w w w . L a w y e r S e r v i c e s . i n


EXECUTIVE OFFICER, SRI M.S.N. CHARITIES, KAKINADA VERSUS PILLA RAMARAO

    W.P.11406 Of 1989
    Decided On, 06 June 2000
    At, High Court of Andhra Pradesh
    By, THE HONOURABLE CHIEF JUSTICE MR. M.S. LIBERHAN
    By, THE HONOURABLE MR. JUSTICE B. SUDERSHAN REDDY & THE HONOURABLE MR. JUSTICE Y.V. NARAYANA
    For the Appearing Parties: K.V. Ramana Murthy, Koka Raghava Rao, Advocates.


Judgment Text
M.S. LIBERHAN, C.J.


( 1 ) THE petitioner - A Charitable Institution (hereinafter referred to as "landlord") - applied for resumption of half of the wet leasehold land for personal cultivation under Section 12 of the Andhra Pradesh (Andhra Area) Tenancy Act 1956 (hereinafter referred to as "the Tenancy act") from the respondent (hereinafter referred to as "tenant ). Tenant was in possession of 21 acres and 64 cents. Lease commenced in the year 1957.


( 2 ) THE tenant objected to the resumption, inter alia, on the ground that the petition is barred by time. It lacked bona fides. There is non-compliance of Rule 5 of the Andhra pradesh (Andhra Area) Tenancy Rules, 1980 (hereinafter referred to as "tenancy rules"), as the petition is not accompanied by the certified extract of village record showing the location and extent of the entire holding held by the landlord and the cultivating tenant. The maintainability of the petition was challenged.


( 3 ) THE Special Officer held: (I) The ejectment was sought in good faith and bona fidely. No mala fides can be attributed to the institution, (ii) Since the A. P. Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (hereinafter referred to as "the Ceiling act") is not applicable to the lands held by the religious, charitable and educational institutions, such as the petitioner landlord; consequently the proviso to Section 12 of the Tenancy Act would not apply to the landlord's land, (iii) The land resumed does not exceed 2/3rd of the ceiling area as defined by Section 3 (c) of the Ceiling Act as required to be proved under the Tenancy act by the landlord. The Special Officer ordered resumption.


( 4 ) THE tenant challenged the order of resumption in appeal before the Additional district Judge (hereinafter referred to as the "appellate Authority") in view of law laid down in C. Sunya Rao vs. District Judge, West godavari to the effect that Section 12 is self contained Code so far resumption by landlord from tenant is concerned. It was further laid down that whether the landlord is exempted from the operation of the ceiling Act is immaterial, that the ceiling prescribed by Section 12 (1) has to be applied while ordering resumption, filing of application in Form IV as ordained in rule 5 is not mandatory and that the requirement is availability of relevant particulars prescribed and substantial compliance is good enough. Appellate authority held that requirement contained in sub-rule (2) to the effect that certified extract of village record showing the location and extent of entire holding held by landlord and tenant to be filed, is mandatory but it need not be filed with the application and that in the absence of non-production of records, facts can be proved by evidence. It was further held that necessary particulars as required by Rule 5, though not in Form IV, are not furnished and therefore in their absence it is not possible to come to a conclusion whether the ceiling prescribed by Section 12 (1) has to be applied and observed while ordering resumption. In view of this, the Ceiling Act is applicable to the lands held by landlord and as such Section 12 of the Tenancy Act is also applied. It was observed that the finding of the Special Officer that since the ceiling Act is not applicable to the land held by the landlord, consequently proviso to Section 12 of the Tenancy Act would not apply, could not be sustained. In the absence of the necessary particulars under rule 5 of the Tenancy Rules/ the petition is liable to be dismissed. Appeal was allowed and the petition for resumption was rejected.


( 5 ) THE petitioner impugned the order of the Appellate Authority, inter alia, contending that in view of the law laid down in C. Surya Rao's case (supra), where compliance of Rule 5 of the Tenancy Rules was found to be not mandatory, the application for resumption of the land under Section 12 (2) of the Tenancy Act is required to be in Form IV, which envisaged the specific particulars to be furnished and the same having been furnished, the petition for resumption could not be dismissed especially when the provisions of the Ceiling Act are not applicable to the petitioner or to its land. Tenant in order to claim the benefit of the provisions of the ceiling Act under the Tenancy Act has to disclose and prove the facts with respect to the leased land under his cultivation. Tenant cannot avail of any benefit under the tenancy Act for the land exempted under the Ceiling Act.


( 6 ) THE learned single Judge observed that the law laid down in C Surya Rao's case (supra) is to the effect that though the landlord is exempted from the provisions of the Ceiling Act, still the ceiling limit prescribed under the Tenancy Act is applicable and unless the ceiling limit is ascertained under Section 12 (1) of the tenancy Act, no resumption can be granted. The learned Judge further observed that section 23 (b) of the Ceiling Act says that nothing in the Act shall apply to the lands held by religious, charitable or educational institutions, including a wakf, of a public nature existing on the date of commencement of this Act. When once the ceiling Act exempts the religious institutions from the provisions of the ceiling Act, the question of determining the ceiling limit under Section 12 (1) of the tenancy Act does not arise. Therefore, without determining the ceiling limit under section 12 (1) of the Tenancy Act, there can be resumption of land under Section 12 of the Tenancy Act. Thus, the law laid down in c. Surya Rao's case (supra) requires reconsideration.


( 7 ) IN the view of above referred circumstances the case came up for consideration before the Full Bench.


( 8 ) THE conspectus of the law laid down in C. Surya Rao's case (supra) in the context of the facts is that the manager of the temple sought the ejectment of the tenant. The Division Bench while considering the question firstly with respect to the good faith of the landlord held that it is a question of fact to be decided in the facts and circumstances of the case, secondly the fact of the application filed by the temple being not in conformity with the tenancy Rules as applicable the petition is liable to be dismissed and thirdly it was held that it is immaterial whether the landlord is exempted from operation of ceiling Act or not, for the purpose of section 12, that the ceiling prescribed by section 12 (1) has to be applied and observed while ordering resumption and that it cannot be said that the ceiling prescribed in Section. 12 (1) does not apply to the landlord temple. .


( 9 ) IT would be expedient to notice the provision, 12 (1) of the Tenancy Act, which is reproduced hereunder:"12. (1) Notwithstanding anything in section 10, a landlord who in good faith requires for his personal cultivation any land leased by him to a cultivating tenant shall be entitled to resume possession of the land, so however, that the total extent of the land, held by the landlord under his personal cultivation after such resumption does not exceed two-thirds of the ceiling area as defined in clause (c) of Section 3 of the Andhra pradesh Land Reforms (Ceiling on agricultural Holdings) Act, 1973: provided that such right of resumption shall be limited to an extent which shall, after such resumption leave, with the cultivating tenant an area which is not less than one half of the land held by him under the lease prior to such resumption, explanation:- In determining the total extent of land held by a landlord under his personal cultivation, any transfer of land under his personal cultivation made on or after the 14th march 1970 shall be disregarded and the land so transferred shall be deemed to be held under his personal cultivation. "


( 10 ) THE Scheme of the Ceiling Act is to provide a ceiling on the agricultural holdings. Section 4 provided a ceiling area, which a person could hold. e. , one standard holding. Section 4 provided for holding of additional holding to one standard holding. Section 4-A provided for the increase in the ceiling area under certain circumstances. Standard Holding has been defined by Section 5 and table of holding, which a person can hold, was provided under the Ceiling Act. Maximum limit of an agricultural holding which a person can hold in the table of particular class of land is 21. 58 hectares. e. , 54 acres. Section 7 provided that in case of land being transferred by any of the modes to affect or defeat the object of the Ceiling Act resulting in reduction of the ceiling of agricultural holdings shall be ignored for the purpose of computation of ceiling area. Section 8 ordained the holder of excess land than the ceiling to furnish a declaration of his holding together with such land in the prescribed form to the Tribunal. In case of his holding in excess limit, Section 10 required him to surrender the land held in excess of the ceiling limit. Specific provisions have been made by Section 13 to exclude the land from the ceiling land to the extent of the land with the protected tenant. Similar provisions were made for acquisition of the land in future beyond the ceiling limit, etc. Section 23 provided the exemptions from this Act. Section 23 runs thus: ?nothing in this Act shall apply to the following lands viz. , lands held by religious, charitable or educational institutions, including a wakf of a public nature existing on the date of commencement of this Act. "


( 11 ) THE Tenancy Act was enacted with an object of protecting the tenants from unjust eviction. It provided for rents, rates and mode of payment. Provisions for inheritance of tenancy, conditions of tenancy, regulating the relationship of landlord and tenant, terms of lease, termination of tenancy, eviction of the tenants under particular circumstances, preferential right of purchase and providing that neither the lessee nor the landlord would be entitled to hold or be in possession of land either as owner or a cultivating tenant or both, exceeding the ceiling limit provided by the ceiling laws.


( 12 ) WITH the above referred object in view, relevant provisions for termination of tenancy or resumption of tenanted land were enacted. Section 10 enumerated the rights of a tenant in possession of the land on the commencement of the Tenancy (Amendment) Act of 1974 (I) the tenant shall be deemed to be in perpetuity. (II) Tenancy created after 1974 would before a minimum period of six years by writing specifying the holdings, its extent and rent payable thereof with such other particulars as prescribed. (III) on expiry of lease-period, lease shall be renewable successively for a minimum period of six years at a time subject to the same terms and conditions as under the original lease. It further conferred a right on a leassee to incur loan from specified institutions in the statute and create a liability in favour of loaning institutions who will be able to cause the lessee's interest to be sold and the proceeds to be applied to such loan.


( 13 ) THE above referred rights of a tenant are subject to the rights of the landlord specified under Sections 12 and 13. They envisage that the rights of lessee to be heritable subject to the rights of the landlord specified as referred above. The heirs have been specified and in the absence of the specified heirs the lessee's rights would be deemed to have been extinguished. The landlord has been conferred with a right to resume the possession of the land wherein (I) he requires the lease land for his personal cultivation in good faith; (ii) the resumption of the land for personal cultivation is restricted to the extent so as the land possessed by the landlord, including the land resumed, would not exceed 2/3rd of the ceiling area as defined by the Ceiling act of 1973. Further the right of the landlord for possession after resumption is circumscribed so that the minimum land left with the tenant after resumption and taking possession by the landlord is one half of the land held by him under lease prior to resumption. Section 12 statutorily provided the mode of calculating the total extent of land held by the landlord in his personal cultivation. e. , any transfer of land under his personal cultivation made on or after 14-3-1979 shall be disregarded and would be deemed to be in his personal cultivation. Procedural methodology for seeking resumption is provided (I) by making an application within six months from the date of commencement; (ii) on the end of the period of lease where the tenancy commenced after 1974 and in case of renewal at the end of renewal by giving to the cultivating tenant and Special Officer, four month's notice expiring with the period of lease or renewed lease. The statutory period for seeking resumption provided by it has granted an exemption in case of persons suffering physical and mental disability, persons serving in armed forces, widow. It further provided that the period for seeking resumption is only extended by a period of six months from the date disability ceased. The right of resumption can be exercised once in respect of the holding of a cultivating tenant. In order to provide further safeguard to the tenant, if the landlord having resumed possession of the land under the veil of personal cultivation but fails to personally cultivate the land resumed within one year from the, date of resumption or discontinues the same for not less than one year within a period of six years, the landlord is liable to restore the possession to the cultivating tenant with the same rights and on the same terms and conditions as the lands were held before resumption. Except conferring a right to resume the land of not more than half of the leased land for personal cultivation. e. , leaving half of the lease land in possession of lessee and further subject to the condition that the landlord does not hold more than 2/3rd of the ceiling provided under the Ceiling Act, the landlord has been restrained from ejecting the tenant except where (I) the tenant has failed to pay the rent within a period of one year from the dates stipulated in the lease deed or according to the usage of locality in the form prescribed; (II) the tenant is guilty of an act causing permanent injury to the land; (III) sublets the leased land; (IV) violates the conditions of tenancy regarding usage to which the land could be put or the tenant has denied the landlord's title or has failed to comply with the directions issued by the Special Officer or the District Judge, under the Act.


( 14 ) THE State Government in conformity with Section 19 of the Tenancy Act, framed the Andhra Pradesh (Andhra Area) tenancy Rules, 1980 for making enquires, hearing appeals, mode of service of notice, execution or enforcement of orders. The procedure prescribed for seeking ejectment of the tenant provided that the landlord requiring the resumption for his personal cultivation shall make an application in the prescribed From IV to the Special Officer within whose territorial jurisdiction the land is situate. It ordained that the application should be accompanied by the certified extract from the village record showing the location and extent of the entire holding held by the landlord and the cultivating tenant. The Special Officer, on receipt of application and after serving a notice on the tenant within the specified period, conduct an enquiry to determine whether the landlord can resume the land for personal cultivation. Rule 5 of the tenancy Rules provides only the procedural aspect required for resumption to be undergone by the Special Officer and requirement to be complied with by the landlord seeking resumption. No penal consequences have been provided for the non-compliance of Rule 5. It is axiomatic that the procedural laws are made to do justice and meet equity and not to penalise a party to the lis.


( 15 ) IT is categorically discernible that the purpose and object of the Act is to provide a limited right to the land owner to resume the land for self-cultivation. Provisions have to be expounded according to manifest and express intention in the language of the statute. The legislation being expropriator legislation has to be strictly construed. A person cannot be deprived of his property or his right to use except in accordance with law.


( 16 ) THE first question that requires to be determined and put forth before us is, whether the provisions of the Ceiling Act would be applicable to the landlord temple seeking resumption of leased land from the tenant.


( 17 ) READING of Section 23 of the Ceiling act makes it categorically discernible that the provisions of the Ceiling Act do not apply to the temple. In the result, the temple is at liberty to hold land beyond the ceiling limit prescribed under the Ceiling act. The Ceiling Act does not regulate the relationship of landlord and tenant. It caters to the different objects of the legislation bringing about social reforms and providing respite to the poor agriculturists against the concentration of wealth in the hafids of a few privileged capable of holding lands. Though it serves the same basic purpose as the tenancy laws that the land is meant for tillers envisaging more protection and security to the tillers but in the same breath does not deprive the proprietors of the land denuding their right to hold land within a ceiling limit, providing equal opportunity to all citizens of equal holding of the agricultural land.


( 18 ) ON reading Section 12 of the Tenancy act, we have no hesitation to hold that the ceiling provided under the Ceiling Act would not be applicable as such to the temple lands or the temple for the purposes of vesting of the land beyond the ceiling limit in the State or the provisions of the ceiling Act would not be applicable to the temple lands creating rights and liabilities of the land owner with respect to the land beyond the ceiling or within the ceiling under the Ceiling Act.


( 19 ) THE Tenancy Act providing for regulating the relationship of landlord and tenant, etc. , as referred to in the earlier part of the judgment, provides sine qua nan for a landlord to seek resumption of land for such cultivation. It is quite essential for the landlord to satisfy for seeking resumption of the land for self-cultivation from the possession of the lessee; (1) that the landlord requires the land for his personal cultivation in good faith, (2) that he does not plough the land under his personal cultivation after such resumption sought more than two-third is ceiling area as defined in clause (c) of Section 3 of the andhra Pradesh Land Reforms (Ceiling on agricultural Holdings) Act, 1973, (3) the resumption would be limited to an extent that after such resumption being allowed that minimum half the land held by the cultivating tenant under his lease prior to such resumption remains with him, and (4) that resumption could be ordered only once from the tenant.


( 20 ) IN our considered view, incorporation of provisions of the Land ceiling Act in the section is only to the limited extent. e. , with respect to measurement of the area which a landlord to take possession or resumption of tenancy from the tenant, provided he is not in self-cultivating possession of the specified area under the statute. Incorporation of provisions of A. P. Land Ceiling Act is only intended to provide a yardstick to measure the land or the area and the sine qua non under what condition the resumption from the tenant can be ordered. Mere providing of methodology to measure the land and the requirement of the landlord for self-cultivating, provided he is not already in occupation of the land specified under the statute in his self-cultivation, would not ipso facto attract the provisions of the Land ceiling Act as such. Incorporation of the provisions of the Act is limited. It is neither incorporation of an Act as such nor it denudes the right of the landlord to be exempted from the operation of the Ceiling act. Provisions do not run contrary to each other, though in their specified fields. Thus, in our considered view, providing exemption from the operation of Ceiling act to temple or temple lands is of no consequence and is not attracted to the tenancy Act, except the mode of calculating the land and the extent to which the order of resumption can be passed as well as subject to the condition that the landlord should not be in possession of land under self cultivation beyond the limit prescribed under the Tenancy Act.


( 21 ) THE second question arises for consideration is, whether for non-compliance of Rule 5 by not filing necessary particulars, the petition is liable to be dismissed.


( 22 ) THE Andhra Pradesh Tenancy Rules, 1980 provide for the procedure and mechanism for a landholder requiring resumption of leased land from the cultivating tenant for his personal cultivation that he would apply in Form IV an application to the Special Officer in whose jurisdiction land is situated. It is well established that procedural rules are required to meet the ends of justice and any irregularity in compliance of the procedural rules, unless not specifically provided for, cannot be treated as fatal. A person cannot be non-suited on any irregularity. There is no gainsaying that the application was in form V. Quit essentials prescribed in the form. e. , name of the applicant/ particulars of the total land held by the applicant, area under his personal cultivation, area leased out, particulars of land to be resumed and land which will be left with the cultivating tenant have been complied with. It is for the tenant, if he claims that any of the particulars are not correct or if he claims any exception or protection provided by section 12 for protecting his possession to the extent of half the land in his cultivating possession or his landlord having no right of resumption in the eventuality of his possession of two-third of the area provided by the Ceiling Act in his self-cultivation, to allege and prove. It is in conformity with the established norm of evidence that it is positive which is required to be proved. Petitioner having done the act in conformity with the Rules prescribing the mode of doing it, all other modes would be deemed to be complied with.


( 23 ) IN our considered view, in the totality of the circumstances referred to above and in the absence of providing for consequences for non-compliance of procedural rule, it is well established that the rule will be deemed to be directory only.


( 24 ) CONSEQUENTLY, we affirm the law laid down by the Division Bench that application in the prescribed form is merely regulatory and directory.


( 25 ) FOR the reasons recorded above

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, we are of the considered view: (I) The provision of exemption of the temple land from the operation of the Ceiling Act is of no consequence. (II) Temple lands would be exempt from the operation of the Ceiling act. (III) The provisions of the Ceiling Act to the extent incorporated in Section 12 of the Tenancy Act providing the yardstick as to the extent resumption can be ordered or the landlord can resume the tenanted lands to the extent provided by section 12 of the Tenancy Act. (IV) The measurement in terms of the ceiling Act has only been incorporated in Section 12 of the tenancy Act for and to the extent and subject to the area in possession of the landlord, tenanted land can be resumed. (V) Maximum extent of land, which a landlord can resume, is half of the tenanted land in possession of the tenant under the lease subject to the condition that the landlord does not possess under self-cultivation more than 2/3rd of the ceiling limit. (VI) Resumption can be sought only once. (VII) Resumption can be ordered for self-cultivation if sought in good faith. (VIII) Non-compliance of Rule 5 is an irregularity. Substantial compliance. e. , making the application in the form prescribed is a sufficient compliance of the procedural rule. (IX) The burden of proof is on the tenant in order to avail of an exception from resumption claimed by the landlord in the said facts. Therefore, we answer the questions as above. ( 26 ) IN view of the fact that the whole case was referred to the Full Bench on a question of fact, nothing has been pointed out during the course of the arguments that the temple is in possession of more than 2/3rd of the area provided by the Ceiling Act and the tenant has not been left with half of the tenanted land under his cultivation. Nothing has been argued or pointed out to us that after resumption of half the tenanted land, the area in possession of the temple would exceed the 2/3rd area provided by the Ceiling Act. ( 27 ) IN view of the finding recorded on fact as a question of fact and having not been addressed to us beyond what has been referred above, if we may hasten to add no defect in the form prescribed having been pointed out, the judgment of the Additional district Judge cannot be sustained. Consequently, the Appeal is allowed. The order of the Additional District Judge is set aside and that of the Special Officer is restored. The appellant would be entitled to resume the possession of half the tenanted land claimed by them. We order accordingly. No order as to costs.
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