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Sarojini Ammal Represented by Power of Attorney Agent, A. Gopalan and ors. Vs. the State of Tamil Nadu Represented by the Secretary to Government, Revenue Department - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Reported in(1979)1MLJ425
AppellantSarojini Ammal Represented by Power of Attorney Agent, A. Gopalan and ors.
RespondentThe State of Tamil Nadu Represented by the Secretary to Government, Revenue Department
Cases ReferredKunjukutty v. State of Kerala
Excerpt:
- .....several years are entitled to continue in possession of the leasehold property if they pay the current rent alone, that no application for eviction can even be made for six months from the date of the publication of the act, that even tenants who have been evicted are enabled to get restoration of possession merely on payment of the current rent, that the provisions of the act which are drastic in nature and practically deprives the owners of the land of their lawful income from the properties, that while the owners are obliged to pay taxes and other rates to the state, they are deprived of the only income from which they can hope to meet those taxes and public charges and this virtually and in effect amounts to illegal confiscation of their properties.2. tamil nadu cultivating tenants'.....
Judgment:
ORDER

G. Ramanujam, J.

1. The petitioners in all these petitions are landlords who have let out their lands to tenants for cultivation and have either filed applications for eviction before the Revenue Court on the ground that the tenants have committed default in payment of the arrears of rent. All these petitions have been filed challenging the constitutional validity of the Tamil Nadu Cultivating Tenants' Arrears of Rent (Relief) Act, (Madras Act XXI of 1972), hereinafter referred to as the Act, on the ground that the provisions of the said Act are violative of Articles 14, 19 and 31 of the Constitution of India. According to them, the provisions of the Act practically liquidate the rights of the landlords and prevent eviction even when the tenants are admittedly in arrears, that the tenants who are in arrears for several years are entitled to continue in possession of the leasehold property if they pay the current rent alone, that no application for eviction can even be made for six months from the date of the publication of the Act, that even tenants who have been evicted are enabled to get restoration of possession merely on payment of the current rent, that the provisions of the Act which are drastic in nature and practically deprives the owners of the land of their lawful income from the properties, that while the owners are obliged to pay taxes and other rates to the State, they are deprived of the only income from which they can hope to meet those taxes and public charges and this virtually and in effect amounts to illegal confiscation of their properties.

2. Tamil Nadu Cultivating Tenants' Arrears e Rent (Relief) Act (Madras Act XXI of 1972) was passed by the State Legislature and received, the assent of the President on 9th August, 1972. The Act is intended to give relief to cultivating tenants in respect of certain arrears of rents. The preamble and the statement of objects and reasons of the Act which explains the necessity for the legislation state that the cultivating tenants have borrowed and added to their debts during the years of drought, that, they are not in a position to pay the arrears of rent due to indebtedness and poor economic conditions, that on account of default in the payment of arrears of rents, the landlords have initiated action against the cultivating tenants for eviction and for recovery of arrears of rent, and that in the interests of the general public and in order to obtain maximum advantage in the matter of production of food crops the cultivating tenants should be spared the distractions and expenditure involved in the litigation. In the above circumstances it was considered necessary as part of the agrarian reforms, to give relief to the cultivating tenants from the burden of discharging the arrears of rent on condition of payment of current rent due to the landlords and with that object, the above Act was enacted Section 3 of the Act provides for relief to the tenants on payment of arrears of rent outstanding on the 30th June, 1971 provided the cultivating tenants deposit the whole current rent that is rent due for the fasli year commencing on the 1st of July, 1971 and ending with 30th June, 1972, within 6 months from the date of publication of the Act, that is on 11th August, 1972. Section 4 is a deeming provision under which if any cultivating tenant paid on or after 1st July, 1972 any rent to the landlord or deposited into Court, it shall be deemed to be payment towards the current rent. Sub-section (3) of Section 4 however disentitled any cultivating tenant to claim any refund from the landlord, on the ground that the payment or deposit made on or after 1st July, 1971, towards the discharge of any arrears is in excess of the rent due as current rent. Section 5 prohibits any suit for recovery of arrears and for eviction of cultivating tenants within the period of six months from the date of publication of the Act. Section 7 provides for restoration of possession of land to cultivating tenants who have been evicted on or after 1st March, 1972, and before the publication of the Act on the ground of non-payment of rent, provided he pays the current rent. Section 9 of the Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in certain statutes. The provisions referred to above show that the main object of the Act is to give an option to the tenant to pay the current rent within a specified period if he is to have the benefit of all the outstanding arrears getting wiped off. The Act does not wipe out the entire dues payable by the tenants compulsorily.

3. According to the petitioners the Act takes away the right of the landlord to receive arrears of rent which is definitely 'property' within the meaning of Article 19(1)(f) of the Constitution, and such a right cannot be taken away except in certain circumstances and without paying compensation. Under the guise of this Act, it is said, the Government has only abolished all arrears of rent due by the tenants, but has also not given any exemption from land revenue, agricultural income-tan etc. It is also complained that the Act does not provide for any compensation payable to the landlords in respect of the arrears of rent which has been abolished or wiped out under the Act, that the Act is highly discriminatory and violative of Article 14 as it strikes only at a particular class of property-holders and that the provisions of the Act are violative of the fundamental right to hold property and to receive income therefrom as guaranteed under the Constitution. It is also stated by the petitioners that the reasons contained in the preamble as well as the statement of objects and reasons for enacting the legislation are neither true nor justify the deprivation of the landlords of their just dues from the tenants without any compensation, that the indebtedness of the tenant and the resultant inability to pay the arrears of rent is not a justification for depriving the landlord of his due share in the produce, that if the tenants are indebted, they can have the benefit of the Agriculturalists Debt Relief Act and that for failure of seasonal rains if the tenant was not able to realise the normal yield, he can obtain relief from the Revenue Court under the provisions of the Tamil Nadu Cultivating Tenants (Payment of Fair Rent) Act, 1956. Further, during the time of drought it has been a normal and routine procedure adopted by the State remitting land revenue either wholly or in part for the relevant fasli year. It is also pointed out that in the face of the specific provisions in the Cultivating Tenants (Payment of Fair Rent) Act. 1956 there is hardly any justification for total confiscation of all the arrears of rent that would accrue to the landlord prior to 1st July, 1971. It is also stated that in the last few years the quality and quantity of food production has increased manifold in the State and the price of paddy and other agricultural produce had also increased by 50 per cent, over the years and the seasons have been favourable and that the cultivating tenants are in fact getting a high return. They have been also given protection from eviction from time to time, for non-payment of rent to the landlord from a certain period. Under the Tamil Nadu Act XVI of 1968 the tenants were given time for payment of arrears in instalments. Therefore the reasons given in the statement of objects and reasons for bringing in the Act, according to the petitioners cannot be relevant or garments and may not justify the wiping out of the arrears of rent due by the tenants to the landlords for the period prior to 1st July, 1971.

4. It is no doubt true that under the provisions of the Act if the current rent payable by a tenant to the landlord in respect of the demised land is paid within six months from the date of commencement of the Act, the tenants will not be liable to pay the balance of the arrears. The question is whether such a deprivation violates Article 19(1)(f) and whether it is protected by Articles 31-A or 31-C.

5. According to the learned Counsel for the petitioner the wiping out of the arrears, if the current rent is paid by the tenant, will amount to confiscation and it will therefore be violative of Article 19(1)(f) of the Constitution. The petitioners also contend that the Act will not have the protection of Article 31-A as that provision covers only legislation for the acquisition by any State of estates or of any right therein as also legislation for the extinguishment and modifications of any rights in estates. The learned Counsel for the petitioners refers to the decision of the Supreme Court in Kunjukutty v. State of Kerala : [1973]1SCR326 and contends that in view of the said decision the impugned Act has to be struck down. It is pointed out that Section 73 of the Kerala Land Reforms Act, 1964 providing for discharge of arrears of rent which is similar to Section 3 of the impugned Tamil Nadu Act has been held to be violative of Article 19(1)(f) of the Constitution as it was not entitled to the protection of Article 31A of the Constitution. Section 73 of the Kerala Land Reforms Act, 1964, the constitutional validity of which was impugned in the Kunjukutty's case : [1973]1SCR326 reads as under:

73. Discharge of arrears of rent. - (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any contract, or in any judgment, decree or order of any Court or Tribunal, the landlord of a tenant specified in column (1) of the Table below shall be entitled to recover towards arrears of rent accrued due before the 1st day of May, 1958 and outstanding at the commencement of the Kerla Land Reforms (Amendment) Act, 1969, only the amount specified in the corresponding entry in column (2) of the Table.

This provision was challenged before a Full Bench of the Kerala High Court on the ground that the liability to pay the arrears of rent is a debt and the liquidation of such a debt either wholly or in part cannot be said to be an agrarian reform, and even if it is necessary to rehabilitate indebted tenants by relieving them of their liability to pay the arrears of rent that must, like any other measure for relief of indebtedness, be justified as a reasonable restriction in the interest of the general public within the meaning of Article 19(5) and that there is no material to show that it is reasonable. The majority opinion of the Full Bench was:

he effect of Section 73 is not merely to deprive the landlord of the charge conferred on him by Section 42 but to wipe off the debt itself and this debt not being an interest in the land, it seems to us clear that the section cannot have the protection of Article 31-A. That protection is afforded only in so far as the acquisition, extinguishment or modification of rights in an estate are concerned. That is an essential element of agrarian reform and the so-called incidental or ancillary provisions can get the protection only in so far as they are necessary for effectively implementing the reform or are otherwise an integral part of the reform. The liquidation of debt due from tenants cannot be said to be necessary for implementing the law relating to the acquisition, extinguishment or modification of rights in estates or an integral part of that law and cannot therefore have the protection of Article 31-A.

The majority also held that the provisions in Section 73 have not been shown to be a reasonable restriction in the interest of the general public so as to attract Clause (5) of Article 19 and therefore the section is violative of Article 19(1)(f). The said majority view was upheld by the Sunreme Court. Their Lordships of the Supreme Court expressed:

The liability to pay arrears of rent under the impugned Act, assuming the charge created by Section 42 is an interest in land is not a right in land, besides the liability being also a personal liability it would clearly amount to debt. Acquisition or extinguishment of such a personal liability for payment of money cannot be covered by Article 31-A. That money cannot be acquired is clear, as already pointed out, from the majority view of this Court's decision in Kameswar Singh's case : [1952]1SCR889 Looking at the table incorporated in Section 73 it is obvious that the amount of rent to be paid forgetting discharge of the whole debt has been arbitrarily fixed and does not seem to be founded on any rational, logical or just basis'...'We grant that amelioration of indebtedness of tenants, is a laudable and desirable object. But the person to whom the arrears of rent are due is also entitled to seek protection of his legitimate right and if the acquisition of arrears of rent is outside the protection of Article 31 A then the impugned provision cannot but be held invalid. It prima facie partakes of the character of forfeiture or confiscation of the discharged arrears. Article 39 of the Constitution to which reference was made can be implemented by other permissible means without violating or abridging the just and legitimate rights of those to whom the arrears of rents are due. Section 73, therefore, in our opinion, was rightly struck down by the majority opinion'.

6. It is submitted by the learned Counsel for the petitioners that the said decision of the Supreme Curt applies on all fours to these cases and that in the face of that decision the impugned Act cannot be held to be valid as its provisions violate Articles 14 and 19(1)(f) and it does not get the protection of Article 31-A.

7. However, on a close perusal of the provisions of the impugned Act we are satisfied that there is considerable difference between Section 73 of the Kerala Act and Section 3 of the Tamil Nadu Act. There, there is an automatic wiping out of a portion of the arrears of rent and the landlord cannot recover any arrears of rent in excess of the amounts mentioned in the table set out in that section. Such a wiping out of arrears had been made as an agrarian reform in the Kerala Land Reforms Act of 1964. The preamble to the said Kerala Act says that the Act is intended to bring in a comprehensive legislation relating to land reforms in the State of Kerala. The Act does not purport to be one for amelioration of indebtedness of tenants. Further, the Supreme Court has accepted the following reasoning given by the majority of the Full Bench of the Kerala High Court:

Provisions for the fixation of fair rent have been in force throughout the State at least from 1964; and in the Malabar area, from much earlier. For may years past, seasons have been favourable and yields have been good. The prices of agricultural produce have been high, while rents, even when payable in kind, are commuted into money at rates much less than the prevailing prices, and it is notorious that cultivators of land have been making big profits even after paying rent. The mere fact that since 1957 the Legislature has from time to time thought fit to stay proceedings for the recovery of arrears of rent is not enough to show that tenants were not in a position to pay rent, and there is nothing to show that the arrears of rent accrued due are anything more than what the landowner can reasonably ask for his share or the tenant can reasonably be expected to pay. There were statutes in force by which, on the payment of rent for one year or more, the entire arrears could be discharged, and it does not seem to us either a reasonable restriction on the rights of the landlords, or something calculated to further the interests of the general public that persons who declined to take advantage of these statutes and would not pay when they could, should be absolved of the liability to pay their due debts.

It is for the above reasons the Supreme Court held that Section 73 of the Kerala Act cannot be taken to be a reasonable restriction under Article 19(5) of the Constitution and that the same is not also protected by Article 31-A. But the Tamil Nadu Act merely gives an option to the tenants to avail of the concession by paying the current dues within a specified period. This option has been given, as is clear from the objects and reasons given in the Act, to ameliorate the conditions of indebtedness of tenants so as to enable them to fully concentrate on cultivation and increased production. The remission of outstanding arrears of rent, if the current rent is paid, by the impugned Act has been done as part of a measure to ameliorate the conditions of agricultural indebtedness and it is the case of the State that but for the passing of the said Act there would have been large scale eviction of the cultivating tenants for non-payment of the arrears of rent leading to agrarian unrest and consequent decrease in the agricultural production. It is also the contention of the State that the impugned Tamil Nadu Act will come under the protection of Article 31-A of the Constitution or in any event it will be saved under Article 31-C.

8. There cannot be any dispute that the right of the landlords to collect the arrears of rent due to them from the tenants is affected by the provisions of the impugned Act. Therefore, unless those provisions could be justified as a reasonable restriction under Article 19(5) of the Constitution, the same cannot be held to be valid. As already stated, the provisions of the Act give an option to the tenant to pay the current rent if he is to have the benefit of all the arrears of rent outstanding getting wiped off. The Act does not wipe out the entire dues payable by the tenants compulsorily. The said concession or benefit given to the tenants of paying the current rent to have the earlier arrears wiped out has been thought of by the Legislature in the interest of the general public to enable the cultivating tenants to spare themselves from the distractions and expenditure involved in defending actions by the landlords for recovery of arrears of rent or for eviction in order that the maximum advantage might result to the State in the matter of production of food crops. Having regard to the said object which has been specified in the objects and reasons set out the provisions of the Act have to be taken to be a reasonable restriction on the right of the landlords to recover the arrears of rent due by them or to evict the tenants for non-payment of rent.

9. Similar provisions occur in Section 15(1) of the Tamil Nadu Agriculturist? Relief Act, 1938 (Tamil Nadu Act IV of 1938), Section 55(1) of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Tamil Nadu Act XXVI of 1948), Sub-section (2-A)(i) of Section 56 of the Tamil Nadu Inam Estate (Abolition and Conversion in to Ryotwari) Act. 1963 (Tamil Nadu Act XXVI of 1963), and Section 41(1) of the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963 (Tamil Nadu Act XXX of 1963). The validity of the provisions relating to remission o' rent in the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 was upheld by this Court in an unreported decision in Raja Rao Suguna Kumaran v. State of Madras C.M.P. No. 781 of 1950 etc. In upholding the provisions of the said Act this Court observed as follows:

Obviously he (counsel for the petitioners) could not say that the arrears so wiped away were being acquired by the Government. So far as I understand him, his contention evidently was that the Legislature was not competent to enact such a provision. This ground is not open to the learned Counsel in view of the decision of the Federal Court in United Provinces v Atiqua Begum (1939) 40 F.L.J. 97 : (1940) F.C.R. 110 : 53 L.W. 397 : (1941) 1 M.L.J. 65 in which a similar provision was held to fall within the scope of Entry 21 in List II of Schedule 7 of the Government of India Act which included 'land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents.' In that case the United Provinces Government directed remission of rents in view of the unprecedented fall in the prices of agricultural produce. This remission was declared by the High Court unauthorised and inoperative. So in 1938 the Legislature passed an Act called the Regularisation, of Remission Act which precluded any question as to the validity of the orders of remission being raised in Courts. This Act was attacked as ultra vires of the Legislature and that it was not within the competence of the Provincial Legislature. It was held by the Federal Court that the impugned Act was a legislation with respect to the 'collection of rents' within the meaning of Entry 21, List II...I have no doubt that legislation with respect to the remission of rents is a matter included in item 21.

10. The validity of a similar provision in Section 56(2-A)(i) of the Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963 was questioned in Subbachariar v. State of Madras (1967) 1 M.L.J. 206. This Court upheld the provisions on the ground that the remission of rent was part of the agrarian reform and consequently the provisions enjoy the protection of Article 31-A of the Constitution. It was also held that the provision was within the competence of the State Legislature falling under Entry 18 of List II, and the relevant observations of the Court are as follows:

Now the field of legislation under Entry 18 of List II, covers relation of landlord and tenant and the collection of rents. There is no reason to limit the content of the Entry particularly the words 'the collection of rents'. It can well include remission of rents. It was observed by Gwyer, C.J. in the Federal Court in Atiqua Begum's case which reference to Entry 21 of the Provincial List corresponding to the present Entry 18 : 'The general descriptive words in item No. 21, include 'the collection of rents' and if a provincial Legislature can legislate with respect to the collection of rents, it must also have power to legislate with respect to any limitation on the power of a landlord to collect rents, that is to say, with respect to the remission of rents as well as to their collection'. Clearly the impugned provision is within the legislative competence of the State and no question of colourable legislation can arise.

The above case went up in appeal to the Supreme Court and the Supreme Court upheld the provisions on the ground that they fall within the competence of the State Legislature. The Supreme Court observed:

It was next urged that the provisions in the impugned Acts reducing the liability of the tenants in the matter of payment of arrears of rent, whether decreed or not were beyond the legislative competency of the State. Those arrears are either arrears of rent or debts due from agriculturists. If they are treated as arrears of rent then the State Legislature had legislative power to legislate in respect of the same under Entry 18 of List II of the 7th Schedule. If they are considered as debts due from the agriculturists then the State Legislature had competence to legislate in respect of the same under Entry 30 of the same List

In view of the above decision of the Supreme Court, the competence of the State Legislature to enact the impugned Tamil Nadu Act cannot at all be questioned. If the legislative competence cannot be questioned, then the only ground on which the validity of the Act could be questioned is that the benefits conferred on the tenants under Section 3 which certainly affects the landlord's right to collect arrears of rent is not a reasonable restriction coming under Article 19(5) of the Constitution.

11. The provisions of the impugned Act provides ameliorative reliefs to the cultivating tenants with a view to enable them to concentrate on agriculture without being distracted by the proceedings that are likely to be initiated by the landlords for eviction or for recovery of arrears of rent from the tenants. It must be noted that under the impugned Act the tenants do not get an automatic discharge of the arrears due by them. An option is given to them and if they want to claim the benefits of the Act they are bound to pay a portion of the rent in arrears. Time is fixed for the exercise of the option. By exercising the option the burden of previous arrears gets discharged and thereafter the tenants will apply themselves earnestly in the cultivation of the lands and increase food production for the benefit of the public Therefore the impugned measure can be taken to be a part of agrarian reform intended to better the conditions of agriculturists who work on the land and of lightening the burden on them of accumulated arrears of rent, for securing a common benefit of increased agricultural production. Hence the impugned provision must be taken to be a reasonable restriction under Article 19(5).

12. Though the State has also contended that in any event the impugned measure comes within the protection of Article 31-A based on the decision of the Supreme Court in K.W. Estates v. State of Madras : [1971]2SCR790 upholding the decision of this Court in Subbacharior v. State of Madras (1967) 1 M.L.J. 206 we are of the view that the later decision in Kunjukutty v. State of Kerala : [1973]1SCR326 dealing with the provisions of the Kerala Land Reforms Act, 1964 seems to take a slightly different view. But it is not necessary for us to go into that question as we are clearly of the opinion that Article 31-C which was introduced by the Constitution 25th Amendment Act. 1971 with effect from 20th April, 1971 will clearly protect the impugned measure. Article 31-C as amended says that no law giving effect to the policy of the State towards securing all or any of the principles laid down in part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away, or abridges any of the rights conferred by Article 14, Article 19 or Article 31 and that no law containing a declaration that it is for giving effect to such policy shall be called in question in any Court on the ground that it does not give effect to such policy. The proviso says that any law made by the State Legislature to have the protection of Article 31-C should have received the assent of the President. As already stated, the impugned Act has received the assent of the President. According to Article 39-C, one of the Directive Principles of the State Policy is to see that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. If for non-payment of arrears of rent, the tenants are to be evicted from the lands and the lands revert to the landlords, it will result in the concentration of the lands which are the means of production with the landlords and this will lead to the loss of production in agricultural produce which will be to the common detriment.

13. One additional point raised in W.P. Nos. 1135 and 1802 of 1973 is that the tenants in those cases are raising cash crops such as plantain and sugarcane and that by raising such cash crops they have ceased to be| covered by the provisions of the Cultivating Tenants Protection Act and therefore any arrears of rent due by them cannot be taken to be covered by the provisions of the impugned Act. It is true, Section 15 of the Cultivating Tenants (Payment of Fair Rent) Act, 1956 says that persons raising cash crops such as sugarcane, plantain, betelvines will not be entitled to the benefit of that Act. That will only mean that by raising cash crops they have ceased to be covered by that Act. The exemption provided under that Act is only for the purpose of that Act, and that will not enable the landlords to claim that the tenants are not cultivating tenants and therefore they re not entitled to the benefits of the impugned Act.

14. In the result, we uphold the validity of the Act and dismiss the writ petitions. There will, however, be no order as to costs.


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