Judgment:
C.V. Ramulu, J.
1. These two civil revision petitions are filed under Article 227 of the Constitution of India being aggrieved by the common judgment dated 8-3-2004 in CMA Nos. 17 and 18 of 1999 on the file of the learned III Additional District Judge, Nellore confirming the common order dated 15-4-1999 made in A.T.C. Nos. 1 of 1993 and 17 of 1996 on the file of the learned Special Officer-cum-Principal Junior Civil Judge, Nellore.
CRP No. 2689 of 2004
2. A.T.C. No. 17 of 1996 out of which this civil revision petition arises, is filed by the respondent herein (landlord) under Section 13 of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (for short 'the Act') seeking eviction of the petitioner-cultivating tenant from the suit schedule property on the ground that he failed to pay agreed maktha by due date. Whereas, A.T.C. No. 1 of 1993 is filed by the respondent herein under Section 6 of the Act for fixation of fair rent for the petition schedule property. Both these petitions were clubbed together and common evidence was recorded. On behalf of the landlord, P.Ws.1 to 3 were examined and Exs.A1 to A6 were marked and for the tenant, R.Ws.1 to 5 were examined and Exs.B1 to B10 were marked. After elaborate consideration of the entire evidence on record, the Special Officer held that it is not the case of the tenant (petitioner herein) that he sent makthas to Krishnamma by Money Order and they were returned; as such, his version that he is unable to pay makthas as he did not know the name of the landlord was not correct. When A.T.C. No. 1 of 1993 was pending, nothing prevented the tenant to deposit the makthas in Court instead of searching for the address of the landlord. In the year 1991, Krishnamma died and subsequently the ATCs were filed. For non-payment of maktha, R.W.1 stated in his cross-examination that thinking that patta may be granted in his favour due to coming into force of the Tenancy Act, he kept quiet without paying makthas. He applied to the Government for grant of patta, but it was not granted to him so far and he was under the hope that patta may be granted in his favour. Thus, it is clear that non-payment of makthas is only for the obvious reason that he may get patta for the land in question. R.W.2 is the son of the tenant and he stated in his evidence that after the death of Krishnamma, he did not pay maktha, as he did not know to whom he has to pay the same. Nothing prevented him to deposit makthas in A.T.C. No. 17 of 1996 or in A.T.C. No. 1 of 1993. The tenant was quite aware of the constitution of Trust Board and the Managing Trustee frequently contacted the tenant for enhancement of maktha and for payment of maktha. Thus, it was held that there was a wilful default on the part of the petitioner-tenant in payment of maktha and as such, he is liable to be evicted and allowed A.T.C. No. 17 of 1996. Consequently, A.T.C. No. 1 of 1993 was also allowed fixing the fair rent for the petition schedule property at Rs. 12,090/- i.e., at the rate of Rs. 3,000/- per acre for Ac.4.03 cts with effect from 16-12-1992 i.e., date of filing of A.T.C. This finding of the Special Officer was confirmed in unequivocal terms by the learned III Additional District Judge, Nellore in C.M.A. No. 18 of 1999. Aggrieved by the same, the present revision is filed.
3. Insofar as the wilful default on the part of the petitioner-tenant in payment of maktha and as to fixing of fair rent, there is a concurrent finding of fact and no illegality has been brought to the notice of this Court to interfere with the said concurrent finding of fact.
4. However, the learned Counsel for the petitioner raised an important question of law for consideration of this Court, which was not raised either before the Special Officer or before the appellate authority. According to the learned Counsel, there is inherent lack of jurisdiction in the Special Officer in entertaining ATCs and even if the parties have not raised any objection earlier and submitted themselves to the jurisdiction of the Tribunal, that itself will not cure the defect. In this case, the respondent-landlord himself stated that though originally the petition schedule land was an agricultural land and was being cultivated with various crops from time to time, 20 years before the year 1993, the petitioner-tenant has converted the same into casurina tope and also has been cultivating crops in the tope. Therefore, as on the date of filing of the petitions under Sections 6 and 13 of the Act, it was only casurina tope, which was being cultivated in the schedule land and as such, the Tribunal below has no jurisdiction to entertain the ATCs filed before it. The learned Counsel drawn attention of the Court to Sections 2(c), (e), (f) (h) of the Act, which reads as under:
'2(c) 'cultivating tenant' means a person who cultivates by his own labour or by that of any other members of his family or by hired labour under his supervision and control, any land belonging to another under a tenancy agreement, express or implied, but does not include a mere intermediary;
(e) 'holding' means a parcel of land held by a cultivating tenant;
(f) 'landlord' means the owner of a holding or part thereof, who is entitled to evict the cultivating tenant from such holding or part, and includes the heirs, assignees, legal representatives of such owner, or person deriving rights through him;
(h) 'plantation crop' means tea, coffee, rubber, casurina and such other crops as may be notified by the Government in the Andhra Pradesh Gazette for the purpose of this Act.'
Learned Counsel for the petitioner further contended that even if it is taken as contended by the landlord that the lease was intended only for raising agricultural crops, the fact remains that when ATCs were filed, there was a standing casurina tope in the petition schedule land and the same is being continued. Therefore, the question is when casurina tope is raised in the land, which was leased out for raising agricultural crops, the Act still applies or not. In other words, by raising casurina tope in the land leased out for raising agricultural crops by the cultivating tenant, do the provisions of the Act still continued to apply. Learned Counsel stated that the preamble portion of the Act reads that it is an Act to provide for payment of fair rent by cultivating tenant and for regulating the relations of landlord and cultivating tenant of agricultural lands and matters connected therewith. In fact, casurina tope is a plantation crop as per Section 18(1)(a) of the Act, which states 'nothing contained in the Act shall apply to lands in which plantation crops are raised'. Thus the Act makes a clear distinction between lands where agricultural crops are raised and lands where plantation crops are raised. The Act applies only when agricultural crops are raised and not when plantation crops are raised. He has also drawn attention of the Court to Sections 3, 4, 5 and 10, which reads as under :
'3. Maximum rent payable by cultivating tenants :-(1) The maximum rates of rent payable by a cultivating tenant to a landlord, expressed in terms of proportion of gross produce, shall be-
(i) in the case of every crop grown on any irrigable land, other than the land irrigated by bailing of water-30 per cent of the gross produce.
(ii) In the case of every crop grown on any other land including unirrigable land-25 per cent of the gross produce.
Explanation:-...
4. Agreement regarding form of tenancy etc:-Every landlord and his cultivating 2005(6) FR-F-13 tenant shall come to an agreement in regard to the form of tenancy, and in particular as to whether the rent shall be paid in the form of a share in the produce or in the form of a fixed rent in kind, or in the form of a fixed rent in cash, such agreement shall not be liable to be altered except by mutual agreement of the parties.
5. Agreement as to rent :-The cultivating tenant and the landlord may agree among themselves in regard to the quantum of rent payable for a holding subject to the maximum rent specified in Section 3. The rent so agreed, whether it is in pursuance of an agreement made between the parties, before or after the commencement of this Act, shall, subject to the provisions of Section 6, by the rent payable for the holding.
10. Rights of cultivating tenants :-(1) Every lease subsisting at the commencement of the Andhra Pradesh (Andhra Area) Tenancy (Amendment) Act, 1974, shall be deemed to be in perpetuity.
(2) Every lease entered into between a landlord and his cultivating tenant on or after the commencement of the Andhra Pradesh (Andhra Area) Tenancy (Amendment) Act, 1974, shall be for a minimum period of six years. Every such lease shall be in writing and shall specify the holding its extent and the rent payable therefor with such other particulars as may be prescribed. The stamp and registration charges for every such lease shall be borne by landlord and the cultivating tenant in equal shares.
(3) On the expiration of the period of lease referred to sub-section (2) every such lease shall be renewable successively for a further minimum period of six years at a time. Every such renewal shall be governed by the same terms and conditions as under the original lease and be subject to the provisions of Sections 3 and 6.
(4)...
(5) All rights of a cultivating tenant under this section shall, subject to the provisions of Sections 12 and 13, be heritable.
Explanation I:-...
Explanation II:-...'
and submitted that on a reading of various provisions of the Act what emerges is that the applicability of the Act shall be determined by the crops raised therein, whether it is agricultural crop or plantation crop and not with reference to what purpose the lands were leased out to the cultivating tenant. If agricultural crops are raised, the Act is applicable and if plantation crops are raised, the Act has no application. This is the underlining scheme of the Act. A cultivating tenant raising plantation crop in the land leased out to him cannot take the aid of the provisions of the Act and equally the landlord cannot call for his aid the provisions of the Act were plantation crops are raised by the cultivating tenant in the lands leased out to him. Therefore, there is inherent lack of jurisdiction in the Tribunal below in entertaining the ATCs. Thus, the ATCs were not maintainable before the Special Officer and as such, the findings recorded by the Special Officer, which were confirmed by the Appellate Authority, are liable to be set aside and the ATCs are liable to be rejected.
5. The learned Counsel for the respondent-landlord submitted that the purpose for which the land was leased out must be taken into consideration and not the crops raised as on the date of filing of the ATCs. Further, such an objection was not taken by the petitioner-tenant either before the Tenancy Tribunal or the Appellate Authority; therefore, it is not permissible for him to raise the said question at this stage.
6. I have given my earnest consideration to the respective submissions made by the learned Counsel on either side and perused the entire evidence on record including the Orders passed by the Tenancy Tribunal and the Appellate Authority.
7. The admitted facts are that the petitioner has not taken any objection as to ousting of jurisdiction of the Special Officer (Tenancy Tribunal) either in the ATCs or in the ATAs. Further, the respondent-landlord stated that originally the land was leased out for agricultural purpose and 30 years thereafter, the tenant has converted it into casurina plantation. R.W.1 (tenant) himself admitted that since 20 years he has been raising casurina crops, as there is no irrigation water facility and that he dug a well to irrigate his land and he was paying maktha at Rs. 250/- per acre. Further he deposed that at present there is no casurina crop and once in five years casurina would come for cutting and for one year vegetable crops will be planted. P.W.1 also asserted in his evidence that the tenant also raised beetle leaves in the petition schedule land and also raising vegetables between the casurina garden. There is no rebuttal to the said evidence of P.W.1. Thus, there was absolutely no evidence to show that for how many years the casurina was planted and whether it is in the nature of casurina plantation only or any other agricultural operations are also going on. In the teeth of the admissions made by the tenant and assertions made by the landlord, it reveals that alternatively casurina plantation will be done and in between the casurina trees, vegetables and other commercial crops are being cultivated. Therefore, it cannot be said that the jurisdiction of the Tribunal is ousted, since the casurina plantation was carried on for some time or for some years.
8. The respondent is a Trust purported to have been founded by none other than the Father of the Nation Mahatma Gandhi in the year 1921 and the lands were leased out to the petitioner herein in the year 1949 only for agricultural purpose. Even according to the tenant, for the last 20 years he has been raising casurina plantation alternatively, apart from the fact that commercial crops like vegetables were being raised in between the casurina trees. Therefore, it cannot be said that the provisions of the Act have no application and the Tribunal inherently lacks jurisdiction to deal with the matter under the Act.
9. Learned Counsel for the petitioner also relied upon the judgment of a Division Bench of this Court in Jandhalaya Krishna Murthy v. Tullimilli Kotaiah, 2005 (1) ALD 205, and submitted that the very object of the Act and the various provisions of the Act (as noted above) would indicate that the provisions of the Act can be invoked only when agricultural crops are raised. There cannot be any dispute as to the aims and objects of the Act, as discussed in the above judgment. The aims and objects are only to protect the interest of the cultivating tenant, fixation of fair rent, in a given case like the instant one to evict the cultivating tenant for committing default in payment of maktha etc. They are more in the nature of protecting the interest of a cultivating tenant. There is no necessity of going into other details in this regard. But, the said decision has no application to the facts of this case.
10. Whereas, learned Counsel for the respondent-landlord relied upon a judgment reported in I.S. Jiew v. Anup Lal, AIR 1975 Cal. 174. In the said case, the suit was filed for ejectment under Section 106 of the Transfer of Property Act. The defendant therein had taken a plea that since there was a change in the use of premises, the civil Court inherently lacked jurisdiction. Under those circumstances, it was held that the nature of the tenancy has to be ascertained from the purpose for which the letting was made and not by alleged subsequent user to which the premises is put in. Learned Counsel for the respondent further relied upon the judgment in Orient Paper Mills v. Sitaram Agarwala, AIR 1987 Ori. 276. While dealing with the question as to the land appurtenant to Holding No. 24 an agricultural land and the lease deed executed in favour of the plaintiff on 10-4-1947 for agriculrural/non-agricultural purpose held :
'But the more important position that remains to be determined is whether the lease, which is the basis of the plaintiff's claim, is for agricultural or non-agricultural purposes. There is no dispute over the proposition of law that if the recitals in the lease itself and the terms thereof make out non-agricultural purposes and are free from all ambiguity, the only guide for determination of the nature of the lease would be the lease deed itself'.
11. In the instant case, there is no dispute as to the purpose of leasing out the land i.e., for agricultural purpose. Thus, there is a decisive purpose for which the lands were leased out and there is no dispute as to this fact and for more than 30 years, only agricultural crops were raised and it is not the case of the petitioner-tenant that he obtained any permission for conversion of land use. Therefore, the purpose for which the lands were leased out as on the date of entering into the lease is important and not as on the date of filing of the petition. Thus, in the peculiar facts and circumstances of the case, it cannot be said that the Special Officer and the Appellate Authority lack inherent jurisdiction to entertain the ATCs and AT As respectively.
12. In view of the aforementioned discussion, I am of the considered opinion that the ATCs filed by the respondent herein are maintainable under the provisions of the Act. The civil revision petition is devoid of merits and liable to be dismissed.
CRP No. 2688 of 2004
13. In view of the findings reached in CRP No. 2689 of 2004, this civil revision petition is also liable to be dismissed.
14. Accordingly, the civil revision petitions are dismissed; but, without any order as to costs.