13 March 1964
Supreme Court


Case number: Appeal (civil) 356 of 1963






DATE OF JUDGMENT: 13/03/1964


CITATION:  1965 AIR  498            1964 SCR  (7) 197

ACT: Madras Cultivating Tenants Protection Act (XXV of 1955),  s. 3 and Madras Cultivating Tenants (Payment of Fair Rent)  Act (XXIV of 1950), s. 7-Scope of. Practice-High Court-Revisional jurisdiction-Interference  by Supreme Court under Art. 136 of Constitution.

HEADNOTE: The  respondent  is a cultivating tenant of  the  appellant. After harvesting he gathered the crops and brought the grain to  the threshing floor.  He measured the crops and  offered 40 per cent of it to the Landlord as rent as provided by the law  but the landlord wanted 60 per cent as his  share.   On the failure of the landlord or his agent to take his legally due share after repeated requests and after information  and complaint   to  the  police  and  revenue  authorities   the respondent removed and sold the crops when he found that the crops would be spoiled by rain.  Thereafter he sent by money order to the landlord the market value of the 40 per cent of the  crops.  The landlord refused to receive the amount  and he  filed  a  petition  under  s.  3(4)(a)  of  the   Madras Cultivating  Tenants Protection Act, 1955 for the  ejectment of  the  respondent before the Revenue  Divisional  Officer. The   Revenue  Divisional  Officer  held  that  though   the respondent was right in insisting on determining only 40 per cent  of  the produce he was not justified in  removing  the crops.   He held that he should have deposited the  rent  in court or paid it to the landlord as provided by law.   Since he had not done these he held that he was not entitled  to invoke the discretionary power of  the  Revenue Divisional  Officer  to  get an extension of  time  for  the deposit  of  rent  and the  officer  therefore  ordered  the ejection of the respondent. A revision petition filed by the respondent before the  High Court was allowed and the order of ejectment was set  aside. The  present  appeal was filed on special leave  granted  by this Court. The  appellant  contends  that  since  the  respondent   has transgressed s. 7 of the Madras Cultivating Tenants (Payment



of  Fair  Rent) Act, 1956 by removing the produce  from  the threshing floor he cannot claim the protection of that  Act. Secondly it was submitted that since the respondent did  not pay  the rent as, contemplated by s. 3(3) of the  Protection Act  he was not entitled to the protection of’ the Act.   It was further contended that the High Court was not  justified in  interfering  with  the exercise  of  discretion  by  the Revenue Divisional Officer. Held:     (i) S. 7 can be transgressed in two ways viz., (1) when  the  tenant does not bring the crop to  the  threshing floor  or  (2) having brought it to the threshing  floor  he removes any portion of it at such time or in such manner’ as to prevent the division thereof at the proper time.  In  the present case it is admitted that the respondent brought  the crop to the threshing floor.  From the proved facts of  this case that the respondent 198 was always prepared for the division of the crops, and  that it  was the insistence of the appellant for 60 per  cent  of the  crops  and  his refusal to accept his  due  share  that prevented  division  and  that,  the  crops  were   actually measured  by  Revenue  Inspector  and  it  was  to   prevent deterioration  of the crops that the respondent removed  it, it is clear that the respondent has not removed the crops to prevent  division.  Therefore it cannot be said  that  there was a transgression of s. 7 on the part of the respondent. (ii) Since  the respondent did not pay the rent  within  the time  and  in  the  way  contemplated  by  s.  3(3)  of  the Protection  Act the case is covered by s. 3(2) of  the  Act. That  gave the appellant a cause of action to apply for  the ejectment of the respondent under s. 3(4) of the  Protection Act.   But even though the appellant was entitled to  apply, the  Revenue Divisional Officer was not bound to  evict  the tenant for cl. (b) of s. 3(4) gives him a discretion to give time   to  the  tenant  to  pay  the  arrears  taking   into consideration  the various circumstances of the  case.   The Revenue   Divisional   Officer  refused  to   exercise   the discretion in favour of the respondent on the ground that he had  not deposited the rent under s. 3(3).   The  discretion under  cl.  (b)  of s. 3(4) comes into play  only  when  the tenant  has  not  deposited  the  rent  under  s.  3(3)  and therefore  the  Revenue  Divisional  Officer  was  wrong  in refusing to exercise his discretion. (iii)     The   Revenue  Divisional  Officer   having   been patently  wrong  in his view of the law if  the  High  Court interfered in the wrong exercise of his discretionary power, this  Court  in  its jurisdiction under Art.  136  will  not interfere with the order of the High Court which is  clearly in the interest of justice.  Secondly the Revenue Divisional Officer had failed to exercise his jurisdiction and the High Court would be justified in interfering with his order  even under s. 115 of the Code of Civil Procedure.

JUDGMENT: CIVIL  APPELLATE JURISDICTION-Civil Appeal No. 356 of  1963. Appeal  by special leave from the judgment and  order  dated October  1960 of the Madras High Court in C.R.P. No. 966  of 1960. M. C. Setalvad and R. Ganapathy Iyer, for the appellant. T. S. Venkataraman, for the respondent. March 13, 1964.  The judgment of the Court was delivered by- WANCHOO,  J.-This  is an appeal by special  leave  from  the judgment  of  the  Madras High Court.  The  appellant  is  a



landlord  in  village Idaikkal, and the  respondent  is  her tenant.  The land in dispute was let by the appellant to the respondent and the rent was fixed partly in kind and  partly in  cash, the tenancy having been created  sometimes  before the  Madras Cultivating Tenants (Payment of Fair Rent)  Act, No.  XXIV of 1956 (hereinafter referred to as the Fair  Rent Act)  came into force.  The agreement as to the  payment  of rent in kind was that the appellant would get 60 per cent of the gross produce, the remainder going to the respondent. 199 The  dispute  out of which this appeal has arisen  arose  in 1959 when the crop for that year was reaped.  The respondent harvested the crop and brought it to the threshing floor  of the  appellant for division and claimed that  the  appellant was only entitled to 40 per cent of the crop as provided  in the  Fair Rent Act.  The appellant’s agent however  demanded 60  per cent as provided in the agreement of  tenancy.   The dispute went on about for ten days while the harvested  crop was lying in the threshing floor.  Consequently, the respon- dent  made an application to the Circle Inspector of  Police complaining that the appellant was delaying the division  of the  produce and preventing the removal of the  respondent’s share,  and  that there was likelihood of a  breach  of  the peace.   Thereupon the police made inquiry into  the  matter and  reported to the Tehsildar that the harvested  crop  was lying in the threshing floor and the agent of the  appellant was  not prepared to divide the produce in  accordance  with the  provisions  of law and was insisting  on  the  division being made according to the agreement.  It was also reported that  the crop was deteriorating and the seeds had begun  to germinate  as the crop was exposed to rain.   Thereupon  the Tehsildar  directed the Revenue Inspector to look  into  the matter and measure the quantity of the produce and note  the gross  yield  and report.  The Revenue  Inspector  thereupon visited the spot on September 27, 1959 after issuing  notice to  the appellant’s agent to be present at the spot for  the purpose of measuring the quantity and determining the yield. The  appellant’s  agent was however absent and  the  Revenue Inspector  made measurements in the presence of the  respon- dent  and some prominent persons of the village in spite  of the absence of the appellant’s agent.  He then sent a report to the Tehsildar giving the result of his measurements.   As however,  the  appellant’s agent was not present,  the  crop could not be divided and the Revenue Inspector gave instruc- tion to the respondent that the crop should not be  removed. It appears however that the respondent removed the crop soon after the Revenue Inspector left.  Thereafter the respondent sent  a  money  order to the appellant for  the  amount  re- presenting  the value of the appellant’s share,  namely,  40 per cent.  It appears that soon after the appellant filed  a criminal complaint of theft against the respondent and  that was dismissed.  Then followed the present petition under  s. 3  (4)(a) of the Madras Cultivating Tenants Protection  Act, No. XXV of 1955, (hereinafter referred to as the  Protection Act) for the ejectment of the respondent before the  Revenue Divisional Officer. The   Revenue  Divisional  Officer  held  that  though   the respondent  was  justified in insisting that  the  appellant should  take only 40 per cent of the produce as provided  by law he 200 was  not justified in removing the crop and that  he  should have proceeded to enforce his rights in the manner  provided by law.  As however the respondent had not chosen to proceed in  that manner, the Revenue Divisional Officer ordered  his



ejectment  refusing to exercise the discretion which lay  in him to give time to the respondent to deposit the arrears of rent in court.  The respondent then went in revision to  the High  Court.  The High Court held that in the  circumstances of  the  case, the Revenue Divisional  Officer  should  have exercised  his discretion in favour of the respondent.   The High  Court  therefore set aside the order of  ejectment  in view  of  the fact that the rent had been deposited  in  the High  Court.   Thereupon  the  appellant  applied  for   and obtained  special leave to appeal from this Court, and  that is how the matter has come up before us. In  the  special  leave petition the  appellant  raised  the contention  that  the Fair Rent Act and the  Protection  Act were  unconstitutional as they placed unreasonable  restric- tions on the appellant’s fundamental rights to hold her pro- perty.  But in the arguments before us, learned counsel  for the appellant has abandoned the attack on the  constitution- ality  of the two Acts and has only contended that the  High Court had no jurisdiction under s. 6-B of the Protection Act to  interfere  with  the order  of  the  Revenue  Divisional Officer.  Before  we consider the contention raised on behalf of  the appellant we may briefly refer to the provisions of the  two Acts,  which  bear on the question raised  before  us.   The Protection   Act  was,  as  its  title  shows,  passed   for protection from eviction of cultivating tenants.  It is  not in  dispute  that the respondent was a  cultivating  tenant. Section  3(1) of the Protection Act lays down that  "subject to  the next succeeding sub-sections, no cultivating  tenant shall  be  evicted  from his holding or  any  part  thereof, during the continuance of this Act, by or at the instance of his landlord, whether in execution of a decree or order of a Court  or otherwise".  The following sub-sections  then  lay down  the conditions under which ejectment can  be  ordered. Sub-section  (2) of s. 3 inter alia lays down that a  tenant will  not  enjoy the protection of sub-s. (1), if he  is  in arrears of rent and has not paid the arrears within the time specified therein.  Sub-section (3) of s. 3 provides that  a cultivating tenant may deposit in court the rent or, if  the rent be payable in kind, its market value on the date of the deposit,  to  the  account of the  landlord.   A  notice  of deposit  is  given by the Court (in which  is  included  the Revenue  Divisional  Officer), and an enquiry is  then  made whether  the amount deposited is correct after  hearing  the landlord  and the tenant.  If there is any  deficiency,  the tenant  is ordered to make good the deficiency-, and  if  he fails  to pay the sum due, the landlord is entitled  to  ask the court 201 for  eviction  in  the manner as  provided  by  sub-s.  (4). Section  3(4)(a)  lays  down the procedure  for  evicting  a tenant.   Under this clause a landlord has to apply  to  the Revenue   Divisional   Officer  and  on  receipt   of   such application,  the Revenue Divisional Officer,  after  giving reasonable  opportunity both to the landlord and the  tenant to  represent their case, holds a summary enquiry  into  the matter  and  decides whether eviction should be  ordered  or not.   Clause  (b)  of  sub-s. (4) of  s.  3  further  gives discretion  to the Revenue Divisional Officer to  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 the Act, including such  costs as  he  may  direct.  It is further  provided  that  if  the cultivating tenant deposits the sum as directed, he shall be



deemed  to have paid the rent.  If however  the  cultivating tenant  fails  to deposit the sum as directed,  the  Revenue Divisional Officer shall pass an order for eviction. Then  we turn to the provisions of the Fair Rent Act,  which are material for present purposes.  We have already  pointed out that the fair rent in the case of wet land with which we are  concerned in the present appeal is 40 per cent ,of  the normal gross produce or its value in money: (see s. 4  (1)). Then  comes s. 7, which provides that "where the produce  to be  shared  is  grain  the sharing  shall  be  done  at  the threshing  floor on which the threshing took place;  and  no portion  of the produce shall be removed therefrom  at  such time  or  in  such manner as to  prevent  the  due  division thereof at the proper time." A combined reading of these provisions of the two Acts shows that in the case of a tenant whose rent is payable in  kind, such tenant has to take the crop to the threshing floor  for division  and such division has to be made at the  threshing floor and no portion of the produce can be removed therefrom so  as to prevent the due division thereof.  But it is  open to a tenant under s. 3 (3) of the Protection Act to  deposit in  court to the account of the landlord where the  rent  is payable  in kind, its market value on the date  of  deposit; and  this  obviously postulates that though the  tenant  has taken  the produce to the threshing floor, the landlord  has not  co-operated in its division.  Clearly if  the  landlord does not co-operate in the division of the crop, the  tenant cannot  allow  it  to  remain  on  the  threshing  floor  to deteriorate  and  that seems to be the reason why  under  s. 3(3)  of  the Protection Act he is allowed  to  deposit  the market value of the rent payable in kind in court, and it is then  for  the court to see whether the  rent  deposited  is correct or not. 202 The  first  question that arises therefore  is  whether  the respondent  has acted in any manner prohibited by  law;  and the main contention of the appellant is that the  respondent has transgressed the provisions of s. 7 of the Fair Rent Act and  so cannot take advantage of the Protection Act.  It  is further contended that the respondent has also  transgressed s. 3(2) of the Protection Act inasmuch as he did not deposit the  arrears of rent within the time allowed thereunder  and was  therefore  liable  to eviction under  s.  3(4)  of  the Protection  Act.  Section 7 of the Fair Rent Act  lays  down that the sharing of the crop shall be done at the  threshing floor  on which the threshing takes place and no portion  of the  produce shall be removed therefrom at such time  or  in such  manner so as to prevent due division thereof.   It  is clear  that  s. 7 can be transgressed in one  of  two  ways; viz.,  (1)  when the tenant does not bring the crop  to  the threshing  floor  at all, or (2) having brought  it  to  the threshing floor he removes any portion of it at such time or in such manner as to prevent the due division thereof at the proper time.  In the present case it is not in dispute  that the respondent brought the crop to the threshing floor  with the  intention  that it may be divided between him  and  the appellant and it is also not in dispute that the tenant  was entitled to have the crop divided according to the Fair Rent Act  and  had  therefore to give only 40  per  cent  to  the appellant as provided thereunder.  It was the appellant  who was  insisting all along through her agent that  she  should get  60  per cent as provided in the agreement  of  tenancy. What happened thereafter has been narrated by us above.  The respondent  approached  the police, and the  report  of  the Police  Inspector shows that he went to the spot  twice;  on



the  first  day  the  appellant’s  agent  told  the   Police Inspector  that he would settle the matter after  consulting the appellant and the agent was asked to come back next  day with   the  appellant’s  instructions.   When   the   Police Inspector came the next day, no settlement could be  arrived at.   Later  when  the Revenue Inspector  was  sent  by  the Tehsildar,  the  agent of the appellant did  not  appear  in spite   of   notice,  and’  the   Revenue   Inspector   took measurements  of the crop and made a report thereof  to  the Tehsildar.   It was after the crop had been measured by  the Revenue Inspector that it was removed by the respondent.  In these circumstances we are of opinion that it cannot be said that the crop was removed from the threshing floor in  order to  prevent  due division thereof at the  proper  time;  the respondent was always prepared for the division of the  crop as  provided  by law, and the removal by him cannot  in  the circumstances  be said to be for the purpose  of  preventing due division of the crop particularly when the  measurements had  also  taken place.  Removal of crop by the  tenant  can fall within the meaning. 203 of  the section only if it is done for the  purpose  therein specified;  and it is plain that the removal in the  present case was clearly not for that purpose.  We are therefore  of opinion  that  on the facts of this case it cannot  be  said that  there was any transgression of s. 7 of the  Fair  Rent Act. It  is  further urged on behalf of the appellant  that  even though the respondent might have been justified in  removing 60 per cent of the crop which was his share, his removal  of the  appellant’s  share was a transgression of s. 7  of  the Act.   We cannot accept this.  Section 7 forbids removal  of any portion of the crop.  There is no question therefore  of the  share  of the appellant or the respondent,  either  the removal as a whole will transgress s. 7 or it will not;  and that  will depend upon the fact whether the removal  was  in order  to  prevent ,due division of the crop at  the  proper time.   In the present case we have already  indicated  that the removal was not to prevent due division.  The respondent was  always  prepared  for  due  division  and  it  was  the appellant’s agent who did not agree to division according to law.  In these circumstances, this is not a case of  removal of the crop (particularly after it had been measured by  the Revenue Inspector) with a view to prevent its due  division. There  was  therefore no transgression of s. 7 of  the  Fair Rent Act, even if the appellant’s share was removed. Then it is urged that even if there was no transgression  of s.  7 of the Fair Rent Act, the respondent was not  entitled to  the protection of s. 3 of the Protection Act, as he  did not pay rent within the time specified therein and had taken no  steps under s. 3(3) of the Act.  There is no doubt  that strictly  speaking  the case is covered by s.  3(2)  of  the Protection Act inasmuch as the rent was not paid within  the time  allowed  therein and was not even deposited  in  court under  s. 3(3) of the Protection Act.  What  the  respondent did  in  the present case was to send a money order  to  the appellant instead of depositing the money in court under  s. 3(3) as he should have done.  Even though the appellant  was not agreeing to the division of the crop, the respondent did not  act under s. 3(3) as he should have and instead sent  a money  order.  That gave the appellant a cause of action  to make  an  application under s. 3(4) of the  Protection  Act. But   even  though  the  appellant  was  entitled  to   make application under s. 3(4) of the Protection Act, the Revenue Divisional Officer was not bound to evict the tenant for el.



(b)  of s. 3(4) gives him a discretion to give time  to  the tenant  to  pay the arrears having regard  to  the  relative circumstances  of the landlord and the  cultivating  tenant. This  clearly means that the Revenue Divisional Officer  has to take into account the circumstances of each case and then exercise  his discretion whether be should give time to  the tenant or not.  In the present case 204 the  Revenue Divisional Officer did not consider that  ques- tion  as  he took the view that he should not  exercise  the discretion  in favour of the respondent because he  had  not acted as  he  should  have acted and  deposited  the  amount under s.  3(3)   in  court.   This  view  of   the   Revenue Divisional Officer is    in our opinion patently  incorrect. Now if the respondent had acted as he should have, acted and made  a  deposit under s. 3(3) of the  Protection  Act,  the matter  would have been dealt thereunder.  The court  (which includes the Revenue Divisional Officer) would then have  to consider whether the, amount deposited was correct and if it was deficient the court was bound to give time to the tenant to  make up the deficiency.  It is only when the  deficiency is  not made good within the time allowed that the  landlord would  have the right to make an application under  s.  3(4) for  eviction.   It is clear therefore that  the  discretion allowed under cl. (b) of s. 3(4) only comes into play  where the  tenant  for  some reason or the other has  not  made  a deposit  under s. 3(3).  To hold therefore,-as  the  Revenue Divisional  Officer seems to have held-that  the  discretion will not be exercised in favour of the tenant because he had failed  to  make  a deposit under s. 3(3) of the  Act  is  a patent  violation of the provision in cl. (b) of s. 3(4)  as to the exercise of discretion. It  is  however urged that even if  the  Revenue  Divisional Officer had misunderstood cl. (b) of s. 3(4), the High Court could  not interfere with the exercise of the discretion  by the   Revenue  Divisional  Officer  under  s.  6-B  of   the Protection Act, inasmuch as this provision gives  revisional jurisdiction  to the High Court to the extent to which  such jurisdiction  is  conferred on it by s. 115 of the  Code  of Civil Procedure.  There are two answers to this  contention. The  first  is  that  the  Revenue  Divisional  Officer  was patently  wrong in his view of the law and therefore if  the High Court interfered with the wrong exercise of discretion, this  Court  in  its jurisdiction under Art.  136  will  not interfere with the order of the High Court, which is clearly in  the  interest of justice.  Secondly by taking  the  view that he cannot and should not exercise his discretion  where a  tenant  has failed to take action under s.  3(3)  of  the Protection  Act, the Revenue Divisional Officer has  in  our opinion failed to exercise jurisdiction vested in him  under the   law,  and  the  High  Court  would  be  justified   in interfering with its order even under s. 115 of the Code  of Civil Procedure. We  are therefore of opinion that there is no force in  this appeal and it is hereby dismissed with costs.                      Appeal dismissed. 205