Skip to content


Mohamad HussaIn Rowther Vs. Kasaiyya Sholagar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1966)2MLJ312
AppellantMohamad HussaIn Rowther
RespondentKasaiyya Sholagar
Cases ReferredIn Sharpness New Docks and Gloucester Birmingham Navigation Company v. Attorney General L.R.
Excerpt:
.....that a part of the road in question had been macadamised, and the road requiring very frequent repairs on account of heavy traffic the highway authority thought it better instead of macadamizing the road afresh, to pave it with granite setts, and accordingly sought to recover half the costs from the county authority. it might be that, if, owing to increasing 'traffic, it became necessary to use harder stone than had been used previously to repair such a road, so as to provide a better macadamized road to meeting the requirements of the traffic, the highway authority in so doing would only be maintaining the road. the plaintiff council removed the whole of the snow from the road, and also brought an action to recover from the tramway company the cost of removing so much of the snow as..........and tunbridge railway & co. v. london chatham and dover railway co. l.r. 11ch. d. 625 , a railway company was authorised to make and maintain a railway line with all proper stations, approaches and works and were empowered to transfer or sell the railway to another company to be maintained and worked. while the company was in possession of the railway line, the railway company erected some stone-steps in the station yard which the company removed. in an action for mandatory injunction to compel the company to restore the steps, jessel, m.r., observed at page 634:it is very difficult to define what works of maintenance are. it is a very large term, and useful or reasonable ameliorations are not excluded by it... so where a railway company have to maintain a railway, i should not.....
Judgment:
ORDER

T. Venkatadri, J.

1. This Civil Revision Petition arises out of proceedings before the Rent Court, Thanjavur. The petitioner is the landowner. The respondent-tenant filed an application under Section 3(6) of the Madras Cultivating Tenants (Payment of Fair Rent) Act, (XXIV of 1956), to direct the landowner to maintain the lands in proper condition by doing the reclamation work to the leasehold lands affected and damaged by floods of July, 1961. Both the Presiding Officer of the Rent Court, Thanjavur, and the Rent Tribunal (District Munsif), Tiruvaiyaru, have held that the landowner was bound to maintain the lands as prayed for by the tenant. It is against this order the landowner has filed the present revision petition.

2. Section 3(6) of the Act is in the following words:

The landowner shall bear all capital expenditure necessary to maintain the land and wells in a state of proper repair.

Now what is the interpretation to be given to the words ' maintain the land and wells in a state of proper repair ' is the subject-matter of discussion in this petition. During the course of the trial before the Rent Court, the Presiding Officer of that Court made a personal inspection of the lands and he found that the lands were affected by the floods of July, 1961 and were covered by the alluvial soil which made the lands unfit for cultivation. He also found several pits and ponds in several places and the level of the lands had been raised to a considerable extent, and that on the whole, a depth of one foot had to be lowered all round from the present level and the ponds and pits would have to be paved for making the lands fit for cultivation. He was of opinion that at least Rs. 200 was required per acre for reclamation of the lands and that on the whole a sum of Rs. 800 was necessary to reclaim the lands. Now the question for consideration is whether the landowner could be compelled to incur this expenditure, as per the provisions of the Act.

3. Learned Counsel on both sides copiously cited the dictionary meaning of the word 'maintain'. In Funk and Wagnalls' New Standard Dictionary, page 1494 the meaning is given as ' to preserve in a particular state or condition.' Shorter Oxford Dictionary, page 1190, gives the meaning as 'to preserve unimpaired.' Chambers 20th century Dictionary, page 641, gives the meaning as ' to keep in existence or in any state, to preserve from...deterioration.' Webster's International Dictionary gives the meaning, ' to hold or keep in any particular state or condition.'--Vide Ramanatha Iyer's Law Lexicon, page 766. Ramanatha Iyer says at page 767 of the Law Lexicon that the word ' maintain ' does not mean to provide or construct but means to keep up, to keep from changes, to preserve. The verb,' to maintain ' signifies' to support what is already brought into existence. ' To repair ' means to restore to a sound or good state after decay, injury, dilapidation or partial destruction.' The word 'maintain' therefore only means ' to keep up, to preserve.' It does not include reclamation of the lands. Meaning has to be given taking the context of the statute, and the statute must be read as a whole while giving interpretation to the word. The Act is entitled to give relief to tenants and certainly not to impose any onerous conditions ton the landowner. Jagadisan, J., has observed in Kathayya Padayachi v. Ponnan Kaladi (1963) 2 M.L.J. 388 : I.L.R. (1964) Mad. 716 : 76 L.W. 399, that a cultivating tenant is not a ' lessee ' but has specified rights. While we are considering the provisions of a statute which encroaches on the rights or imposes certain burden on the landowners and tenants, it is a recognised rule that they should be interpreted, as far as possible, with respect to their respective rights. When the Act confers exceptional. privileges, they are subject to the rule of strict construction. When a tenant calls upon a landowner to reclaim the lands, we have to find out the meaning of the word ' maintain' in the context noted above.

4. The word 'to maintain' was the subject of discussion and interpretation in the Court of Appeal and the House of Lords. In Regina v. The Inhabitanta of the Parish of Paul 2 Moody & Rabinson's Reports. 307, when the State indicted the inhabitants of a certain Parish for non-repair of highway, it was held that they were not responsible as the highway was washed by the sea and there was nothing for them to repair. Similarly, in another case, The Queen v. Bamber L.R. 5 Q.B.R. 279, it was held that if all the materials of which a road could be made had been swept away by the act of God, the defendant could not be held liable for not repairing the road. In The Queen v. The Inhabitants of Greenhow L.R. 1 Q.B.D. 703, there was an indictment against the inhabitants of a certain township for theno repair of a highway. Blackburn, J., held that on the facts of the case there was no proof of such destruction of the highway as to exempt the parish from their liability. The learned Judge observed that it could not be said that the road was annihilated and that it was impossible in a commercial sense, to repair it, that is, that it would cost more than the subject-matter of repair was reasonably worth. Evidently the cost of repair in that case was reasonable and not very much. In Sevenoaks Maidstone and Tunbridge Railway & Co. v. London Chatham and Dover Railway Co. L.R. 11Ch. D. 625 , a railway company was authorised to make and maintain a railway line with all proper stations, approaches and works and were empowered to transfer or sell the railway to another company to be maintained and worked. While the company was in possession of the railway line, the railway company erected some stone-steps in the station yard which the company removed. In an action for mandatory injunction to compel the company to restore the steps, Jessel, M.R., observed at page 634:

It is very difficult to define what works of maintenance are. It is a very large term, and useful or reasonable ameliorations are not excluded by it... So where a railway company have to maintain a railway, I should not at all doubt that in maintaining it they might use any reasonable improvement...I should say all that was within the powers of maintenance given by the Legislature; that is, you may maintain by keeping in the same state and improving the state, always bearing in mind that it must be maintenance as distinguished from alteration of purpose.

5. Finally, it was held that, on the true construction of the Act and working agreement, the company was entitled to exclusive possession and right of maintenance of the railways works and that the erection of the steps was a work of maintenance, and was a wrongful act on the part of the Railway Company. In Guardians of Amesbury v. Justices of Wilts L.R. 10 Q,B.D. 480 , the main roads within the district of a highway authority became impassable from snow,which the highway authority removed, and they claimed one-half of the expense of doing so from the county authority under the Highways and Locomotives Amendment Act. It was held that that was an ' Expense incurred in the maintenance ' of such roads within Section 13 of the Act and that the county authority were liable. But in Leek Improvement Commissioners v. Justices of Stafford L.R. 20 Q.B.D. 794 action was brought by the highway authority again under Section 13 of the Highways and Locomotives Amendment Act, 1878 to recover a certain sum as being the half of certain expenses incurred by them in the maintenance of a portion of a road. It appeared that a part of the road in question had been macadamised, and the road requiring very frequent repairs on account of heavy traffic the highway authority thought it better instead of macadamizing the road afresh, to pave it with granite setts, and accordingly sought to recover half the costs from the county authority. Lord Esher, M.R. said at page 796:

The question is whether what has been done in this case comes within the term ' maintenance '. This road was a macadamized road. It might be that, if, owing to increasing 'traffic, it became necessary to use harder stone than had been used previously to repair such a road, so as to provide a better macadamized road to meeting the requirements of the traffic, the highway authority in so doing would only be maintaining the road. But everybody knows that a macadamized road and a paved road are quite different things; and what the highway authority did in this case was not to maintain the macadamized road, but to remove it, and substitute another kind of road altogether....

6. Finally, it was held that the county authority were not liable to pay half the expenses of the paving. In Action District Council v. London United Tramways L.R. (1909) 1 K.B.D. 68, by a certain arrangement, the council undertook the duty of scavenging and watering snow from the main roads. On one occasion, there was a heavy fall of snow. The tramway company by means of a snow plough pushed the snow from off the portion of the road upon which their tramway lay on the sides of the road so as to form a bank of snow on either side. The plaintiff council removed the whole of the snow from the road, and also brought an action to recover from the tramway company the cost of removing so much of the snow as had fallen upon the portion of the road occupied by the tramway, upon the ground that the tramway company had been compellable to remove it, such removal being necessary to the maintenance of the road and the keeping of it in good condition. Darling, J., observed at page 71:

The County Court Judge held that the language of the section pointed rather to the maintenance and repair of the materials of which the roadway was formed, and was not intended to cover a fall of snow of the kind with which he had to deal and I agree with the conclusion at which he arrived.

In Sharpness New Docks and Gloucester Birmingham Navigation Company v. Attorney General L.R. (1915) A.C. 654 , an Act empowered a canal company to make a canal, and also from time to time to support, maintain and keep in sufficient repair. In an action by the Attorney-General against the company for a declaration that they were liable to keep the bridges in repair so as to be sufficient to bear the traffic which might be reasonably expected to pass along the highways, having regard to the present character and needs of the district. Viscount Haldane L.C., observed at page 661:

I do not think that the words 'supported' and 'maintained' add anything to the effect of the expression ' kept in sufficient repair ' . Now it is to be observed that what are to be kept in sufficient repair mean such bridges as were approved by the commissioners. In my opinion, this language, so far as the natural meaning of the words goes, prescribes unambiguously the extent of the obligation to keep in repair. It appears to me to stop short of imposing on the appellants as obligation to reconstruct so as to provide bridges of a standard higher than that which the commissioners have prescribed.

7. Finally, the Noble Lords held that the company were only liable to keep the bridges in repair in the condition in which they were made in accordance with the requirements of the commissioners. Therefore taking a comprehensive view of the case-law on the meaning of the word ' maintain', I am of the opinion that the word ' maintain ' will never include the reclamation of the lands. Even the inspection of the lands by the Officer has revealed that they requiredreclamation. If the demised lands are affected by floods and if capital expenditure is necessary to bring the lands to normal use, such expenses should be reasonable and not of the kind necessary for reclamation of the lands. The capital expenditure referred to in the section is to maintain the lands and not reclaim the lands. In the instant case, I think that the nature of work to be done is in the nature of reclamation and not maintenance of the lands. Under the circumstances, the tenant is not justified in calling upon the landowner to bear such an expenditure.

8. The Civil Revision Petition is allowed. But there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //