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Nallanna Gounder Vs. Muthuswamy Gounder and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1970)1MLJ213
AppellantNallanna Gounder
RespondentMuthuswamy Gounder and anr.
Cases ReferredUnion of India v. Jubbi
Excerpt:
.....steers clear of all the said anomalies. a state can clearly be a landlord and the madras state is the landlord here. the act has been applied without question, to lands owned by juridical persons like deities, charitable institutions and trusts. a good part of the functions of the state are non-sovereign in the traditional sense of the word and it functions in those spheres very like a citizen. in the present case the state has granted a lease, and, in the matter of evicting the tenant who is now cultivating the land, for the purpose of inducting another tenant who may be prepared to pay more rent, how is the state different from other landlords like deities, charitable institutions, and so on? there is nothing in the provisions of the act suggestive of a distinction between..........and 25 cents, in senappiratti village, katut taluk, was leased out by the tahsildar acting for the state government by public auction to the plaintiff for a period of three faslis commencing from fasli 1353. on the expiry of the period of lease, again, at a public auction the plaintiff became the lessee of the land for faslis 1365 to 1368. taking the lease, the plaintiff duly executed a muchlika on 3rd january, 1958 in favour of the tahsildai, agreeing to pay the rent for the three faslis and undertaking to surrender possession of the suit land after the expiry of the lease. when on the expiry of the 2nd lease period, the tahsildar announced public auction of the leasehold right, the plaintiff objected to the auction being held, submitting that he was a cultivating tenant entitled to the.....
Judgment:

M. Natesan, J.

1. This Second Appeal raises the interesting question whether a leasee of agricultural land from the Government could, against the claim for possession by the Government on the expiry of the lease, rely upon the provisions of the Madras Cultivating Tenants' Protection Act (Act XXV of 1955). The State claims immunity and exemption from the provisions of the statute hereinafter referred to as the Act, and the Courts below have accepted the claim of the State.

2. The suit property, river Padugai Poramboke land of an extent of 3 acres and 25 cents, in Senappiratti Village, Katut Taluk, was leased out by the Tahsildar acting for the State Government by Public auction to the plaintiff for a period of three Faslis commencing from Fasli 1353. On the expiry of the period of lease, again, at a public auction the plaintiff became the lessee of the land for Faslis 1365 to 1368. Taking the lease, the plaintiff duly executed a Muchlika on 3rd January, 1958 in favour of the Tahsildai, agreeing to pay the rent for the three Faslis and undertaking to surrender possession of the suit land after the expiry of the lease. When on the expiry of the 2nd lease period, the Tahsildar announced public auction of the leasehold right, the plaintiff objected to the auction being held, submitting that he was a cultivating tenant entitled to the benefits of the Act. Over-ruling this objection, the auction was proceeded with, and the 1st defendant in the suit out of which the second Appeal arises, became the successful bidder at the auction, of the leasehold right. However, he could not get possession, in view of the contention put for ward by the plaintiff. Apprehending forceful eviction, the plaintiff filed the suit, now under consideration, for a declaration that he is entitled to the benefits conferred on cultivating tenants under the Act and for an injunction against the defendants from interfering with his possession of the suit land. The Court below, relying on certain early decisions of this Court prior to independence, and applying Section 3 of the Government Grants Act (Act XV of 1895), would uphold paramountcy of the provision in the lease deed of the plaintiff that he should surrender possession of the land at the expiry of the lease period, over the provisions of the Act, granting a cultivating tenant immunity from dispossession on certain conditions.

3. Two questions were argued before me : (1) Claim of immunity of the Government from the operation of a Statute unless the statute in express terms 01 by necessary implication bound the Government and (2) the paramountcy of the terms in a Government grant notwithstanding anything contained in any statute or enactment of Legislature, by virtue of Section 3 of the Government Grants Act.

4. It is not disputed that the plaintiff could claim to fall within the definition of a cultivating tenant under the terms of Madras Act XXV of 1955, if the Act could be availed of by him against the State. His claim that he took lease of the land for the purpose of agriculture for personal cultivation and was carrying on personal cultivation of the land, was not put in issue. Admittedly there was a tenancy agreement between the plaintiff and the State. Having entered on the land under the tenancy agreement, he is continuing in possession of the land after termination of the tenancy agreement. If the Act applied, under Section 3 of the Act he cannot be evicted from his holding or any part thereof, by or at the instance of the landlord, whether in execution of a decree or order of a Court or otherwise. Recourse can be had only under the provisions of the Act. The State is manifestly his lessor. The Act does not expressly exclude the State from the definition of landlord. Nor is the State specifically included in the definition of landlord in the Act. The Act defines 'landlord' in relation to the land held by a cultivating tenant, as 'the person entitled to evict the cultivating tenant from such holding or part'. If there is nothing else to consider, the State could be considered a landlord under the Act. There is no definition of the term ' person ' in the Act limiting it to natural persons, and it was not argued before me that the State should not be considered as a person. It is manifest that the word 'person' has been employed compendiously to cover all juristic entities that could evict a tenant the state can , if the context warrants, be regarded as a person ; See state of Bihar v. Sonabati Kumari : [1961]1SCR728

5. I may immediately take up for considerations the Government Grants Act (XV of 1895), an Act stated as intended to explain the Transfer of Property Act, 1882 so far as it related to grants from the Government and to remove certain doubts as to the powers of the Government in relation to such grants. The Preamble to the Act states that, as doubts have arisen as to the extent and operation of the Transfer of Property Act, 1882, and as to the power of the Government to impose limitations and restriction upon grants and other transfers of land made by it or under its authority and it is expedient to remove such doubts, the law was enacted. Of the two principal sections in the Act, Section 2 provides that the Transfer of Property Act as follows : Section 3, on which reliance is placed runs

All provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law , statute or enactment of the Legislature to the contrary notwithstanding.

6. The argument for the State based on Section 3 is : The leased deed has provided that the plaintiff shall surrender possession on the expiry of the three year period of lease. It may be that Madras Act (XXV of grants tenants, in certain circumstances, immunity from eviction and entitles them to continue in possession. By Virtue of Section 3 of the Government Grants Act, the provisions, restrictions, conditions and limitations of the lease deed ought to prevail over the statutory rights conferred on tenants under Madras Act (XXV of 1955). Though a point can be raised whether Section 3 Government Grant Act should not be limited in its scope having regard to the express object of the Legislation, the contention is not only prima facie appealing, but is supported by authorities.

7. In Murugesa Gramani v. Province of Madras : AIR1947Mad74 , the applicability of the Madras City Tenants Protection Act (Act III of 1922) to a lease of a plot of land by the Government meat came up for consideration. The lease deed provided for forfeiture and re-entry in certain circumstances. The tenant contended that he could be evicted, if at all only under the provisions of the City Tenants Protection Act. This Court held hat the Crown Grants Act prevailed over the City Tenants Protection Act and the terms of the lease could be enforced. As the lease provided that it should come an end on the expiry of three years, the lessee was bound by the covenant and had no right to be in possession after the expiry of the lease, notwithstanding the provisions of the Tenants Protection Act. There is also a Division Bench decision of this Court in Ullattuthedi Chovi v. The Secretary of State for India : AIR1921Mad409 , wherein it was held that if the terms of a lease granted by the Crown provided for surrender of the devised land by the lessee on six months notice, he could not resist a suit in ejectment by the Crown after the requisite notice, on the ground that he must be paid the value of his improvements under the Malabar Compensation for Tenants' Improvements Act. There is an earlier, decision of this Court in Kallingal Moosa Kutti v The Sectary of State for India (1920) I.L.R. 43 Mad. 65 : (1920) 37 M.L.J. 332, wherein it was held that, under Sections 2 and 3 of the Crown Grants Act the Government had power to impose restrictions in a lease made by it. a power which was not affected by the provisions of the Malabar Compensation for Tenants' Improvements Act. These decisions may not be good law, after the categoncal pronouncement of the Judicial Committee about the scope of Section 3 of the Crown Grants Act. In Jagannath Baksh v. United Provinces , after setting out the general proposition that the Crown cannot deprive itself of its Legislative authority by the mere fact that in the exercise of its prerogative it makes a rent of land within the territory over which such Legislative authority exists, the Judicial Committee proceeded to consider Section 3 of the Crown Grants Act and observed:

These general words cannot be read in their apparent generality. The whole Act was intended to settle doubts which had arisen as to the effect of the Transfer of Property Act, 1882, and must be read with reference to the general context and could not be construed to extend to the relations between a sanad holder and his tenants. Still less could they be construed to limit the statutory competence of the Provincial Legislature under the Constitution Act.

8. We are not concerned in the instant case with any provisions of the Transfer of Property Act. The tenant does not rely on any provisions of the Transfer of Property Act for continuance in possession. He relies upon an independent enactment, Madras Act (XXV of 1955). Section 2 of the Government Grants Act is out of way and the only question is whether Section 3 of the Government Grants Act (formerly Crown Grants Act) could be relied upon by the defendants. The decision of the Judicial Committee in Jagannath Baksh v. United Provinces , as to the limited scope of Section 3 has been followed by the Supreme Court in Collector of Bombay v. Nusserwanji : [1955]1SCR1311 , and the position now is, therefore, beyond question that Section 3 of the Government Grants Act saves a Government grant only in respect of provisions, restrictions, conditions and limitations over, which would be hit by the Transfer of Property Act. The Supreme Court observed:

Reading the enactment as a whole, the scope of Section 3 is that it saves ' provisions, restrictions, conditions, and limitations over' which would be bad under the provisions of the Transfer of Property Act, such as conditions in restraint of alienations or enjoyment repugnant to the nature of the estate, limitations offending the rule against perpetuities and the like. But no question arises here as to the validity of any provisions, restriction, condition or limitation over, contained in Exhibit-A on the ground that it is in contravention of any of the provisions of the Transfer of Property Act and there is accordingly nothing on which Section 3 could take effect.

9. The Government Grants Act thus being unavailable, the State sought to stand on thearchaic prerogative and immunity of 'the Crown' from operation of statutes. It was suggested that the State, by virtue of the prerogative right which had been conceded to the Crown, was not bound by any statute, whereby any prerogative right, title or interest belonging to it may be divested or abridged, unless the statute expressly named the State or bound it and property owned by it by clear indication. This plea, again, is not available to the defendants after the decision of the Supreme Court in State of West Bengal v. Corporation of Calcutta : 1967CriLJ950 , and Union of India v. Jubbi : [1968]1SCR447 . at 362 and 364 In State of West Bengal v. Corporation of Calcutta : 1967CriLJ950 , the Supreme Court considered the correctness of the former decision of the Court in Director of Rationing and Distribution v. Corporation of Calcutta : 1960CriLJ1684 , and disagreeing with the majority view therein, held:

On the other hand, the normal construction, namely, that the general Act applies to citizens as well as to State unless it expressly or by necessary implication exempts the State from its operation, steers clear of all the said anomalies. It prima facie applies to all States and subjects alike, a construction consistent with the philosophy of equality enshirned in our Constitution. The natural approach avoids the archaic and moves with the modern trends. This will not cause any hardship to the State. The State can make an Act, if it chooses, providing for its exemption from its operation. Though the State is not expressly exempted from the operation of an Act, under certain circumstances such an exemption may necessarily be implied. Such an Act, provided it does not infringe fundamental rights, will give the necessary relief to the Sate.

10. During the course of the discussion, the Supreme Court observed,:

We have no Crown : the archaic rule based on the prerogative and perfection of the Crown has no relevance to a democratic republic : it is inconsistent with the rule of law based on the doctrine of equality ;

11. In the latest case Union of India v. Jubbi : [1955]1SCR1311 a citizen applied under Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, for acquiring proprietary rights in Government lands set out in the application, claiming to be the cultivating tenant of those lands. He stated that he was the tenant of the Union of India in respect of the said lands, and that he was willing to pay compensation as provided by the Act. On the question of the applicability of a statute to the State and its immunity, the Supreme Court re-stated the present position thus:

The position now therefore is that a statute applied to State as much as it does to a citizen unless it expressly or by necessary implication exempts the State from its operation.

Proceeding the Supreme Court observed:

It is conceded that neither Section 11 nor any other provision in the Act contains any express exemption. Broadly stated, if the Legislature intended to exclude the applicability of the Act to the State it could have easily stated in Section 11 itself or by a separate provision that the Act is not to be applied to the Union or to lands held by it. In the absence of such a provision, in a constitutional set up as the one we have in this country, and of which the overriding basis is the broad concept of equality, free from any arbitrary discrimination, the presumption would be that a law of which the avowed object is to free the tenant of landlordism and to ensure to him security of tenure would bind all landlords irrespective of whether such a landlord is an ordinary individual or the Union.

12. The following remarks of the Supreme Court, when examining the question whether the statute in that case by necessary implication exempted the State, give a clear guidance for the present case also:

It is clear that the object of the Act was to abolish big landed estates and alleviate the conditions of occupancy tenants by abolishing the proprietary rights of the land-owners in them and vesting such rights in the tenants. That being the paramount object of the Legislature, it is hardly likely that it would make any discrimination between the State and the citizen in the matter of the application of the Act. This is especially so because if such a discrimination were to be brought about through a construction suggested by the State it would result in an anomaly in the sense that whereas occupancy tenants of lands owned by citizens would have the ' benefit of such a beneficent legislation ' occupancy tenants of lands owned and held by the State would not get such benefit. An intention to bring about such a discrimination against the latter class of tenants cannot be attributed to the Legislature whose avowed object was to do away in the interest of social and economic justice landlordism in the State.

13. Now the Madras Cultivating Tenants Protection Act under consideration does not specifically exempt lands leased by the State to a tenant from the operation of the Act. It is relevant here to note that the Madras Buildings (Lease and Rent Control) Act, 1960, in Section 10, specifically provides that nothing contained in the section shall apply to a tenant whose landlord is the Government. This exemption may be seen even in the earlier Rent Control Enactment of 1949. I can see nothing special in the Act now under consideration to conclude that it exempts the State by necessary implication. The relationship that is postulated for applicability of the Act is that of landlord and tenant. A State can clearly be a landlord and the Madras State is the landlord here. The object of Madras Act (XXV of 1955) is the protection of a cultivating tenant from eviction. The preamble states that it is necessary to protect cultivating tenants in certain areas in the State of Madras from unjust eviction. What is unjust eviction has to be looked for in the Act itself; that eviction would be unjust which is not permitted by the Act. Section 3 of the Act puts an embargo on all evictions except under the provisions of the Act. Any removal of a cultivating tenant from the land, outside the provisions of the Act will be unjust, and what is there relevant in the context to infer that the Legislature intended to discriminate between tenants of Government lands and tenants holding from other landlords?

14. It is contended for the State that Section 4-A of the Act provides for a landlord to resume possession, from any cultivating tenant, half the extent of lands leased, for the purpose of personal cultivation by the landlord, and that, as personal cultivation involves contribution of one's own physical labour or that of the members of his family, an artificial person cannot be a landlord. This argument assumes that that every landlord must be entitled and qualified to resume possession of land for personal cultivation, an assumption not warranted. Section 4-A came in by an amendment of the original Act in 1956. When deeming entitles complying with certain legal formalities as persons, law, by analogy to the extent and consistent with the purposes of the creation, takes rules applicable to ordinary persons and extends them to the artificial persons. All the rules that apply to natural persons may not be extended to artificial persons and need not necessarily be extended. There is no logical compulsion to make the analogy complete. The Act has been applied without question, to lands owned by juridical persons like deities, charitable institutions and Trusts. The Public Trusts Act (LVII of 1961) does recognise personal cultivation by public trusts and the definition of personal cultivation is the same as in Act (XXV of 1955). In fact, Act (LVII of 1961) recognises the applicability of the Cultivating Tenants Protection Act to Public Trusts. It is unnecessary to consider whether the State cannot have personal cultivation if it should be held to be a necessary qualification for a landlord, and whether the fiction creating a person cannot, in the context, be extended to contribution of physical labour by the accredited limbs of that person, notwithstanding the strict requirement of the definition of personal cultivation. I see no ground for straining to find implied exemption of the State from the provisions of the Act. It is no more a sovereign who has to hug at prerogatives and cling to exemptions. We have a democratic Republic, a service State with the ultimate sovereignty vested in the people. A good part of the functions of the State are non-sovereign in the traditional sense of the word and it functions in those spheres very like a citizen. In the present case the State has granted a lease, and, in the matter of evicting the tenant who is now cultivating the land, for the purpose of inducting another tenant who may be prepared to pay more rent, how is the State different from other landlords like deities, charitable institutions, and so on?

15. My attention has not been drawn to any provision in the Act other than Section 4-A which necessarily warrants exemption of the State from the provisions of the Act. There is nothing in the provisions of the Act suggestive of a distinction between lands held by citizens, Devasthanams, charitable institutions, Trusts and the like and lands held by the State. It is certainly open to the State if it considers necessary in the larger interests of the State to get itself exempted by appropriate amendment of the Statute. As the statute stands, the State can claim no exemption. It follows that the plaintiff is entitled to declaration as prayed for. But the injunction cannot be granted in absolute terms. If the plaintiff could be evicted under the provisions of Madras Act (XXV of 1955), the State can certainly do so.

16. In the result, the decrees and judgments of the Courts below are set aside and the suit is decreed accordingly. The Second Appeal is allowed with costs. Leave granted.


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