# D.8. OMllGmmal .!Mi v. NGaGf&G• Sanaba•

- **Citation:** [1964] 7 S.C.R. 197
- **Court:** Supreme Court of India
- **Decided:** 1964-03-13
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-8-omllgmmal-mi-v-ngagf-g-sanaba-3100
- **Pages:** 8

## Headnote

7 S.C.R.
SUPREME COURT REPORTS
197
D. S. CHELLAMMAL ANNI
v.
NASANAN SAMBAN
fP. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J. c. SHAH,
N. RAJAGOPALA AYYANGAR AND S. M. SJKRI, JJ.J
Madras Cultivating Tenants Protection Act (XXV of 1955),
JI. 3 and Madras Cultivating Tenants (Payment of Fair Rent)
Act (XXIV of 1950), s. 7-Scope of.
Practice-High Court-Revisional jurisdiction-Interference
by Supreme Court under Art. 136 of Constitution.
The respondent is a cultivating renant of the appellant.
After harvesting he gathered the crops and brought the grain
to the threshing floor. He measured the crops and offered 40
per cent of it to the Landlord as rent as provided by the. law
but the landlord wanted 60 !J<'r cent as his share. On the
failure of the landlord or his agent to take his legally due
share after repeated requests and after information and complaint to the police and revenue authorities the respondent
removed and sold the cropS when he found that the crops
would be· spoiled by rain. Thereafter he sent by money order
fo the landlord the market value of the 40 !J<'r cent of the crops.
The landlord refused to receive the amount and he filed a
petition under s. 3(4)(a) of the Madras Cultivating Tenants
Protection Act, 1955 for the ejectment of the respondent before
the Revenue Divisional Officer. The Revenue Division.al Officer
held that though the respondent was right in insisting on
determining only 40 per cent of the produce he was not justified in removing the crops. He held that he should have deposited the rent in court or paid it to the landlord as provided
by law. Since he had not done these he held that he was not
entitled to invoke the discretionary power of
the Revenue
Divisional Officer to get an extension of time for the deposit
of rent and the officer . therefore ordered the ejection of the
respondent.
A revision petition filed by the respondent before the High
Court was allowed and the order of ejectment was set aside.
The present appeal was filed on special leave granted by this
Court.
The appellant contends that since the respondent has
transgressed s. 7 of the Madras Cultivating Tenants (Payment
of Fair Rent) Act, 1956 by removing the produce from the
threshing floor he cannot claim the protection of that Act.
Secondly it was submitted that since the respondent did not
pay the rent as contemplated by s. 3(3) of the Protection Act he
was not entitled to the protection• of the Act. It was further
contended that the High Court was not justified in interfering
with the exercise of discretion by the Revenue Divisional Officer.
Held: (i) S. 7 can be transgressed in two ways viz., (1)
when the tenant does not bring the crop to the threshing floor
or (2) having brought it to the threshing floor he removes any
portion of it at such time or in such manner as to prevent the
division thereof at the proper time. In the present case it is
admitted that the respondent brought the crop to the threshing
floor. From the proved facts of this case that the respondent
\.
1964
D.8. OMllGmmal
.!Mi
v.
NGaGf&G• Sanaba•
198
SUPREME COURT REPORTS
(1964]
was always prepared for the division of the crops. and that it
was t~e insistence of the appellant for 60 per cent of the crops
and his refusal to accept his due share that prevented division
and that, the crops were actually measured by Revenue Inspector and it was to prevent deterioration of the crops that the
respondent removed it, it is clear that the respondent has not
removed the crops to prevent division. Therefore it cannot
be said that there was a transgressi0n of s. 7 on the part of
the respondent.
'
(ii) Since the respondent did not pay the rent within the
time and in the way contemplated by s. 3(3) of the Protection
Act the case is covered by s. 3(2) of the Act. That gave the
appellant a cause of action to apply for the ejectment of the
respondent under s. 3(4} of the Protection Act. But even though
the ' appellant was entitled to apply, the Revenue Divisional
Officer was not bo

## Text

7 S.C.R.
SUPREME COURT REPORTS
197
D. S. CHELLAMMAL ANNI
v.
NASANAN SAMBAN
fP. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J. c. SHAH,
N. RAJAGOPALA AYYANGAR AND S. M. SJKRI, JJ.J
Madras Cultivating Tenants Protection Act (XXV of 1955),
JI. 3 and Madras Cultivating Tenants (Payment of Fair Rent)
Act (XXIV of 1950), s. 7-Scope of.
Practice-High Court-Revisional jurisdiction-Interference
by Supreme Court under Art. 136 of Constitution.
The respondent is a cultivating renant of the appellant.
After harvesting he gathered the crops and brought the grain
to the threshing floor. He measured the crops and offered 40
per cent of it to the Landlord as rent as provided by the. law
but the landlord wanted 60 !J<'r cent as his share. On the
failure of the landlord or his agent to take his legally due
share after repeated requests and after information and complaint to the police and revenue authorities the respondent
removed and sold the cropS when he found that the crops
would be· spoiled by rain. Thereafter he sent by money order
fo the landlord the market value of the 40 !J<'r cent of the crops.
The landlord refused to receive the amount and he filed a
petition under s. 3(4)(a) of the Madras Cultivating Tenants
Protection Act, 1955 for the ejectment of the respondent before
the Revenue Divisional Officer. The Revenue Division.al Officer
held that though the respondent was right in insisting on
determining only 40 per cent of the produce he was not justified in removing the crops. He held that he should have deposited the rent in court or paid it to the landlord as provided
by law. Since he had not done these he held that he was not
entitled to invoke the discretionary power of
the Revenue
Divisional Officer to get an extension of time for the deposit
of rent and the officer . therefore ordered the ejection of the
respondent.
A revision petition filed by the respondent before the High
Court was allowed and the order of ejectment was set aside.
The present appeal was filed on special leave granted by this
Court.
The appellant contends that since the respondent has
transgressed s. 7 of the Madras Cultivating Tenants (Payment
of Fair Rent) Act, 1956 by removing the produce from the
threshing floor he cannot claim the protection of that Act.
Secondly it was submitted that since the respondent did not
pay the rent as contemplated by s. 3(3) of the Protection Act he
was not entitled to the protection• of the Act. It was further
contended that the High Court was not justified in interfering
with the exercise of discretion by the Revenue Divisional Officer.
Held: (i) S. 7 can be transgressed in two ways viz., (1)
when the tenant does not bring the crop to the threshing floor
or (2) having brought it to the threshing floor he removes any
portion of it at such time or in such manner as to prevent the
division thereof at the proper time. In the present case it is
admitted that the respondent brought the crop to the threshing
floor. From the proved facts of this case that the respondent
\.
1964
D.8. OMllGmmal
.!Mi
v.
NGaGf&G• Sanaba•
198
SUPREME COURT REPORTS
(1964]
was always prepared for the division of the crops. and that it
was t~e insistence of the appellant for 60 per cent of the crops
and his refusal to accept his due share that prevented division
and that, the crops were actually measured by Revenue Inspector and it was to prevent deterioration of the crops that the
respondent removed it, it is clear that the respondent has not
removed the crops to prevent division. Therefore it cannot
be said that there was a transgressi0n of s. 7 on the part of
the respondent.
'
(ii) Since the respondent did not pay the rent within the
time and in the way contemplated by s. 3(3) of the Protection
Act the case is covered by s. 3(2) of the Act. That gave the
appellant a cause of action to apply for the ejectment of the
respondent under s. 3(4} of the Protection Act. But even though
the ' appellant was entitled to apply, the Revenue Divisional
Officer was not bound to evict the tenant for cl. (b) of s. 3(4)
gives him a discretion to give time to the tenant to Pav the
arrears taking into consideration the various circumstances
of the case. The Revenue Divisional Officer refused to exercise the discretion in favour of the respondent on the ground
that he had not deposited the rent under s. 3(3l. The discretion under cl. (b) of s. 3(4) comes into play only when the
tenant has not deposited the rent under s. 3(3) and therefore
the Revenue Divisional Officer was wrong in refusing to exercise his discretion.
(iii) The Revenue Divisional Officer having been patently
wrong in his view of the law if the High Court interfered in
the wrong exercise of his discretionacy pOWer, this Court in
its jurisdiction under Art. 136 will not interfere with the order
of the High Court which is clearly in the interest of justice.
Secondly the Revenue Divisional Officer had failed to exercise his jurisdiction and the High Court would be justified in
interfering with his order even under s. 115 of the Code of
Civil Proeedure.
OvIL APPELLATE JURISDICTION-Civil Appeal No. 356
of 1963. Appeal by special leave from the judgment and order
dated October 1960 of the Madras High Court in C.R.P. No.
966 of 1960.
·
M. C. Setalvad and R. Ganapathy Iyer, for the appellant.
T. S. Venkataraman, for the r!!spondent.
March 13, 1964. The judgment of the Court was delivered byWANCHOO, J.-This is an appeal by special leave
from the judgment of the Madras High Court. The appellant
is a landlord in village Idaikkal, and the respondent is her
tenant. The land in dispute was let by the appellant to the
respondent and the rent was fixed partly in kind and partly
in cash, the tenancy having been created som~times before
the Madras Cultivating Tenants (Payment of Farr Rent) Act,
No. XXIV of 1956 (hereinafter referred to as the Fair Rent
Act) came into force. The agreement as to the payment of
rent in kind was that the appellant would get 60 per cent
of the gross produce, the remainder going to the respondent.
7 S.C.R
SUPRE.ME COURT REPORTS
199
The dispute out of which this appeal has arisen arose in 1959
when the crop for that year was reaped. The respondent
harvested the crop and brought it to the threshing floor of
the appellant for division and claimed that the appellant
was only entitled to 40 per cent of the crop as provided in
the Fair Rent Act. The appellant's agent however demanded
60 per cent as provided in the agreement of tenancy. The
dispute went on about for ten days while the harvested crop
was lying in the threshing floor. Consequently, the respon-
. dent made an application to the Circle Inspector of Police
complaining that the appellant was delaying the division of
the produce and preventing the removal of the respondent's
share, and that there was likelihood of a breach of the peace.
Thereupon the police made inquiry into the matter and reported to the Tehsildar that the harvested crop was lying in
the threshing floor and the agent of the appellant was not
prepared to divide the produce in accordance with the provisions of law and was insisting on the division being made
according to the agreement. It was also reported that the crop
was deteriorating and the seeds had begun to germinate as
the crop was exposed to rain. Thereupon the Tehsildar
directed the Revenue Inspector to look into the matter° and
measure the quantity of the produce and note the gross yield
and report. The Revenue Inspector thereupon visited the
spot on September 27, 1959 after issuing notice to the appellant's agent to be present at the spot for the purpose of
measuring the quantity and determining the yield.
The
appellant's agent was however absent and the Revenue
Inspector made measurements in the presence of the respondent and some prominent persons of the village in spite of
the absence of the appellant's agent. He then sent a report
to the Tehsildar giving the result of his measurements. As
however, the appellant's agent was not present, the crop
could not be divided and the Revenue Inspector gave instruction to the respondent that the crop should not be removed.
It appears however that the respondent removed the crop
soon after the Revenue Inspector left. Thereafter the respondent sent a money order to the appellant for the amount representing the value of the appellant's share, namely, 40
per cent. It appears that soon after the appellant filed a criminal complaint of theft against the respondent and that was
dismissed. Then followed the present petitiOn under s. 3
(4)(a) of the Madras Cultivating Tenants Protection Act,
No. XXV of 1955, (hereinafter referred to as the Protection
Act) for the ejectment of the respondent before the Revenue
Divisional Officer.
The Revenue Divisional Officer held that though the
respondent was justified in insisting that the appellant should
take only 40 per cent of the produce as provided by law he
1961
D.S. Ohellammal
Annt
v.
Nasanan Sam.ban
Wanehoo, J.
200
SUPREME COURT REPORTS
[1964]
1964
was not justified in removing the crop and that he should
D.S. Olldlammal have proceeded to enforce his rights in the manner provided
.A.,...;
by law. As however the respondent had not chosen to proN
v. Sam/J
ceed in that manner, the Revenue Divisional Officer ordered
-~ an his ejectment refusing to exercise the discretion which lay in
WaodooiJ.
him to give time to the respondent to deposit the arrears of
rent in court. The respondent then went in revision to the
High Court. The High Court held that in the circumstances
of the case, the Revenue Divisional Officer should have exercised his discretion in favour of the respondent. The High
Court therefore set aside the order of ejectment in view of
the fact that the rent had been deposited in the High· Court.
Thereupon the appellant applied for and obtained special
leave to appeal from this Court, and that is how the matter
has come up before us.
In the special leave petition the appellant raised the
contention that the Fair Rent Act and the Protection Act
were unconstitutional as they placed unreasonable restrictions on the appellant's fundamental rights to hold her property. But in the arguments before us, learned counsel for
the appellant has abandoned the attack on the constitutionality of the two Acts and has only. contended that the High
•
Court had no jurisdiction under s. 6-B of the Protection Act
to interfere with the order of the Revenue Divisional Officer.
Before we cmlsider the contention raised on behalf of
the appellant we may briefly refer to the provisions of the
two Acts, which bear on the question raised before us. The
Protection Act was, as its title shows, passed for protection
from eviction of cultivating tenants. It is not in dispute that
the respondent was a cultivating tenant. Section 3(1) of the
Protection Act lays down that "subject to the next succeeding sub-sections, no cultivating tenant shall be evicted from
his holding or any part thereof, during the continuance of
this Act, by or at the instance of his landlord, whether in
execution of a decree or order of a Court or otherwise". The
following sub-sections then lay down the conditions under
which ejectment can be ordered. Sub-section (2) of s. 3 inter
alia lays down that a tenant will not enjoy the protection of
sub-s. (!), if he is in arrears of rent and has not paid the
arrears within the time specified therein. Sub-section (3) of
s. 3 provides that a cultivating tenant may deposit in court
the rent or, if the rent be payable in kind, its market v;tlue
on the date of the deposit, to the account of the landlord. A
notice of deposit is given by the Court (in which is included
the Revenue Divisional Officer), and an enquiry is then made
whether the amount deposited is correct after hearing the
' landlord and the tenant. If there is any deficiency, the tenant
is ordered to make good the deficiency; and if he fails to
pay the sum due, the landlord is entitled to ask the court
7 S.C.R.
SUPREME COURT REPORTS
201
for eviction in the manner as provided by sub-s. (4). Section
3(4)(a) lays down the procedure for evicting a tenant. Under
this clause a landlord has to apply to the Revenue Divisional
Officer and on receipt of such application, the Revenue
Divisional Officer, after giving reasonable opportunity both
to the landlord and the tenant to represent their case, holds
a summary enquiry into the matter and decides whether eviction should be ordered or not. Clause (b) of sub-s. (4) of s. 3
further gives discretion to .the Revenue Divisional Offioer to
allow the cultivating tenant such iime as he considers just
and reasonable having regard to the relative circumstances
of the landlord and the cultivatin~ tenant for depositing the
arrears of rent payable under the Act, including such costs
as he may direct. It is further provided_ that if the cultivating
tenant deposits the sum as directed, he shall be deemed to
have paid the rent. If however the cultivating tenant fails to
deposit the sum as directed, the Revenue Divisional Officer
shall pass an order for eviction.
Then we tum to the provisions of the Fair Rent Act,
which are material for present purposes. We have already
pointed out that the fair rent in the case of wet land with
which we are concerned in the present appeal is 40 per ~nt
of the normal gross produce or its value in money: (see s. 4
(!)). Then comes s. 7, which provides that "where the produce to be shared is grain the sharing shall be done at the
threshing floor on which the threshing took place; and no
portion of the produce shall be removed therefrom at such
time or in such manner as to prevent the due division thereof
at the proper time."
A combined reading of these provisions of the two Acts
shows that in the case of a tenant whose rent is payable in
kind, such tenant has to take the crop to the threshing floor
for division and such division has to be made at the threshing floor and no portion of the produce can be removed
therefrom so as to prevent the due division thereof. But it
is open to a tenant under s. 3(3) of the Protection Act to
deposit in court to the account of the landlord where the rent
is payable in kind, its market value on the date of deposit;
and this obviously postulates that though the tenant has
taken the produce to the threshing floor, the landlord has
not co-operated in its division. Clearly if the landlord does
not co:aperate in. the division of the crop, the tenant cannot
allow 1t to remam on the threshing floor to deteriorate and
t~at seems to. be the reason why under s. 3(3) of the Protection Act he 1s allowed to deposit the market value of the
rent payable in kind in court, and it is then for the court to
see whether the rent deposited is correct or not.
1964
·D.S. Ohd!ammal
A1'ni
v,
N.,.11M1Samka
Wan.c:Mo, J.
1964
I>.S. Chel./4mmal
Anni
v.
NatJanatt. Samban
Wanchoo, J.
202
SUPREME COURT REPORTS
[1964]
The first question that· arises therefore is whether the
respondent has acted in any manner prohibited by law; and
the main contention of the appellant is that the respondent
has transgressed the provisions of s. 7 of the Fair Rent Act
and so cannot take advantage of the Protection Act. It is
further contended that the respondent has also transgressed
s. 3(2) of the Protection Act inasmuch as he did not deposit
the arrears of rent within the time allowed thereunder and
was therefore liable. to eviction under s. 3(4) of the Protection· Act. Section 7 of the Fair Rent Act Jays down that the
sharing of the crop shall be done at the threshing floor on
which the threshing takes place and no portion of the produce
shall be removed therefrom ·at such time or in such manner so
as to prevent due division thereof. It is clear that s. 7 can be
transgressed in bne of two ways; viz., (I) when the tenant does
not bring the crop to the threshing floor at all, or (2) having
brought it to the threshing floor he removes any portion of
it at such time or in such manner as to prevent the due division thereof at the proper time. In the present case it is not
in dispute that the respondent brought the crop to the threshing floor with the intention that it may be divided between
him and the appellant and it is also not in dispute that the
tenant was entitled to have the crop divided according to the
Fair Rent Act and had therefore to give only 40 · per cent
to the appellant as provided thereunder. It was the appellant
who was insisting all along through her agent that she
should get 60 per cent as provided in the agreement of
tenancy. What happened thereafter has been narrated by
us above. The respondent approached the police, and the re"
port of the Police Inspector shows that he went to the spot
twice; on the first day the appellant's agent told the Police
Inspector that he would settle the matter after consulting the
appellant and the agent was asked to come back next day
with the appellant's instructions. When the Police Inspector
came the next day, no settlement could be arrived at. Later
when the Revenue Inspector was sent by the Tehsildar, the
agent of the appellant did not appear in spite of notice, and
the Revenue Inspector took measurements of the crop and
made a report thereof to the Tehsildar. It was after the crop
had been measured by the Revenue Inspector that it was
removed by the respondent. In these circumstances we are
of opinion that it cannot be said that the crop was rei;n?~ed
from the threshing floor in order to prevent due d1v1S1on
thereof at the proper time; the respondent was always prepared for the division of the crop as provided by law'. and
the removal by him cannot in the circumstances be said to
be for the purpose of preventing due division of the crop
particularly when the measurements had ~Is? taken pla.ce.
Removal of crop by the tenant can fall w1thm the meamng
7S.C.R
SUPREME COURT REPORTS
203
of the section only if it is done for the purpose therein
specified; and it is plain that the removal in the present case
was clearly not for that purpose. We are therefore of opbion
that on the facts of this case it cannot be said that there was
·any transgression of s. 7 of the Fair Rent Act.
It is further urged on behalf of the appellant that even
though the respondent might have been justified in removing
60 per cent of the crop which was his share, his removal of
the appellant's share was a transgression of s. 7 of the Act.
We cannot accept this. Section 7 forbids removal of any portion of the crop. There is no question therefore of the share
of the appellant or the respondent, eitlier the removal as a
whole will transgress s. 7 or it will not; and that will depend
upon the fact whether the removal was in order to prevent
due division of the crop at the proper time. In the present
case we have already indicated that the removal was not to
prevent due division. The respondent was always prepared
for due division and it was the appellant's agent who did
not agree to division according to Jaw. In these circumstances, this is not a case of removal of the crop (particularly
after it had been measured by the Revenue Inspector) with
a view to prevent its due division. There was therefore no
transgression of s. 7 of the Fair Rent Act, even if the appellant's share was removed.
Then it is urged that even if there was no transgression
of s. 7 of the Fair Rent Act, the respondent was not entitled
to the protection of s. 3 of the Protection Act, as he did not
pay rent within the time specified therein and had taken no
steps under s. 3(3) of the Act. There is no doubt that strictly
speaking the case is covered by s. 3(2) of the Protection Act
inasmuch as the rent was not paid within the time allowed,
therein and was not even deposited in court under s. 3(3)
of the Protection Act. What !he respondent did in the present case was to send a money order to the appellant instead
of depositing the money in court under s. 3(3) as he should
have done. Even though the appellant was not agreeing to
the division of the crop, the respondent did not act under
s. 3(3) as he should have and instead sent a money order.
Th~t gave the appellant a cause of action to make an application under s. 3(4) o_f the Protection Act. But even though
the appellant was entitled to make apolication under s. 3(4)
of the Protection Act, the Revenue Divisional Officer was
not _boun_d to evi~t the. tenant for cl. (b) of s. 3(4) gives him
a d!scretmn to give tlffie to the tenant to pay the arrears
havmg Tega~d t_o the relative circumstances of the landlord
and th~ ~':1lhvatmg tenant. This clearly means that the Revenue D1v1S1ona! Officer has to take into account the circumstances of e~ch ~ase and then exercise his discretion whether
be should give hme to the tenant or riot. In the present case
1964
D.S. ClieUammal
Anni
T,
l{asanan Samba•
Wanckoo,J.
204
SUPREME COURT REPORTS
[1964]
1964
the Revenue Divisional Officer did not consider that quesD.S. Oliellammal tion as he took the view that he should not exercise the disAn.U
cretion in favour of the respondent because he had not acted
N.....,:;. Sam/Jan as he should have acted and deposited the amount under
s. 3(3) in court. This view of the Revenue Divisional Officer
W anclioo, J.
is in our opinion patently incorrect. Now if the respondent
had acted as he should have acted and made a deposit under
s. 3(3) of the Protection Act, the matter would have been
dealt thereunder. The court (which includes the Revenue
Divisional Officer) would then have to consider whether the
amount deposited was correct and if it was deficient the court
was bound to give time to the tenant to make up the deficiency. It is only when the deficiency is not made good within the time allowed that the landlord would have the right
to make an application under s. 3(4) for eviction. It is clear
therefore that the discretion allowed under cl. (b) of s. 3(4)
only comes into play where the tenant for some reason or
the other has not made a deposit under s. 3(3). To hold
therefore,-as the Revenue Divisional Officer seems to have
held-that the discretion will not be exercised in favour of
the tenant because he had failed to make a deposit under
s. 3(3) of the Act is a patent violation of the provision in
cl. (b) of s. 3(4) as to the exercise of discretion.
It is however urged that even if the Revenue Divisional
Offii;er had misunderstood cl. (b) of s. 3(4), the High Court
could not interfere with the exercise of the discretio,Q by the
Revenue Divisional Officer under s. 6-B of the Protection
Act, inasmuch as this provision gives revisional jurisdiction
to the High Court to the extent to which such jurisdiction
is conferred on it by s. II 5 of the Code of Civil Procedure.
There are two answers to this contention. The first is that
the Revenue Divisional Officer was patently wrong in his
view of the law and therefore if the High Court interfered
with the wrong exercise of discretion, this Court in its
jurisdiction under Art. 136 will not interfere with the order
of the High Court, which is clearly in the interest of justice.
Secondly by taking the view that he cannot and should not
exercise his discretion where a tenant has failed to take
action under s. 3(3) of the Protection Act, the Revenue Divisional Officer has in our opinion failed to exercise jurisdiction vested in him under the law, and the High Court would
be justified in interfering with its order even under s. 115
of the Code of Civil Procedure.
We are therefore of opinion that there is no force in
this appeal and it is hereby dismissed with costs.
Appeal dismiued.