Ltd. vs P.T. Menghani and Anr., ; referred to.
K.D. Singh vs Shri Hari Babu Kanwal, , overruled.
J.L. Paul vs Ranjit Singh, , approved.


judgement:
Civil Appeals Nos.
2197 2199 of 1969.
From the judgment and order dated the 16th February, 1965 of the Madras High Court in Civil Revision Petition Nos.
2399, 2400 & 2401 of 1961.
P. Govindan Nair, K. J. John and Mrs. Bady Krishnan for the Appellants .
M. Natesan, Mrs. J.Ramachandran and K. Ram Kumar for the Respondents.
The following Judgments were delivered: DESAI, J. Respondents in each of these appeals are the landlords of the land more particularly described in the three different petitions filed by them in the Court of the Revenue Divisional Officer, Namakkal in Tamil Nadu State seeking to evict tenants of 150 different parcels of land on the allegation that the concerned tenants were in arrears of rent for the years 1958 59, 1959 60 and 1960 61.
The tenants who are appellants in these three appeals appeared in the respective petitions and contested the same on diverse grounds but the only one now surviving at this stage is; whether in view of the language employed in section 3, 4(a) and (b) of the Madras (now Tamil Nadu) Cultivating Tenants Protection Act, 1955 ( 'Act for short), the Revenue Divisional officer erred in passing a composite order for payment of rent found to be in arrears within the time prescribed by him and on default, without any further proceeding, directing eviction of the tenants.
The respondents purchased the land cultivated by the tenants in each of the petitions under sale deeds Ext.
P 6 dated January 22, 1960 and Ext.
P 7 dated March 9, 1960, from the erstwhile owner of the land one Nachayammal.
Subsequently by the deed of assignment Ext.
P 5 dated 5th December, 1960, Nachayammal, the vendor of the respondents assigned the rent in arrears for the period 1958 59 and 1959 60 to the respondents.
By the time, action in each case was commenced, according to the respondents landlords rent for the year 1960 61 had become due and payable The respondents accordingly filed C.T.P.A. Nos. 1, 2 and 3 of 1961 against the respective tenants on January 2, 1951, for eviction of the tenants on the ground that they were in arrears of rent due and payable for the years 1958 59, 1959 60 and 1960 61.
The Revenue Divisional Officer overruled all the contentions of the appellants tenants in each case and held that the tenants were in arrears of rent for the aforementioned three years and that they were liable to pay the same.
It was further held that since by the deed of assignment, previous landlord assigned the arrears of rent for two years 1958 59 and 1959 60 in favour of the respondents, they were not only entitled to commence the action for recovery of arrears of rent due and payable to the previous landlord but they were also entitled to evict the tenants for failure to pay rent in arrears.
Having recorded these findings the Revenue Divisional Officer passed identical order in each case with variation in figures.
only one order may be extracted to focus the attention on the controversy now brought to this Court.
In C.T.P.A. No. 1/61 the following final order was made: "In view of my findings above I hold that the respondents are in arrears of rent to the extent of Rs. 2,850 for the years 1958 59, 1959 60 and 1960 61 to the petitioners.
I 151 direct under section 3, 4(a) that this amount be paid to the petitioners within six weeks from the date of this order failing which they shall be evicted from the suit lands.
" This order was made on November 6, 1961.
The tenants were, therefore, under an obligation to pay the arrears found due by December 18,1961, to qualify for the protection of the Act.
Admittedly the tenants did not deposit the arrears found due by the Revenue Divisional Officer but filed three Civil Revision Petitions on December 11, 1961 in the High Court.
While admitting the revision petitions on December 15, 1961, the High Court granted conditional stay directing that the rent found in arrears be deposited within the time set out in the order of the High Court.
A dispute appears to have been raised about the deposit made by the tenants whereupon the High Court on May 2, 1962, directed that an additional amount of Rs. 950 be deposited by the tenants within the time prescribed by it and it is conceded that the conditional orders have been fully complied with.
The most important contention that engaged the attention of the High Court at the hearing of the Revision Petitions was whether the Revenue Divisional Officer was in error in passing a composite order whereby he determined the amount of rent in arrears and after specifying the time within which the amount in arrears should be paid up, prescribed the consequences of failure to act within the prescribed time, namely, that the tenants would be evicted.
The High Court noticed some of its own conflicting decisions bearing on the topic but ultimately held that the view taken by Srinivasan, J. in Venkitaswami Naicker vs Ramaswami Naicker, in which it was held as under, was correct: "Having regard to the object of the enactment it is clear that the law empowers the Revenue Divisional Officer to grant a reasonable time to the tenant to pay the arrears in order to avoid eviction.
There may be a variety of circumstances by reason of which the tenant might find it difficult to comply with the direction to deposit the arrears by the date fixed.
If the date so fixed initially is to be an inflexible and unalterable date, it is bound to work considerable hardship upon the tenants.
It would be a mechanical application of the provision of the section for the purpose of eviction.
The object of the section is to avoid 152 eviction wherever possible and not insist upon eviction for such reasons as obtain in the case.
" Having noticed the law as indicated in the passage extracted, the High Court observed that the order made by the Revenue Divisional Officer was not one for eviction.
A further unqualified order has to be passed by the Revenue Divisional Officer directing the eviction But at a later stage in the judgment the High Court appears to have taken a somersault when it observed that in the case before it the High Court found nothing wrong in the order which the Revenue Divisional Officer had passed.
In other words, the composite order was held to be legal and once the revision petitions filed by the tenants were dismissed by the High Court, the order passed by the Revenue Divisional Officer would immediately come into operation.
With respect our task became none too easy to wade through the irreconcilably contradictory approach of the High Court.
Ultimately the High Court dismissed the three revision petitions.
Hence these three appeals by certificate.
The object behind enacting the Act clearly manifests itself by reference to its long title which reads: "An Act for the protection from eviction of cultivating tenants in certain areas in the State of Madras.
" It was a beneficient legislation for granting security or tenure to cultivating tenants of agricultural lands.
It is a well settled canon of construction that in construing the provisions of such enactments the court should adopt that construction which advances, fulfils and furthers the object of the Act rather than the one which would defeat the same and render the protection illusory.
It is not in dispute that the tenants in each of these appeals are cultivating tenants and the lands of which they are tenants are lands covered by the Act.
They are sought to be evicted on the only ground that they have committed default in payment of rent payable from year to year for a period of three years.
Mr. Natesan learned counsel who appeared for the respondents urged that if the Revenue Divisional Officer has a discretion to grant time to the defaulting tenant to repair the default, there would be nothing illegal in granting time and simultaneously providing for consequence of default.
This contention may be examined from three independent angles; 153 (1) Has Revenue Divisional Officer a discretion to grant time after being satisfied that a default is committed, to repair the default within the time considered reason able by him and so ordered by him ? (2) Has he a discretion to further extend the time if the defaulting tenant is unable to repair the default within the time fixed by him ? (3) What is the impact of answer of the aforementioned two questions on his jurisdiction to pass a composite order ? Section 3 and the relevant sub sections read as under: 3(1) Subject to the next succeeding sub sections, no cultivating tenant shall be evicted from his holding or any part thereof, by or at the instance of his landlord, whether in execution of a decree or order of a court or otherwise; X X X (4)(a) "Every landlord seeking to evict A cultivating tenant failing under sub section (2) shall, whether or not there is an order or decree of a court for the eviction of such cultivating tenant, make an application to the Revenue Divisional Officer and such application shall bear a Court fee stamp of one rupee." (4)(b) on receipt of such application, the Revenue Divisional Officer shall, after giving a reasonable opportunity to the landlord and the cultivating tenant to make their representations.
hold a summary enquiry into the matter and pass an order either allowing the application or dismissing it and in a case falling under clause (a) or clause (aa) of sub section (2) in which the tenant had not availed of the provisions contained in sub section (3), 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 such costs as he may direct.
If the cultivating tenant deposits the sum as directed, he shall be deemed to have paid the rent under sub section 3(b).
154 If the cultivating tenant fails to deposit the sum as directed, the Revenue Divisional Officer shall pass an order for eviction.
" Section 3 of the Act places an embargo on the eviction of a cultivating tenant and the protection extends to rendering a decree or order of a court for eviction nugatory.
There is an enabling provision in sub section (4)(a) of section 3 which enables the landlord to seek eviction of a cultivating tenant on the ground which may be available to him under the Act, When such an application is made, clause (b) of sub section (4) prescribes the procedure to be followed by the Revenue Divisional Officer.
The Officer concerned has to, (i) give an opportunity both to the landlord and the cultivating tenant to make a representation; (ii) hold a summary enquiry into the matter to determine the rent in arrears.
After having determined the rent in arrears the Revenue Divisional Officer has to further enquire the relative circumstances of the landlord and the cultivating tenant and the circumstances which have a bearing on the issues are the circumstances relatable to the need of the landlord for rent and the present paying capacity of the tenant.
After taking into consideration the circumstances of both the landlord and the tenant thus ascertained the Revenue Divisional Officer has to decide what length of time has to be given to the tenant to deposit the rent found in arrears and at that stage the proceeding must stop.
It is something like a preliminary issue to be determined because after a finding is recorded that the tenant is in arrears and the amount of arrears is determined, the Revenue Divisional Officer is under a statutory obligation to grant time to deposit the arrears.
The section grants locus poenitentiae to a tenant who has committed default in payment of rent.
Granting of the time is not a concession dependent upon the sweet will of the Revenue Divisional Officer.
Granting time to deposit the arrears is statutory obligation cast on the Revenue Divisional Officer.
He has a discretion in determining the length of time and this discretion is to be exercised judicially based upon objective facts ascertained in the inquiry relatable to the circumstances of the landlord and the tenant.
In the context in which the expression 'relative circumstances of the landlord and the cultivating tenant is used clearly manifests the legislative intention that the circumstances of the landlord for recovering arrears of rent which may indicate his urgent need for the money or if the rent is in the crop share, the crop, and the relative circumstance of the tenant would be his present financial position to repair the default.
On both sides there can be number of circumstances one can envi 155 sage which, if properly brought to the notice of the Revenue Divisional Officer, would influence his judicial decision as to the length of time to be granted by him for the deposit of arrears.
Where the landlord is a big landlord to whom payment of rent by one tenant of a small amount would not make any difference and the tenant is a needy tenant who was so involved in such depressing circumstances that he could not pay even the small amount of rent in time and when such circumstances are judicially appraised, the Revenue Divisional Officer may shorten or lengthen the time to be given for depositing the amount so as to repair the default.
It is not open to the Revenue Divisional Officer to arbitrarily fix time.
His order fixing the time must show on the face of record that he made the necessary enquiry as to the relative circumstances of the landlord and the cultivating tenant, and after evaluating the circumstances placed before him by both the sides he would determine the length of time and the order fixing the time must at least give some indication as to what weighed with him in fixing the certain time which he fixed in a given case.
The proceedings before the Revenue Divisional Officer are judicial proceeding.
For the purpose of the proceedings under section 3 of the Act, the Revenue Divisional Officer is a Court as provided in section 6(b) of the Act and a revision petition would lie to the High Court against the order of the Revenue Divisional Officer.
If the proceedings are judicial and there is a lis between the parties, the rival contentions have to be properly adjudicated upon the evidence placed before the Court.
Before the Revenue Divisional Officer can make an order for eviction of a cultivating tenant he has, as a matter of 'statutory obligation, to determine the issue which arise in the case under sub section (4)(b) of section 3, record a finding on each of them and make a speaking order.
By the very language of sub section (4)(b) of section 3, the Revenue Divisional Officer has to grant time to the cultivating tenant to deposit the arrears found due by him and the length of time is to be relatable to the circumstances of the landlord and the cultivating tenant.
After determining the arrears and ascertaining the circumstances of landlord and tenant and fixing the length of time to pay the arrears, the proceeding at that stage must stop.
This is implicit in sub section (4)(b) of section 3.
The scheme of the Act is that merely on determination of rent in arrears the Revenue Divisional Officer is not to conclude that there is such default which has become irreparable and that he is 156 under an obligation to evict the tenant.
In fact, the statute grants locus poeniteniae to the tenant by making it obligatory upon the Revenue Divisional Officer to grant some time to the tenant to repair the default.
If after the time so granted expires and the tenant fails to comply with the order calling upon him to deposit the arrears there would be a default which may become irreparable and eviction may follow.
Till then there is no jurisdiction in the Revenue Divisional Officer to direct eviction.
In fact the High Court itself has taken this very view when it observed that the view taken by Srinivasan, J. was the correct one having regard to the avowed object of the Act, namely, preventing unreasonable eviction and affording protection to the tenants to retain the holdings so long as interests of the landlord in the matter of the prompt payment of rent are safeguarded.
At another stage, the High Court observed that the time that has to be given or allowed to the tenant to deposit the arrears is to be determined by considering what is just and reasonable having regard to the relative circumstances of both the parties and by its very nature this must be elastic and flexible and not fixed or final.
In other words, the High Court was of the opinion that the composite order is not contemplated by sub section (4)(b) of section 3.
If sub section (4)(b) of section 3 does not contemplate passing of a composite order, what is the correct procedure that must be followed in a proceeding under that sub section ? That is self evident from the language employed in that sub section.
After the application is received and the parties are summoned and representations are heard, the Court must determine whether the cultivating tenant is in arrears of rent.
If the answer is in the affirmative, it has to determine the arrears in terms of its money value.
Thereafter, the Revenue Divisional Officer must ascertain relative circumstances of the landlord and the tenant and as indicated hereinabove, these circumstances must be relatable to the need of the landlord for prompt payment and the present prevalent circumstances of the tenant relatable to his paying capacity.
Thousand and one circumstances can be envisaged which may have a bearing on this aspect.
After these circumstances are properly adjudicated and evaluated the Revenue Divisional Officer must fix time within which the tenant should pay the amount and repair the default.
It was seriously contended by Mr. Natesan as to what is there in the scheme of the Act and especially in the language of sub 157 section (4)(b) which would make it impermissible for the Revenue Divisional Officer simultaneously passing an order determining rent in arrears and directing that if the tenant fails to pay the amount within the time prescribed by the Court eviction shall follow as a matter of course.
If this construction of sub section (4)(b) as canvassed by Mr. Natesan is adopted the Revenue Divisional Officer would be denying to himself a more beneficial jurisdiction conferred upon him, namely, to extend the time for making the payment if an evaluation of circumstances so placed before him he is satisfied that a further extension is not only just but not to grant it would be harsh and unjust and would be defeating the object for which the Act was enacted.
An analogous provision may be noticed, It is a well accepted principle statutorily recognised in section 148 of the Code of Civil Procedure that where a period is fixed or granted by the court for doing any act prescribed or allowed by the Code, Court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may expire.
If a Court in exercise of the jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it.
Passing a composite order would be acting in a disregard of the jurisdiction in that while directing time simultaneously the court denies to itself the jurisdiction to extend time.
The principle of equity is that when some circumstances are to be taken into account for fixing a length of time within which a certain action is to be taken, the Court retains to itself the jurisdiction to re examine the alteration or modification of circumstances which may necessitated extension of time.
If the Court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of a negative provision, it undoubtedly enjoys.
Conditional orders, were held by this Court to be in terrorem, so that dilatory litigants might put themselves in order and avoid delay, but they do not completely estop a court from taking note of events and circumstances which happen within the time fixed.
In Mahant Ram Das vs Ganga Das, in the context of a failure to pay requisite court fee within the time allowed by the Court subject to the condition order that failure to pay would result in dismissal of the appeal, this Court observed as under: "How undesirable it is to fix time peremptorily for a 158 future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal.
These orders turn out, often enough to be expedient.
Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay.
They do not, however, completely, estop a court from taking note of events and circumstances which happen within the time fixed.
For example it cannot be said that, if the appellant had started with the full money order to be paid and came well it time but was set upon and robbed by thieves on the day previous, he could not ask for extension of time, or that the Court was powerless to extend it.
Such order are not like the law of the Medes and the Persians.
" The danger inherent in passing conditional orders becomes self evident because that by itself may result in taking away jurisdiction conferred on the court for just decision of the case The true purport of conditional order is that such orders merely create something like a guarantee or sanction for obedience of the courts order but would not take away the Court 's jurisdiction to act according to the mandate of the statute or on relevant equitable considerations if the statute does not deny such consideration.
In order to avoid subsequent controversy sub section (4)(b) envisages proceedings in two stages and that by itself inhibits passing of a conditional order.
It is, therefore, not possible to accept the construction canvassed for on behalf of the respondents.
As analysed the scheme of sub section (4)(b) of section 3 requires the Revenue Divisional Officer to determine, arrears, ascertain the exact amount payable by the tenant, fix the time for payment after taking into consideration the relevant circumstances of the landlord and the cultivating tenant and then stop there.
There is no power in the Revenue Divisional Officer at that stage to pass an order for eviction.
If the tenant deposits the amount or pays up the rent and repairs the default within the time fixed by the Revenue Divisional Officer, on an application of the tenant pointing out this fact, the original application of the landlord for eviction would have to be dismissed.
If on the other hand the landlord points out to the Revenue Divisional Officer that the cultivating tenant has failed 159 to comply with the order made by the Court and if after notice to the tenant and in the absence of a request for extension of time which again may be judicially examined, the default becomes wilful or contumacious.
It is at that stage and at that stage alone that the Revenue Divisional Officer enjoys jurisdiction to order eviction.
Such jurisdiction improperly exercised at an earlier stage would render the order without jurisdiction.
Surprisingly the High Court reached the same conclusion but failed to follow it.
In all the three cases the Revenue Divisional Officer determined the arrears of rent and gave six weeks ' time to pay the same.
Within the period of six weeks the cultivating tenants in each case approached the High Court and obtained conditional stay, the condition being to deposit the rent in arrears within the time prescribed by the High Court and these orders have been complied with.
If the Revenue Divisional Officer had not denied to himself the further jurisdiction to examine the situation as it emerged on the date of expiry of the period prescribed by him, it would have been brought to his notice that the eviction was unjustified in view of the orders made by the High Court.
But as the order became effective according to the Revenue Divisional Officer on the mere failure to deposit the arrears found due by him, the order of eviction without jurisdiction became effective.
The High Court held that there was no order of eviction but affirmed the order of the Revenue Divisional Officer as one for eviction.
The question then is: What should be my approach in these appeals ? Frankly speaking, on my finding that the latter part of the Revenue Divisional Officer 's order that 'in the event of failure to deposit the amount within the time prescribed eviction would follow, ' being without jurisdiction, I would be required to remand the matter to the Revenue Divisional Officer to proceed from that stage.
However, I cannot overlook the fact that the initial proceedings before the Revenue Divisional Officer started in 1961.
Two decades have rolled by.
The ground of eviction was a technical ground of default repaired by the orders of the High Court when the rent found in arrears was deposited.
The landlords have been paid, may be not specifically within the time prescribed by the Revenue Divisional Officer but within the time prescribed by the High Court.
It is not necessary to decide in this case whether the time prescribed by the Revenue Divisional Officer, if challenged in the superior court i.e. the High Court, the High Court would have jurisdiction to prescribe its own time calling upon the tenant to deposit the amount to repair the default.
That question be kept open but in the facts of this case the amount having been deposited 160 way back in 1961 62, it would be merely adding to the agony of the parties for a very technical consideration to remit the case to the Revenue Divisional Officer.
In the facts of this case it would be an idle formality to remit the case to the Revenue Divisional Officer for the additional reason that he will have to fix a fresh date for deposit of the amount and the amount has already been deposited 19 to 20 years back.
Having regard to all the circumstances of the case and the inevitable consequence flowing from the passage of time, I do not consider it just and proper to remit the case to the Revenue Divisional Officer.
In my opinion the tenants have qualified for the protection of the Act and they were not liable to be evicted.
Accordingly, all the three appeals are allowed and the order for eviction of the tenants in each case is set aside but in the circumstances of the case with no order as to costs.
KOSHAL, J. I have had the advantage of going through the judgment prepared by my learned brother, Desai, J., and find myself in agreement with him on the following points: (a) When the Revenue Divisional Officer (RDO for short) allows time to a cultivating tenant for depositing the arrears of rent in pursuance of the provisions of clause (b) of sub section (4) of section 3 of the Act, he cannot simultaneously pass a conditional order of eviction which is to take effect on a default to occur in future.
An order of that type can, in terms of this section, only be passed 'if the cultivating tenants fails to deposit the sum as directed '.
The orders of the RDO directing eviction and covered by these appeals were thus passed in contravention of the express provisions of the clause and are thus without jurisdiction.
(b) The orders of the RDO directing the deposit of rent having been actually complied with about a couple of decades back it is no use remitting the case to him and it would serve the ends of justice if we declare that the tenants are qualified for the protection envisaged by the Act against their eviction.
(c) All the three appeals merit acceptance and are allowed with no order as to costs, the order for eviction of the tenant in each case being set aside.
161 2.
I may, however, observe that it is wholly unnecessary for the decision of the appeals to determine the question as to whether it is incumbent on the RDO, while acting in pursuance of the provisions of clause (b) above mentioned, to grant time to a tenant who has been found by him to be in arrears of rent.
For one thing, that questions did not form the subject matter of argument on either side at the hearing of the appeals, the only point really canvassed before us being that when the RDO grants time to the tenant he cannot simultaneously pass an order of eviction which is to take effect in future and which he can pass only after the default in making the deposit is committed.
Secondly, that question does not arise in these appeals as in each of the appeals before us the RDO did grant time to the tenants concerned to deposit arrears of rent.
As it is, Desai, J. has arrived at a categorical conclusion that according to clause (b) aforesaid it is obligatory on the RDO to grant time to the tenant for depositing the arrears in all cases falling under clause (a) or clause (aa) of sub section (2) of section 3 of the Act in which the tenant has not availed of the provisions contained in subsection (3) of that section.
Being unable to subscribe to that conclusion I give below my reasons for holding a contrary opinion.
The relevant portion of section 3 is set out hereunder: "3(1) Subject to the next succeeding sub sections, no cultivating tenant shall be evicted from his holding or any part thereof, by or at the instance of his Landlord, whether in execution of a decree or order of a Court or otherwise (2) Subject to the next succeeding sub section, sub section (1) shall not apply to a cultivating tenant (a) who, in the areas where. . . . if in arrear at the commencement of this Act, with respect to the rent payable to the landlord, does not pay such rent within six weeks after such commencement or who in respect of rent payable to the landlord after the commencement of this Act, does not pay such rent within a month after such rent becomes due; or (aa) who, in the other areas of the State of Madras, if in arrear at the commencement of this Act, with respect to the rent payable to the landlord and accrued due subsequent to the 31st March 1954, 162 does not pay such rent within a month after such commencement, or who in respect of rent payable to the landlord after such commencement, does not pay such rent within a month after such rent becomes due; or (b) xx xx xx (c) xx xx xx (d) xx xx xx Explanation I xx xx xx Explanation II xx xx xx Explanation III xx xx xx Explanation IV xx xx xx "(3)(a) A cultivating tenant may deposit in Court the rent or, if the rent be payable in kind, its market value on the date of deposit, to the account of the landlord (i) in the case of rent accrued due subsequent to the 31st March 1954, within a month after the commencement of this Act; (ii) in the case of rent accrued due after the commencement of this Act, within a month after the date on which the rent accrued due.
"(b) The Court shall cause notice of the deposit to be issued to the landlord and determine, after a summary enquiry, whether the amount deposited represents the correct amount of rent due from the cultivating tenant.
If the Court finds that any further sum is due, it shall allow the cultivating tenant such time as it may consider just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing such further sum inclusive of such costs as the Court may allow.
If the Court adjudges that no further sum is due, or if the cultivating tenant deposits within the time allowed such further sum as is ordered by the Court, the cultivating tenant shall be deemed to have paid the rent within the period specified in the last foregoing sub section.
If, having to deposit a further sum, the cultivating tenant fails to do so within the time allowed by the Court, the landlord 163 may evict the cultivating tenant as provided in sub A section (4). "(c) xx xx xx Explanation I xx xx xx" "(4)(a) Every landlord seeking to evict a cultivating tenant falling under sub section (2) shall, whether or not there is an order or decree of a court for the eviction of such cultivating tenant, make an application to the Revenue Divisional officer and such application shall bear a court fee stamp of one rupee.
(b) on receipt of such application, the Revenue Divisional officer shall, after giving a reasonable opportunity to the landlord and the cultivating tenant to make their representations.
hold a summary enquiry into the matter and pass an order either allowing the application or dismissing it and in a case falling under clause (a) or clause (aa) of sub section (2) in which the tenant had not availed of the provisions contained in sub section (3), 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 such costs as the may direct.
If the cultivating tenant deposits the sum as directed, he shall be deemed to have paid the rent under sub section (3) (b).
If the cultivating tenant.
fails to deposit the sum as directed, the Revenue Divisional officer shall pass an order for eviction.
" An analysis of the section clearly leads to certain indisputable propositions.
Sub section (I) creates a bar against the eviction of a cultivating tenant from his holding or any part thereof, by or at the instance of this landlord, even though the latter seeks to do so in execution of a decree or order of a Court.
This bar is subject only to the provisions of sub section (2), (3) and (4).
Sub section (2) enacts an exception to sub section (I) and lays down inter alia that sub section (I) shall not apply to a cultivating tenant who conforms to the description in clause (a) or (aa) of sub section (2).
Both the clauses last mentioned cover tenants who are in arrears in regard to the payment of rent at the commencement of the Act or who fail to pay rent falling due after such commencement within a month 164 after its becoming due.
Sub section (3) enables a cultivating tenant to deposit arrears of rent in Court and further provides that after notice of such deposit has been given to the landlord, the Court would embark on a summary inquiry and then adjudge whether any further sum is due to the landlord.
If the Court finds that a further sum is due, "it shall allow the cultivating tenant such time as it may consider just and reasonable having regard to the relative circumstances of the landlord and the cultivating tenant for depositing such further sum inclusive of such costs as the Court may allow".
If the cultivating tenant fails to pay the sum determined by the Court to be due under sub section (3) the landlord "may" evict the cultivating tenant as provided in sub section (4).
Sub section (4) then states that a landlord seeking to evict a cultivating tenant falling under sub section (2) shall make an application to the RDO who shall, after giving a reasonable opportunity to the landlord and the cultivating tenant to make their representations, hold a summary inquiry into the matter and pass an order either allowing the application or dismissing it.
The sub section further provides that if the case falls under clause (a) or (aa) of sub section (2) in which the tenant has not avail of the provisions contained in subsection (3) the RDO may allow the cultivating tenant such time as he considers just and reasonable having regard. . 4.
Now as I read sub section (4), it gives the RDO power either to allow the application of the landlord or to dismiss it after he has held a summary enquiry into the matter.
If the application is allowed an order of eviction has to be passed.
If it is dismissed the proceedings again come to an end.
However, if the ground of eviction is non payment of rent, the RDO is closed with power to allow the cultivating tenant to deposit the arrears and costs as directed.
The power is discretionary and, while exercising the same, it is not incumbent on the RDO to grant time.
If the legislature intended to make it obligatory on the part of the RDo to fix a time for deposit of the arrears in all cases covered by clause (a) or clause (aa) of sub section (2) there is no reason why it should have used the word "may" in relation to the grant of time.
Support for this view is available in clause (b) of sub section (3) wherein, the legislature has directed: "If the Court finds that any sum is due it shall allow the cultivating tenant such time as it may consider just and reasonable. " (emphasis supplied) 165 In this situation it must be held that while the opportunity of depositing the arrears of rent cannot be denied to a cultivating tenant during the course of proceedings under sub section (3), the same is not available as of right under clause (b) of sub section 4.
The difference in the language used by the legislature is significant and not without purpose.
The intention of the legislature appears to be that normally a defaulting tenant must seek the help of the Court all by himself and that if he does so he must be protected; but that a defaulting tenant who waits for payment of rent till he is sought to be evicted by the landlord is not necessarily entitled to the same protection.
Circumstances may exist which may place him at par with a tenant covered by sub section (3) but then it may not necessarily be so.
That is why it is left to the discretion of the .
C RDo to grant time to the cultivating tenant or to deny him that opportunity.
An example of a case in which no time should be allowed would be that of a tenant who, although in affluent circumstances at all relevant point of time, has failed to make payment of rent year after year in spite of repeated demands from an otherwise indigent landlord and whose conduct is, therefore, contumacious calling for no sympathy or concession.
The extension to him of the same facility which is afforded to a willing tenant under sub section (3) would be uncalled for and in fact unjust.
Nor do I find why the word "may" occurring in clause (b) of sub section (4) be not given its ordinary meaning as denoting the conferment of a discretion on the RDo and be equated with "shall" so as to make it obligatory on him to grant time to the cultivating tenant.
Subject to the disagreement expressed by me above I concur with the judgment of Desai, J. MISRA, J.

dataset_name: IN-Abs

summary/full:
The appellants in the appeals were cultivating tenants in occupation of different parcels of land which were owned by the respondents.
The respondents purchased these lands from the erstwhile owner, who also executed a deed of assignment assigning the rent in arrears of the tenants for the periods 1958 59 and 1959 60.
The respondents filed eviction petitions against the appellants for eviction on the ground that they were in arrears of rent due and payable for the years 1958 59, 1959 60 and 1960 61, which were contested on diverse grounds.
The Revenue Divisional Officer over ruled all the contentions of the tenants and held that the tenants were in arrears of rent for the aforementioned three years and were liable to pay the same.
He further held that since the previous landlord assigned the arrears of rent for the two years, 1958 59 and 1959 60, the respondents were not only entitled to commence action for recovery of arrears of rent due and payable to the previous landlord but they were also entitled to evict the tenants for failure to pay the rent in arrears.
The tenants were directed to pay the arrears within six weeks, failing which they were to be evicted.
In the Civil Revision Petitions by the tenants the High Court directed that the rent found in arrears be deposited, which order was complied with.
The High Court found that the Revenue Divisional Officer was in error in passing a composite order, whereby he determined the amount of arrears and after specifying the time within which the amount of arrears should be paid up prescribed the consequences of failure namely that the tenants should be evicted: nevertheless held that the orders made by the Revenue Divisional Officer were not one for eviction and dismissed the revision petitions.
In the appeals to this Court it was contended on behalf of the appellants that when the Revenue Divisional Officer grants time to the tenant to deposit the arrears of rent he cannot simultaneously pass an order of eviction which is to take effect future and such an order can be passed only after the default in making the deposit is committed.
On behalf of the respondents it was contended that the Revenue Divisional Officer has a discretion to grant time to the 147 defaulting tenant to repair the default, and therefore there would be nothing illegal in granting time and simultaneously providing for consequence of default.
Allowing the appeals ^ HELD: [By the Court] 1.
When the Revenue Divisional Officer allows time to a cultivating tenant for depositing the arrears of rent in pursuance of the provisions of clause (b) of sub section (4) of Section 3 of the Act, he cannot simultaneously pass a conditional order of eviction which is to take effect on a default to occur in future.
An order to evict can, in terms of the section, only be passed 'if the cultivating tenant fails to deposit the sum as directed '.
[160 E; 158 G 159 B] 2.
The orders of the Revenue Divisional Officer directing eviction, were passed in contravention of the express provision of clause (b) of sub section (4) of Section 3 of the Act and are therefore, without jurisdiction.
[160 F, C] 3.
The order of the Revenue 'Divisional Officer directing deposit of rent having been actually complied with about a couple of decades back it is no use remitting the case to him.
The ends of justice would be served if it is declared that the tenants are qualified for the protection envisaged by the Act against their eviction.
[160 G H, A B] [per D.A. Desai J.] 1.
Section 3 of the Act places an embargo on the eviction of a cultivating tenant and the protection extends to rendering a decree or order of a court for eviction nugatory.
An enabling provision in sub section (4)(a) of Section 3 enables the landlord to seek eviction of a cultivating tenant on grounds available to him under the Act.
[154 B] 2.
When an application for eviction is made, clause (b) of sub section (4) prescribes the procedure to be followed by the l Revenue Divisional Officer.
The officer has to, (i) give an opportunity both to the landlord and the cultivating tenant to make a representation, (ii) hold a summary enquiry into the matter to determine the rent in arrears.
After having determined the rent in arrears the Revenue Divisional Officer has to further enquire the relevant circumstances of the landlord and the cultivating tenant and the circumstances which have a bearing on the issues relatable to the need of the landlord for rent and the paying capacity of the tenant.
Thereafter the Revenue Divisional Officer has to decide what length of time has to be given to the tenant to deposit the rent found in arrears and at that stage the proceeding must stop.
It is something like a preliminary issue to be determined because after a finding is recorded that the tenant is in arrears and the amount of arrears is determined the Revenue Divisional Officer is under a statutory obligation to grant time to deposit arrears.
[154 C E] 3.
The section grants locus poenitentiae to a tenant who has committed default in payment of rent.
Granting of the time is not a concession dependent upon the sweet will of the Revenue Divisional Officer, it is a statutory obligation 148 cast on the Revenue Divisional Officer.
He has a discretion in determining the length of time and this discretion is to be exercised judicially based upon objective facts ascertained in the inquiry relatable to the circumstances of the landlord and the tenant.
[154 G] 4.
The proceedings before the Revenue Divisional Officer under section 3 of the Act are judicial proceedings.
The Revenue Divisional Officer is a Court a as provided in section 6(b) of the A ct and a revision petition lies to the High Court against his order.
[155 D] 5.
If the proceedings are judicial and there is a lis between the parties, the rival contentions have to be properly adjudicated upon the evidence placed before the Court.
Before the Revenue Divisional Officer can make an order for eviction of a cultivating tenant he has as a matter of statutory obligation to determine the issues which arise in the case under sub section (4)(b) of section 3, record a finding on each of them and make a speaking order.
The Revenue Divisional Officer has to grant time to the cultivating tenant to deposit the arrears found due by him and the length of time is to be relatable to the circumstances of the landlord and the cultivating tenant.
After determining the arrears and ascertaining the circumstances of the landlord and the tenant and fixing the length of time to pay the arrears the proceedings at that stage must stop.
This is implicit in sub section (4) (b) of section 3.
[155 E H] 6.
If a court in exercise of jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it.
Passing a composite order would be acting in disregard of the jurisdiction in that while granting time simultaneously the court denies to itself the jurisdiction to extend time.
The principle of equity is that when some circumstances are to be taken into account for fixing a length of time within which a certain action is taken, the court retains to itself the jurisdiction to re examine the alteration or modification of circumstances which may necessitate extension of time.
If the Court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of a negative provision, it undoubtedly enjoys.
[157 D F] 7.
Conditional orders are in terrorem, so that dilatory litigants might put themselves in order and avoid delay, but they do not completely estop a court from taking note of events and circumstances which happen within the time fixed.
[157 G] 8.
The danger inherent in passing conditional orders is that it may result in taking away jurisdiction conferred on the court for just decision of the case The true purport of conditional order is that such orders merely create something like a guarantee or sanction for obedience of the court 's order but would not take away the court 's jurisdiction to act according to the mandate of the statute or on relevant equitable considerations if the statute does not deny such considerations.
[155 D E] Mahant Ram Das vs Ganga Das, ; , referred to.
149 [per Koshal & Misra JJ] 1.
Sub section (4) of section 3 gives the Revenue Divisional Officer power either to allow the application of the landlord or to dismiss it after he has held a summary enquiry into the matter.
If the application is allowed, an order of eviction has to be passed.
If it is dismissed the proceedings come to an end.
However, if the ground of eviction is non payment of rent, the Revenue Divisional Officer is clothed with power to allow the cultivating tenant to deposit the arrears and costs, as directed.
The power is discretionary and, while exercising the same, it is not incumbent or the Revenue Divisional Officer to grant time.
[164 E F] 2.
If the legislature intended to make it obligatory on the part of the Revenue Divisional Officer to fix a time for deposit of the arrears in all cases covered by clause (a) and clause (a) of sub section (2) there is no reason why it should have used the word 'may ' in relation to the grant of time.
Clause (b) of sub section (3) provides that "if the court finds that any sum is due it shall allow the cultivating tenant, just and reasonable time. " The difference in the language used by the legislature in clause (aa) of sub section (2) and in clause (b) of sub section (3) is significant and not without purpose.
The intention of the legislature appears to be that normally a defaulting tenant must seek the help of the court all by himself and that if he does so he must be protected but that a defaulting tenant who waits for payment of rent till he is sought to be evicted by the landlord is not necessarily entitled to the same protection.
[164 G 165 B] Circumstances may exist which may place him at par with a tenant covered by sub section (3) but then it may not necessarily be so.
That is why it is left to the discretion of the Revenue Divisional Officer to grant time to the cultivating tenant or to deny him that opportunity.
[165 C]