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Kotu Pichayya Vs. Kandalla Satyanarayana Charyulu - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 858 of 1962
Judge
Reported inAIR1968AP311
ActsTenancy Law; Andhra Tenancy Act, 1956 - Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17; Code of Civil Procedure (CPC), 1908 - Sections 9; Small Cause Courts Act - Sections 25
AppellantKotu Pichayya
RespondentKandalla Satyanarayana Charyulu
Appellant AdvocateN. Subba Reddy, Adv.
Respondent AdvocateV. Venkataramaiah, Adv.
DispositionPetition dismissed
Excerpt:
.....same on a future date. 5. section 5 empowers the parties to determine by agreement the quantum of rent payable as well consistent with the provisions of section 3. this is because the parties are in a better position to judge the productive capacity of the land and fix a legitimate or reasonable quantum of rent payable unless varied by the tahsildar under section 6 in the prescribed manner sections 5 and 6 read thus: section 8 provides for remission of rent in the case of total or partial failure of crops in any year due to widespread calamities such as cyclone, draught or flood etc. indeed section 16 clearly lays down that any dispute arising under the act between a landlord and a cultivating tenant including any question relating to determination of fair rent or eviction if a..........named in the act and the civil courts are concerned only with the agreed rent as it is the rent payable under law unless varied by the tahsildar in the prescribed manner. in this view of the matter and also having regard to the conduct of the parties all these years that they regarded it as the reasonable and legitimate rent payable, the learned subordinate judge held that the defendant was liable to pay agreed maktha of 1 putti 7 1/2 tooms for the fasli year 1369.3. the first contention of the learned counsel, mr. n. subbareddi is that the andhra tenancy act (xviii of 1956) being a beneficial act should be construed liberally and leniently in favour of the tenants having regard to the avowed object of the act. his second contention is that even though the tenant might not have.....
Judgment:

Kumarayya, J.

1. The short point that falls for determination in this revision petition, filed under Section 25 of the Small Cause Courts Act against the orders of the Subordinate Judge. Kavali is whether the court below had power and on a plea being raised was bound to decide as to the rent being excessive or above the statutory maximum in a suit brought by the landlord for recovery of amounts due on promissory note, grain bond, and under other demands including the demand for agreed rent for the fasli year of 1369.

2. Admittedly the plaintiff is the landlord and the defendant a cultivating tenant. Whereas the case of the plaintiff was that the total area of acres 1-95 cents was leased out to the defendant on a fixed agreed rent of 1 putti 7 1/2 tooms, the contention of the defendant has been that only part of that area was leased out to him and the lease was on sharing system and not on any fixed agreed rent in kind. He further contended that in any event the plaintiff is not entitled to the alleged agreed rent as it is in excess of the maximum permissible under law. The learned Subordinate Judge, on the evidence adduced, both oral and documentary, found in favour of the plaintiff that the lease was in relation to the holding, acres 1-95 cents in extent, and it was on maktha basis and not on sharing system: that the agreed rent was 1 putti 7 1/2 tooms, and the defendant was cultivating the land from the year 1956 was paying the said agreed rent in full without demur during all these years and that whenever he failed to pay it in full he executed a bond for the balance accepting his liability therefor and undertaking to pay the same on a future date. On the question whether the agreed rent was excessive or unfair and that in point of fact it was more than 50 p.c. of the gross produce of the land, the learned Subordinate Judge held that these are the matters to be agitated before the statutory authorities named in the Act and the civil courts are concerned only with the agreed rent as it is the rent payable under law unless varied by the Tahsildar in the prescribed manner. In this view of the matter and also having regard to the conduct of the parties all these years that they regarded it as the reasonable and legitimate rent payable, the learned Subordinate Judge held that the defendant was liable to pay agreed maktha of 1 putti 7 1/2 tooms for the fasli year 1369.

3. The first contention of the learned counsel, Mr. N. Subbareddi is that the Andhra Tenancy Act (XVIII of 1956) being a beneficial Act should be construed liberally and leniently in favour of the tenants having regard to the avowed object of the Act. His second contention is that even though the tenant might not have approached the Tahsildar for fixation of fair rent for the holding, the civil court had power and jurisdiction to go into the question whether the agreed rent is in excess of the maximum rates fixed by the said Act and grant relief accordingly. He urges that the civil court's jurisdiction in this behalf is not circumscribed by any limitations and the court below had erred in holding that it had no jurisdiction.

4. In order to appreciate the contentions raised, we have to notice the relevant provisions of the Act. As we have already noticed it is common ground that the defendant is a cultivating tenant and the plaintiff is landlord within the meaning of the said terms used in Act XVIII of 1956. Section 3 of the said Act, which fixes the ceiling on rent payable by a cultivating tenant to a landlord reads thus.

'3. (1) The maximum rates of rent payable by a cultivating tenant to a landlord, expressed in terms of proportion of gross produce, shall be-

(i) in the case of crops other than commercial crops-

(a) grown on land under Government irrigation sources other than lands falling under Sub-clause (b)--50 per cant of the gross produce.

(b) ....

(c) . . . '

Then Section 4 empowers the parties to enter into an agreement both with regard to the form of tenancy and also the manner in which the rent has to be paid whether in the shape of share in the produce or in the form of fixed rent in kind or in cash. The section is categorical that once the agreement is thus entered into, it is not liable to be altered during the currency of the lease except by the mutual agreement of the parties.

5. Section 5 empowers the parties to determine by agreement the quantum of rent payable as well consistent with the provisions of Section 3. This is because the parties are in a better position to judge the productive capacity of the land and fix a legitimate or reasonable quantum of rent payable unless varied by the Tahsildar under Section 6 in the prescribed manner Sections 5 and 6 read thus:

'5. The cultivating tenant and the landlord may agree among themselves in regard to the quantum of rent payable for a holding subject to the maximum rent specified in Section 3. The rent so agreed (hereinafter referred to as 'agreed rent'), whether it is in pursuance of an agreement made between the parties before or after the commencement of this Act, shall, subject to the provisions of Section 6. be the rent payable for the holding.

'6. (1) Notwithstanding any agreement between the landlord and the cultivating tenant for the payment of an agreed rent, either party may apply to the Tahsildar for the fixation of fair rent for the holding. Such application shall be made--(a) in the case of every tenancy subsisting at the commencement of this Act within a period of one year from such commencement;

(b) in the case of every tenancy entered into after the commencement of this Act, within a period of two years from the date on which the tenancy commences.

(2) On receipt of such application, the Tahsildar shall, after making an inquiry in the manner prescribed, determine the fair rent, having regard to the following factors, namely-

(a) the rental value of the lands used for similar purpose in the locality;

(b) the profits of agriculture on similar lands in the locality;

(c) the prices of crops and commodities in the locality:

(d) rates of wages of agricultural labour prevailing in the locality:

(e) the improvements made to the land by the landlord or the cultivating tenant;

(f) the assessment payable in respect of the land;

(g) such other factors as may be prescribed.

(3) In determining the fair rent, the Tahsildar shall presume, until the contrary is proved that the agreed rent payable in respect of the holding in the fair rent.

(4) The fair rent determined by the Tahsildar shall not exceed the maximum rentspecified in Section 3.

5. The order determining the fair rent shall take effect from the commencement of the agricultural year in which the application for the determination of fair rent is made, and shall be in force for the duration of the lease.'

Section 7 stresses on deposit of the agreed rent during the period the proceeding for fixation of fair rent is pending. Then there are Sections 8 to 15 which need not be referred to in detail Suffice it for the purpose to state that they reveal close connection of the Tahsildar with the various matters referred to in the Act. Section 8 provides for remission of rent in the case of total or partial failure of crops in any year due to widespread calamities such as cyclone, draught or flood etc., which again has to be granted by the Tahsildar only on proper application by the tenant and after due inquiry in the prescribed manner. Section 9 fixes interest on arrears of rent and Section 10 fixes the minimum period of lease and the form in which it should be executed Clause (3) gives power to the landlord to resume the land without any notice after the termination of the statutory period. Sections 11 and 12 relate to the continuance of tenancy in certain events. Section 13 prescribes the mode of terminating the tenancy and evicting the cultivating tenant during the currency of a lease. The tenant can be evicted only under the orders of the Tahsildar in accordance with the provisions of Section 13. Then sections 16 and 17 read thus:

'16. (1) Any dispute arising under this Act between a landlord and a cultivating tenant, including any question relating to the determination of fair rent or the eviction of a cultivating tenant, shall, on application by the landlord or the cultivating tenant, as the case may be, be decided by the Tahsildar after making an inquiry in the manner prescribed.

(2) Against any order passed by the Tahsildar under Sub-section (1) an appeal shall lie to the Revenue Divisional Officer, within thirty days of the passing of the order, and the decision of the Revenue Divisional Officer on such appeal shall be final.'

'17. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any preexisting law, custom, usage, agreement or decree or order of a Court.'

6. Thus it would appear from the above discussion that whereas the Act has fixed the maximum rates of rent in terms of gross produce payable by a cultivating tenant, for convenience sake it has permitted the parties to fix for themselves by agreement the quantum of rent in the same way as it has permitted them to determine by agreement the form of tenancy and also the manner in which the rent should be paid. Just as it has provided that once the agreement with regard to form of tenancy and the manner of payment of rent has been entered into, it shall not be liable to be altered during the currency of the lease save by mutual agreement of the parties, so also it has provided the quantum of rent once agreed upon shall be payable for the holding unless that is varied under Section 6. That section relates to fixation of fair rent having regard to the various factors specified in the proviso, It is, however, the agreed rent that will be payable during the pendency of the proceeding of fair tent. Further the very provision refers to the presumption that the agreed rent is the fair rent until the contrary ' is proved, Besides even if a different rent be fixed ultimately as fair rent, it will take effect only from the commencement of the agricultural year in which the application is filed and not before. All this shows the importance that is attached to the quantum of rent agreed upon by the parties. While the fair rent cannot in the nature of things exceed the maximum rent, that rent which replaces the agreed rent has to be necessarily determined by the Tahsildar and by no other. The jurisdiction of the Tahsildar has to be invoked in a particular way within particular time. The proceeding should take place in a prescribed manner and the fair rent has to be determined in view of the factors laid down by the State. Indeed if we look to the general scheme of the Act it is abundantly clear that the matters dealt with by the Act and the disputes arising therefrom have to be decided only by the Tahsildar and on appeal by the Revenue Divisional Officer. The civil courts are not at all in the picture there.

Indeed Section 16 clearly lays down that any dispute arising under the Act between a landlord and a cultivating tenant including any question relating to determination of fair rent or eviction if a cultivating tenant shall be decided by the Tahsildar on the application of the landlord or the cultivating tenant and after making inquiry in the manner prescribed. The opening words 'any dispute' cover disputes of all kinds arising under the Act. Questions relating to determination of fair rent or the eviction of cultivating tenant referred to in the provision do not exhaust all the categories of dispute. Their inclusive description is merely illustrative and not exhaustive. Disputes contemplated are various and manifold. Whatever they be, Section 16 is categorical that they have to be decided by the Tahsildar in the manner prescribed. It gives right of appeal, fixes the forum and attaches finality to the orders. What is more, Section 17 gives overriding effect to the provisions of the Act.

7. It follows therefore that whatever disputes that may properly arise under the provisions of the Act between a landlord and a cultivating tenant cannot be brought for decision before any other tribunal or court but only before the Tahsildar. In this way there is a clear embargo on the jurisdiction of the civil courts to decide such matters as are within the cognizance of the Tahsildar under the provisions of the Act. Obvious as the provision in Section 5 is that the agreed rent shall be the rent payable subject to the provisions of Section 6, the Civil Court has no power to vary that rent as such a power is expressly conferred on the Tahsildar.

It is true as argued by the learned council that exclusion of civil court's jurisdiction over matters of civil nature is not a matter of ready inference unless it is expressly explicit or necessarily implied. But what better context could there be of exclusion when sections 16 and 17 are so categorical of exclusion of civil court's jurisdiction? Where certain rights are created by the Statute and disputes in relation thereto are brought in this cognizance of a special forum and a right of appeal is given and further the Statute gives overriding effect to its provisions, it is idle to contend that the civil court has still jurisdiction to decide such disputes as have arisen under the Act between the landlord and the cultivating tenant.

8. The learned counsel contends that as the civil court can grant relief in relation to recovery of rent, it must follow by necessary implication that it has jurisdiction to decide all matters as have a bearing on question of rent, whether it be reasonableness or otherwise of it or the legality or otherwise thereof. When once it is held that certain matters are within the cognizance of a special forum, unless the matter in question before the civil court is out of the purview of that special forum, the civil court cannot take cognizance of it. Section 5 lays down that the agreement may be entered into with regard to rent subject to the maximum specified in Section 3. It further provides that when once such agreement has been entered into, the agreed rent shall be the rent payable for the holding, of course, subject to the provisions of Section 6. In other words this agreed rent can be varied only in the manner prescribed under the provisions of Section 6. It follows, therefore, that until it is varied what remains within the field of civil court is to grant relief according to the agreed rent alone for variation of the said rent is within the province of the tenancy court and such variation has to be made only in accordance with certain specified standards as are prescribed in the section and no other. We therefore feel that the court below was right in holding that it cannot go behind the agreed rent unless and until it is varied under the provisions of Section 6.

9. It is no doubt true that a ceiling is fixed under Section 3 on the rates of rent payable by a cultivating tenant and the agreed rent cannot exceed that limit as has been specifically provided in the first part of Section 5. But whether the rent specified is such is a question which has to be determined according to certain specified standards.

It was open to the parties to agree under Section 4 to pay in the form of a share in the produce. They have not chosen to adopt this method of payment. They have with full knowledge of the average annual yield entered into a contract to Day specified measure of paddy every year. In that case it is the capacity of the land and not so much as the actual yield of a particular year that becomes significant. The cultivating tenant may grow slack, may not attend to operations properly and the landlord also in view of the agreed rent may not take much interest in the land and as a result the actual yield of a particular year may suffer enormously. Could it then be said that the agreed rent should also be correspondingly affected? It is only to prevent acts of waste and negligence and to ensure maximum efficiency that the fixed quantum of rent is usually agreed upon. The statute has given importance thereto for it says that once agreed that shall be the rent payable and Section 6 contains the statutory presumption that unless proved to the contrary, the agreed rent is the fair rent and further the payment of agreed rent is made obligatory until fair rent is fixed.

It is clear that when the quantum of rent is agreed upon that will be the rent payable until it is held by the Tahsildar that it is not a fair rent or is a rent exceeding the maximum. The dispute as to rent being in excess of maximum must necessarily be a dispute arising under the Act within the meaning of Section 16 and hence cognizable by special forum and barred for the civil court. If the bargain be an unconscionable bargain, the matter may be different. Perhaps it is only in cases where unconscionable bargain have been entered into that the question of Interference by the civil Court may arise on that ground. In the present case we do not think that the contract can be termed as unconscionable having regard to the rate of rent fixed. We therefore dismiss the revision petition with costs and uphold the order of the trial Court.


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