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T.S. Kothandraman and anr. Vs. Sub-collector, Mettur and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberW.P. No. 10316 of 1981
Judge
Reported inAIR1983Mad63; (1983)1MLJ170
ActsTamil Nadu Debt Relief Act, 1980 - Sections 3; Tamil Nadu Debt Relief (Amendment) Act, 1980
AppellantT.S. Kothandraman and anr.
RespondentSub-collector, Mettur and anr.
Appellant AdvocateR. Mathurabatham
Respondent AdvocateP. Jayaraman, Adv. and ;S. Jagadeesan, Adv. for ;Govt. Pleader
Excerpt:
.....authority was of the view that inas much as the petitioners own 4.02 acres of irrigated dry the lands, petitioners are not small farmers and that therefore they are not entitled to the benefits of the act. the petitioners preferred a writ petitionin the high court. the respondent contended that the petitioners are not entitled the benefits of the act, since they owned lands worth more than rs. 25,000 and hence should be taken out of the purview of the act under proviso (vii), to section 3 (d).;the question that arose for consideration was whether the petitioners, who admittedly do not stand excluded by the application of proviso (vii).;held, having regard to the object of the act and the language used in the respective provisos, the provisos are intended to apply to three different..........land; or.(vi) whether individually or jointly owns in this state or elsewhere any other immovable property (other than agricultural lands), the market value of which exceeds twenty-five thousand rupees.(vii) whether individually or jointly owns in this state or elsewhere both agricultural lands and other immovable property, the market value of both such agricultural lands and other immovable property exceeds twenty five thousand rupees.explanation: for the purpose of provisos (vi) and (vii), the market value of the immovable property of both the agricultural lands and other immovable property, as the case may be, shall be estimated to be the price, which in the opinion of the authority prescribed in this behalf, such immovable property or both the agricultural lands and other.....
Judgment:
1. The petitioners herein have prayed for the issue of a writ of certiorari to quash the order of the first respondent Dt. 8th Sept., 1981 allowing the second respondent's appeal and setting aside the order of the Special Tahsildar, Debt Relief, Mettur Dt, 31st Oct., 1980 holding that the petitioners are entitled to the benefits of Tamil Nadu Act 13 of 1980.

2. The petitioners herein have taken a mortgage loan of Rs. 20,000/- from the second respondent on 8th April, 1974 and the said mortgage debt was outstanding on the date of the commencement of Tamil Nadu Act 13 of 1980. Taking advantage of the provisions of the said Act, the petitioners filed an application under S. 6 of the said Act before the Special Tahsildar (Debt Relief) Mettur for a certificate of redemption alleging that their annual household income is less than Rs. 4,800/- and that therefore they are entitled to the benefits of the Act. The said application was opposed by the second respondent on the ground that the petitioner's annual household income was more than Rs. 4,800/-. The Special Tahsildar, by his order Dtt. 31st October, 1980 found that the annual household income of the petitioners does not exceed Rs. 4,800/- and therefore they are entitled to a certificate of redemption. By the same order he also directed an unsecured debt of Rs. 7,500/- due by the petitioners to the second respondent on a promissory note to stand discharged.

3. There was an appeal by the second respondent to the first respondent herein against the said order of the Special Tahsildar. When the said appeal was pending, the definition of 'debtor' under S. 3(d) stood amended by the Tamil Nadu Act 10 of 1981. By this amendment, a proviso has been introduced to S. 3 (d) excluding certain persons from the definition of debtors. The provisos (i) to (iv) are not relevant in this case. The provisos (v), (vi) and (vii) are relevant for the purpose of the present discussion and those provisos are extracted below:

"(v) Whether individually or jointly owns in this State or elsewhere agricultural lands exceeding ten acres of unirrigated land or five acres of irrigated land (whether irrigated from a Government source or a private source):

Explanation: Where any person owns both irrigated and unirrigated lands, for the purpose of calculating under proviso (v), the extent of land owned by him, one acre of irrigated land shall be deemed to be equal to two acres of unirrigated land; or.

(vi) Whether individually or jointly owns in this State or elsewhere any other immovable property (other than agricultural lands), the market value of which exceeds twenty-five thousand rupees.

(vii) Whether individually or jointly owns in this State or elsewhere both agricultural lands and other immovable property, the market value of both such agricultural lands and other immovable property exceeds twenty five thousand rupees.

Explanation: For the purpose of provisos (vi) and (vii), the market value of the immovable property of both the agricultural lands and other immovable property, as the case may be, shall be estimated to be the price, which in the opinion of the authority prescribed in this behalf, such immovable property or both the agricultural lands and other immovable property, as the case may be, would have fetched if sold in the open market on the 19th April, 1980".

4. At the stage of the appeal, the appellate authority, the first respondent, taking note of the fact that the petitioners own 4.02 acres of irrigated dry lands, held that as the petitioners are not small farmers, they are not entitled to the benefits of the Tamil Nadu Act 13 of 1980. Obviously the reasoning given by the first respondent that the petitioners who are not small farmers as they hold as extent of 4.02 acres of irrigated dry lands are not eligible for the relief under Tamil Nadu Act 13 of 1980 is untenable and unsupportable. If the petitioners are not small farmers, in respect of the debts they are not entitled to claim benefits under Tamil Nadu Act 31 of 1976 and therefore they will straightway come within the scope of Tamil Nadu Act 13 of 1980 provided: (i) their annual household income is not shown to be more than Rs. 4,800/- and they also do not come within the exceptions set out in the provisos above referred to. Therefore, the order of the first respondent cannot be such as sustained and the matter has to be remitted back to the appellate authority for consideration of the question as to whether the petitioners' annual household income was more than Rs.4,800/- or not as on 31st Dec., 1979 for the purpose of finding out whether they are entitled to the benefit of Tamil Nadu Act 13 of 1980 or not.

5. However, the learned counsel for the second respondent contends that even though the petitioners are found to own 4.02 acres of irrigated dry lands which is less than the limit of land prescribed in proviso (v), the said lands held by the petitioners has been shown to be worth more than Rs. 40,000/- in value in the annexure to the mortgage deed itself for the purpose of the stamp duty, and therefore the petitioners as persons owning agricultural lands worth more than Rs. 25,000/- as contemplated in proviso (vii) will stand excluded by the said proviso to S. 3 (d). According to the learned counsel for the second respondent, though under proviso (v), the petitioners having regard to the extent of land owned by them may be taken to be persons coming within the purview of the Act, under proviso (vii) they will have to be taken out of the purview of the Act, having regard to the fact that their agricultural lands are worth more than Rs.25,000/-.

6. The learned counsel for the petitioners would contend that once the petitioners are found to come within the purview of the Act as the extent of land held by them was less than 10 acres of unirrigated land or 5 acres of irrigated lands as provided in proviso (v), there is no question of their being excluded from the purview of the Act with reference to the other provisos. According to the learned counsel for the petitioners, the provisos (v), (vi) and (vii) should be understood to operate independently and they cannot be applied cumulatively, that the persons coming under these three provisos should be taken as three separate and independent groups and if by application of one proviso and one group comes within the purview of the Act, the benefit of the Act cannot be denied to that group merely because the group is likely to fall within the other provisos. The learned counsel also submits that the provisos should be read harmoniously so as to avoid the conflict or as operating on the same set of persons. Thus the main question is as to what is the relative scope of the three provisos set out above.

7. There is no dispute that though the provisos were introduced by Tamil Nadu Act 10 of 1981, they have to be applied to the petitioners' case as their appeal was pending before the appellate authority. Even otherwise the Act has been specifically made retrospective in operation from 19th April, 1980. It is for this reason the applicability of the provisos to S. 3(d) which have been introduced by Act 10 of 1981 to the petitioners' case has not been disputed before us by the learned counsel for the petitioners. The learned counsel for the petitioners would say that since the appellate authority has found that the petitioners have got only 4.02 acres of irrigated dry lands well within the limit set out in proviso(v), they should be taken to be entitled to come within the scope of the Act and if they establish that their annual household income was less than Rs. 4,800/- they are entitled to claim the benefits of the Act, and, therefore, the only thing that has to be considered by the appellate authority is to find out whether the petitioners' annual household income was Rs. 4,800/- or not and dispose of the appeal base on the said finding.

8. On the other hand, the learned counsel for the second respondent submits that even though the extent of land held by the petitioners is less than the limit prescribed in proviso (v), the lands are worth even according to the valuation given by the petitioners in the mortgage deed, more than Rs. 25,000/- and that will take the petitioners out of the purview of the Act under proviso (iii). The question is whether the petitioners, who admittedly do not stand excluded by proviso (v) can be taken to have been excluded by the application of proviso(vii).

9. On a due consideration of the matter, we are of the view that the three provisos referred to above have separate and independent operation on three different groups of people. Proviso (v) deals with the extent of agricultural land held by a person and provides the extend of land as a measure for finding out whether that person will come under the purview of the Act or not. This proviso does not refer to the value of the agricultural lands, and the worth of the agricultural lands has not been considered as being material for the application of proviso. (v).

10. Proviso (vi) provides that if persons, either individually or jointly, own any other immovable property other than agricultural lands and if the market value of such property exceeds Rupees 25,000/-, then those persons will stand excluded from the purview of the Act. This provision specifically refers to persons owning immovable property other than agricultural lands. Having regard to the language used in the proviso it can only refer to persons owning immovable property other than agricultural lands.

11. Proviso (vii), however, deals with persons who either individually or jointly own both agricultural lands or other immovable property, the market value of which exceeds Rs. 25,000/-

12. Having regard to the object of the Act and the language used in the respective provisos, we are of the opinion that the provisos are intended to apply to three different sets of persons: (1) persons owning exclusively agricultural lands, (2) persons owning exclusively immovable properties other than agricultural lands and (3) persons owning agricultural lands as well as other immovable properties. So far as persons owning exclusively agricultural lands, the Legislature has thought it fit to use a different measure, that is to fix a ceiling on one's extent of holding to determine whether he is to be brought within the Act or not and has fixed 10 acres of unirrigated land and 5 acres of irrigated land as a limit for the purpose of exclusion from the provisions of the Act. In respect of persons owning other immovable property other than agricultural lands, the limit of Rs. 25,000/- has been fixed as the criteria for the purpose of excluding those persons from the purview of the Act. In our view the construction which we have adopted of the provisos (v), (vi) and (vii) not only gives some effect to the policy and object of the Act, but is also a harmonious construction. When the three provisions are intended to serve the same purpose of finding out whether a particular person comes within the purview of the Act or not, the Legislature could not have provided different and inconsistent tests in respect of the same persons. Therefore, giving a harmonious construction to the said provisos and reading them conjointly, the only conclusion possible is that the provisos act on different sets of individuals and not on one and the same set of persons.

If a person holds only agricultural lands, the proviso (v) operates in his case and the test to be adopted is to see whether he owns 10 acres of unirrigated land or 5 acres of irrigated land. If by adopting that test he is found to come within the scope of the Act, then there is no question of his being subjected to other tests which has been set out in provisos (vi) and (vii). Similarly if a person holds immovable properties, the market value of which exceeds Rs. 25,000/-, he will stand excluded under proviso (vi). Proviso (vii), is intended to apply, as already stated, to persons who own both agricultural lands and other immovable property, the market value of both of which exceeding Rs. 25,000/-. Obviously this provision will not apply to a person who holds either only agricultural lands or only immovable properties to whom provisos (v) and (vi) will have to apply and only to persons who own both agricultural lands and other immovable property this proviso has to be applied. Therefore, in this light we are not inclined to agree with the contention advanced on behalf of the second respondent that since the petitioners' agricultural lands are worth more than Rupees 25,000/- they have to be brought within the proviso (vii), for, proviso(vii), as we have already said, applies only to persons who own both agricultural lands and other immovable properties. The learned counsel for the second respondent would say that the petitioners, apart from owning agricultural lands also own some other immovable property. Now that we are remitting the matter to the first respondent for a fresh consideration in the light of the opinion expressed by us as to the relative scope of provisos (v), (vi) and (vii), the appellate authority has to consider as to which of the three provisos applies to the petitioners after ascertaining their properties.

13. The order of the appellate authority, first respondent, Dt. 8th Sept., 1981, has therefore, to be set aside with a direction to him to consider the matter afresh after considering the question as to what are the properties owned by the petitioners, both agricultural lands and other immovable properties, and decide the question as to the petitioners' entitlement to the benefit of the Act in the light of the amended provision.

14. At this stage we have to mention that the order of the Special Tahsildar which is the subject matter of the appeal before the first respondent also directs the discharge of the promissory note debt of Rs. 7,500/-, assuming that the Act enables him to discharge the promissory note debt. Even though the promissory note debt is covered by S. 4 of Tamil Nadu Act 13 of 1980 the Tahsildar or the other authorities constituted under the Act have not been specifically enabled to discharge a promissory note debt by giving a certificate of discharge. No doubt S. 4 (1) says that no suit or proceeding could be filed against a debtor coming within the definition of the Act in any Civil Court and even if a suit has been filed before the commencement of the Act, the suit will stand stayed. But before a suit is held as not maintainable or held abated, it is the Civil Court which has to find as to whether the defendant in the suit is a debtor as defined in the Act. Therefore, as and when the second respondent files a suit against the petitioner for recovery of the promissory note debt, the petitioners can put forward their claim that they are entitled to the benefits of Tamil Nadu Act 13 of 1980 and their entitlement to the benefits of the Act has to be considered by the Civil Court. Therefore, the direction of the Tahsildar discharging the promissory note debt cannot be sustained in law, but as that order is not before us, we merely express our opinion so that the appellate authority will modify the order of the Tahsildar suitably.

15. As it is stated that the appeal was filed long before the amendment made to Act 13 of 1980 by Tamil Nadu Act 10 of 1981, the second respondent herein who is the appellant before the first respondent wants permission to file additional grounds based on the amended provision. The permission is granted.

16. The order of the first respondent is set aside and the matter is remitted to the first respondent for fresh disposal in the light of the observations above. No costs.

17. Order accordingly.


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