Andhra HC (Pre-Telangana)
P. Suryanarayana Murty vs M. Subbanna And Ors. on 13 March, 1979
Equivalent citations: AIR 1980 ANDHRA PRADESH 38, (1979) 2 APLJ 7 (1979) 2 ANDH LT 1, (1979) 2 ANDH LT 1
JUDGMENT P.A. Choudary, J.
1. The matter arises under the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 hereinafter called the Act. The Writ Petitioners are tenants under the appellant landlord with respect to Ac. 5-25 cents of Kovvur village of West Godavari District. On the ground that the tenants defaulted in paying rents by 14-1-1970, the landlord obtained orders of eviction of the tenants from the Court of the Tahsildar, Kavvur. This order of the Tahsildar was upheld by the appellate authority against which the tenants have filed a write Petition which was allowed by our learned brother Sheth. J. It is this order of Sheth J. which is the subject mater of the present writ appeal.
2. The case of the landlord who seeks to determine the century old tenancy and evict his tenants is that the tenants failed to pay rent for the year 1969-70 by Makara Sankarish (14--1-1970) which is the date orally agreed to between the parties. The tenants admit that they paid part of the rent in April, 1970 and that the balance they deposited into count but they pleaded that the end of the agricultural year is the date by which the rent falls due and not the Makara Sankranthi.
3. The land in question has been under the occupation of the present tenants or their predecessors in title for well over a hundred years. There is no written lease. After the commencement of the Act, the tenants are continuing to be governed by the terms of the Act.
4. The question is when there is no written stipulation as to the day of payment of rent can a tenant be evicted on the basis of his oral agreement.
5. Under Section 10 (1) of the Act, the minimum period of a fresh lease entered into after the commencement of the Act shall be for six years. The Act says that such a lease shall not only be in writing but also be registered. Section 10 (2) of the Act directs that all pre-existing leases shall continue to be in force.
6. It is necessary to note that a "cultivating tenant" was defined to mean a person who cultivates by his own labour or by that of any other member 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.
7. Now our courts have held that notwithstanding the mandatory form of the language used by Section 10 (1) of the Act fresh oral leases are valid; they are valid although for a period of less than six years. It is on that basis they upheld the benefits that this socially ameliorative measure confers on the tenants under leases either written or unwritten, either registered or unregistered, either for a period of six years or less. All this is now well-settled and the decisions firmly determine the scope and meaning of several Sections of the Act. (See Subbaraju v. Dandiganapudy Dharma Cheruvu, (1965) 2 Andh WR 144); Srinivasa Sastry v. Appayya, (1964) 1 Andh Wr 37; Venkata Narasimharaju v. Venkataramayya, (1965) 1 Andh Wr 481) and Sri Venugopalawamy Varu V.K. Chittayya, (1974) 1 Andh WR 388)).
8. Now the question we are concerned with in this Writ Appeal is about the meaning of Section 13 of the Act which provides for termination of the tenancies, Section 13 reads as follows:-
"Termination of Tenancy: Notwithstanding anything contained in "Termination of Tenancy: Notwithstanding anything contained in Sections 10, 11 and 12, no landlord shall be entitled to terminate the tenancy and evict his cultivating tenant during the currency of a lease except by an application made in that behalf to the Tahsildar, and unless such cultivating tenant: (a) has failed to pay the rent due by him within a period of one month from the date stipulated in the lease deed or in the absence of such stipulation, within a period of one month from the date on which the rent is due according to the usage of the locality, and in case the rent is payable in the form of a share in the produce, has failed to deliver the produce at the time of harvest; or The Section begins with a non obstante clause and therefore we must take it that the legislature does not authorise the eviction of a tenant except when one or the other of the events mentioned in section 13 of the Act occurs. Under Sec. 13 the occasions which bring about a situation justifying the eviction of the cultivating tenant are: (a) the failure of the tenant to pay the rent due by him within a period of one month from the date stipulated in the lease deed; (b) in the absence of such a stipulation, the failure of the tenant to pay the rent due by him within a period of one month from the dated on which the rent is due according to the usage of the locality; (c) the failure of the tenant to deliver the produce at the time of harvest where the rent is payable in the form of a share in the produce. As it is nobody's case that the rent is payable in the form of a share in the produce. we omit from our further consideration the circumstances pertaining to clause (c). Under clause (a), lease deed stipulating a date for the payment of rent must be in existence. Again as it is nobody's case that there is any written lease deed, no further discussion of cl. (a) in this case is called for. What we are really concerned (with) in this case is the situation under clause (b). Under cl. (b) the crucial words used are "in the absence of such stipulation". Now merely from the point of view of language the words 'such stipulation' must mean a stipulation of the same kind or character already referred to. What is already referred to is a stipulation in a written lease deed. The words 'such a stipulation' must therefore be understood as referring to the preceding stipulation which is to be found in a lease deed only. It follows that "such a stipulation" in the context of the section cannot mean stipulation in an oral lease. That means the word 'deed' must be omitted from 'lease deed' in the proceeding line. Plainly that cannot be done. As in this case there is no lease deed and a fortiori no stipulation in a lease deed; the tenant therefore can be evicted only if he fails to pay the rent due by him within a period of one month from the date on which the rent is due according to the usage of the usage of the locality. In view of the non obstante clause, the tenant, therefore, cannot be permitted to be evicted on the basis of an alleged oral agreement between the landlord and the tenant to pay the rent by Sankaranti. As in this case there is finding by the lower tribunal as to the date by which the rent is due according to the usage of the locality which is the only circumstance relevant for ordering the eviction of the tenant under an oral lease, we cannot but uphold the judgment of our learned brother Sheth J.
9. The learned Advocate General had fairly admitted that his submission that Section 13 of the Act should be so read as to involve the eviction of the tenant on his failure to pay the rent on the date mutually agree to, runs contrary to the language of Section 13 of the Act. The learned Advocate-General, however, said that this is the interpretation which would carry out the full meaning and intention of the Legislature. He contended that the alternative condition providing for eviction in the Act must be read by omitting the word 'deed'. In that case, the clause would read "in the absence of such stipulation in a lease" covering oral lease also. He drew justification for his interpretation involving rewriting Section 13 from an analogous reasoning adopted by this Court in interpreting Section 10 of the Act. We are wholly unable to agree with the submissions of the learned Advocate-General. It is not our province, as we conceive it, to re-write and thereby upset the delicate balance of conflicting interests is so clear and plain as in Section 13 of the Act, we can only ask in the words of Justice Holmes, what the statute means and not what the Legislature intended.
This is particularly so in a case of statutory forfeiture of tenancy. What the Legislature gave to the tenant by means of express words, the Courts cannot take away by mere interpretation. Any other interpretation of Section 13 involves us in a "naked usurpation of the legislative function under the thin disguise of interpretation."
(See: Magor & St. Mellons R. D. C. v. Newport Borough Council (1951) 2 All ER 839 (HL).)
10. The writing of laws is for the democratically elected legislature and not for the oligarchically constituted courts. We can only declare what the law is no doubt recognising our reserve power to full the gaps interstitially. In this, there are difficulties. Economic questions are far too complicated to be manageable by the adversary hearing of judicial process. While in general, Courts deal with individuals, post Keynesian economic s deal with aggregated. That is why Ungeed Thomas J. said in Charles Roberts & Co. Ltd. v. British Railway s Board (1965) 1 WL R 396) that "Judges are not Qualified to decide Questions of economic policy". Even in America, courts in recent years have resolutely turned their faces away from the task of applying economic due process. (See Robert G. Mc Gloskey- Economic Due process and the supreme Court: An Exhumation and Reburial). Security for tenants and some degree of certainty in agrarian economic relations cannot be opened up for interpretative assaults.
11. Nor can we agree with the learned Advocate General that section 10 was interpreted by our court in disregard of the plain language of the statute. We may mention that in upholding oral leases the decisions are based upon a plain interpretation of the word "cultivating tenant" in section 3 which takes in implied leases also. Therefore, there is no basis for the suggestion that courts rewrote section 10 of the Act. Further, Section 13 of the Act which not only begins with the subject of forfeiture of tenancies is a complete code on forfeiture of tenancies. Where the statute provides for forfeiture of a tenancy under certain express conditions, those conditions can neither be added to nor subtracted from. When the legislature has spoken, the Judges cannot afford to be wiser (see Justice Mathew in Shri Mandir Sita Ramie v. Governor of Delhi, ). we, therefore, affirm the judgment of our learned brother Sheth J.
12. The lower tribunals did not decide when the rent is due and payable according to the usage of the locality, as such a finding was not called for in view of their holding that rent can also become due and payable by reason of an oral agreement. As we could not agree with that reasoning we now direct the lower Tribunals to give opportunity to the parties and decide the due date of payment of rent according to the usage of locality and also whether the tenants had committed defaults in payment of rent for the year in question.
13. The writ Appeal is dismissed. but without costs.
14. Mr. Sarma asked for a certificate to enable his client to appeal to the Supreme court. we cannot certify. The oral request is rejected
15. Appeal dismissed.