Andhra HC (Pre-Telangana)
Big Mosque, Rep. By Its Muthavalli, M.A. ... vs Jetti Yellamanda And Ors. on 10 June, 1997
Equivalent citations: 1997(4)ALT557, 1997 A I H C 4056, (1998) 1 LANDLR 206, (1997) 2 LACC 392, (1997) 4 ANDHLD 685, (1997) 4 ICC 818, (1997) 4 ANDH LT 557, (1997) 2 APLJ 466
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
JUDGMENT D. Redeppa Reddi, J.
1. These two appeals arising out of references Under Section 31(1) of the L.A. Act, 1894 (for short 'the Act') relate to determination of rival claims between the landlord and the tenants. The Big Mosque, Guntur, represented by its Muthavalli M.A. Azeem Baig, the landlord, has preferred the appeals against the judgments and decrees dt. 27-6-1990 in LAOP Nos. 274 and 275 of 1982 on the file of the Principal Subordinate Judge, Guntur, directing apportionment of compensation between the landlord and the tenants in the ratio of 40:60. Since common questions of facts and law are involved in both the appeals, they are being disposed of by this common judgment.
2. For the sake of convenience, the landlord will be referred to hereinafter as the appellant and the tenants as the respondents.
3. The appellant claimed to be the owner of the land measuring Ac.46-86 cents and Ac. 10-91 cents situated in Reddipalem, Guntur Town. The said land was acquired under the provisions of the Act for the purpose of providing house sites to the encroachers residing on the road margins. The Land Acquisition Officer passed award No. 5/81 dt. 24-2-1981 in respect of the land measuring Ac. 46-86 cents and award No. 6/81 dt. 24-2-81 in respect of the land measuring Ac. 10-91 cents, determining the market value of the land at Rs. 15,000/- per acre. As there was dispute between the appellant and the respondents over the apportionment of the compensation awarded, the matters were referred to the Court of the Principal Subordinate Judge, Guntur, on whose file, they were registered as LAOP. Nos. 274 and 275 of 1982. Later the appellant and the respondents set up claims for enhancement of compensation at the rate of Rs. 50,000/- per acre. Thereupon, the matters were treated as references under Secs. 18 as well as 31 of the Act.
4. Before the reference Court, the appellant laid claim for the entire amount of compensation though it admitted that the respondents were the cultivating tenants of the acquired land. The A.P. Wakf Board, who is one of the claimants in both petitions also put forth its claim for the entire amount of compensation. Their claim was seriously resisted by the respondents. However, we consider it unnecessary to refer their individual claims in detail, Enough to state that few of them in LAOP No. 274/82 claimed absolute ownership over the land under their possession and enjoyment on the ground that they or their predecessors-in-title purchased the same from the Mutavalli of the appellant in the year 1965 under registered sale deeds. Some of them claimed 40% share. It is necessary to mention here that in the claim statements filed on behalf of claimants 2,3,4 and 7 (respondents 1 to 4 in A.S. No. 3231/90) it is found that 40% is altered as 60%. Claimants 2 to 5 in LAOP No. 275/82 (respondents 1 to 4 in A.S. No. 148/91) laid claim for 50% share.
5. Voluminous evidence, both oral and documentary was adduced on behalf of all parties to the petitions. On consideration of the same, the trial Court enhanced the market value of the land from Rs. 15,000/- to Rs. 50,000/- per acre. With regard to the ownership of the acquired land, it rejected the plea of some of the respondents that they are the absolute owners. Finally, it held that the appellant is the absolute owner of the acquired land and the respondents are its tenants. However, treating the respondents as protected tenants as defined under A.P. (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (for short 'the Telangana Tenancy Act') and placing reliance on the decision of the Supreme Court in Galib Bin Awaz v. Mohd. Abdul Khader and Ors, 1987 (2) APLJ (SC Reports) 6. held that the appellant and the Wakf Board would be entitle to 40% share payable towards compensation for the acquired land and the respondents the remaining 60%. It further directed that the compensation payable to the appellant and the Wakf Board shall be kept in a fixed deposit in a nationalised bank and the appellant would be entitled to withdraw the interest accrued thereon once in six months for the maintenance and upkeep of the Big Mosque. Accordingly, it passed the impugned judgments and decrees. Hence, these appeals by the respondents.
6. On verification, it is found that the respondents who put forth the claim for the entire amount of compensation and for larger extents of land filed A.S. No. 3043/90 against the judgment and decree in OP.No. 274/82; but the same was dismissed for default by judgment dt. 1-3-1996. It is stated across the bar that the State did not prefer any appeal questioning the enhancement of compensation. Thus, in these appeals, we are concerned only with the question of apportionment of compensation between the appellant and the respondents.
7. The principal contention of Smt. A. Vyjayanthi, learned Counsel for the appellant is that there were no valid leases in writing in favour of the respondents at the time of acquisition and as such they are not entitled to claim any share payable towards compensation for the acquired land. Her alternative submission is that even if the respondents are held to be tenants, they would be entitled to a maximum of 40% share in the compensation. In opposition, it is submitted by the learned Counsel for the respondents that though there were no leases in writing, it is admitted by the appellant that the respondents were cultivating the subject land as tenants at the time of acquisition. Therefore, they maintain that the apportionment of compensation made by the trial court between the appellant and the respondents in the ratio of 40:60 is just and reasonable and there is no case for interference. In view of these rival contentions, the points that emerge for our consideration are:
(1) Whether the absence of leases in writing between the appellant and the respondents at the time of acquisition would debar the respondents from claiming share in the compensation awarded for the acquired land ?
(2) Whether the apportionment of compensation between the appellant and the respondents in the ratio of 40:60 is justifiable and if not, what would be the proper ratio of apportionment ?
8. Point No. 1: It is true, as contended by the learned Counsel for the appellant, that there were no written lease deeds entered into between the appellant and the respondents at the time of acquisition. But it is admitted by the appellant both before the Land Acquisition Officer and trial Court that the respondents were cultivating the subject land as tenants at the time of acquisition. Ex. A-10 is the statement made by M.A. Azeem Baig, Mutavalli of the appellant before the Land Acquisition Officer, wherein he clearly admitted that the subject lands were cultivated by the respondents as tenants. In the claim statement filed on behalf of the appellant, it is clearly stated that the respondents were cultivating the acquired land as tenants at the time of acquisition.
9. Section 36-A of the Wakf Act, 1954 and A.P. Wakf Rules, 1974 do not lay down that the leases in respect of Wakf property shall be in writing. Even Under Section 107 of the Transfer of Property Act, 1882, that all leases of immovable property excepting those for a minimum period of one year may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. It is specifically urged before us by the learned Counsel for the appellant that the provisions of Section 10 of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (for short 'the Andhra Tenancy Act') have no application to the leases in the present cases. Therefore, we are unable to countenance her submission that unless the leases are in writing the respondents are not entitled to claim a share in the compensation. Even otherwise, it has been held in A. Venkata Narasimha Raju v. P. Venkataramayya, 1965 (1) An.W.R. 481 that an oral lease for a period of two years is valid and enforceable. In M. Chinna Kesanna v. E. Subramanyam, 1976 (2) APLJ 72 (S.N.) it has been held that the lessee under an oral lease is entitled to six years lease period. In the light of the above factual and legal position, we are of the considered view that the absence of leases in writing do not debar the respondents from claiming share in the compensation awarded for the land of which they were the tenants at the time of acquisition. We answer this point accordingly.
10. Point No. 2: The reference Court, as already stated, apportioned the compensation between the appellant and the respondents in the ratio of 40:60, treating the respondents as protected tenants as defined under the Telangana Tenancy Act and placing reliance on the Galib Bin Awaz's (1 supra). There can be little doubt that its approach is manifestly erroneous. The reasons are more than one. Firstly, it is not disputed before us by the learned Counsel for the respondents that the provisions relating to protected tenants embodied in Chapter IV of the Telangana Tenancy Act have no application to the subject land. Section 34 of the said Act defines 'protected tenants'. Section 38 (1) confers a right on the protected tenant to purchase the land under his occupation by offering the price as contemplated under Sub-section2 of Section 38 and subject to fulfillment of the conditions prescribed under Sub-section 7. The price prescribed under sub-section 2 is 15 times the rent in respect of dry land, 8 times for wet land irrigated by wells and 6 times for wet land irrigated by other sources. Section 38-E empowers the Government by causing a notification published in the A.P. Gazette to transfer the ownership of the land held by the protected tenants in their favour subject to fulfilment of the conditions laid down in Sub-section 7 of Section 38. It is not the case of the respondents that any law confers similar rights on them.
11. Secondly, it failed to refer to the relevant provisions of the Wakf Act, 1954 though the acquired land was held by a religious institution, namely, Big Mosque, Guntur governed by the provisions of the said Act. Clause (ii) of Section 36-A of the said Act provides that the lease for a period exceeding 3 years in case of agricultural land or for a period exceeding 1 year in the case of non-agricultural land or building shall be valid without the previous sanction of the Board. It is not the case of the respondents that the leases in their favour had the previous sanction of the A.P. Wakf Board. Thus, they could claim to have leases only for a maximum period of three years. Obviously this factor was not taken into consideration by the reference Court.
12. Thirdly, it failed to refer to the pleadings. As already noted some of the claimants in LAOP No. 274/82 laid claim only for 40% share. Therein, claimants 2,3,4 and 7 also filed claim statements asking for only 40% share, which was later altered as 60%. It is necessary to mention here that the Counsel who represented these claimants before the lower Court continues to be their Counsel before this Court also. In fact he signed every claim statement filed by these claimants. Yet, he is unable to say as to when and how the said alteration was made. Claimants 2 to 5 in LAOP No. 275/82 put forth their claim only for 50% share. It is, thus, apparent that the reference Court was very generous in awarding compensation to the respondents more than what was claimed by them, ignoring the well settled principle that it has no power to do so. It follows, that the apportionment made by it between the appellant and the respondents in the ratio of 40:60 is totally unjustifiable.
13. Then remains the next question, viz., what would be the just and proper ratio of apportionment? The question of determination of the proportion in which the compensation has to be divided between the landlord and the tenant was the subject matter for consideration in Gunnam Subbaraju v. Kancherla Sarvesioara Rao, 1988 LACC 344. That case was governed by the provisions of Andhra Tenancy Act and the tenant continued to be in possession of the land after the expiry of the lease period. Justice Kodandaramayya having held that:
"the mere fact that eviction proceedings are pending, is not relevant so long the tenant continues to be in possession and he was not dispossessed by order of Court."
analysed the question of apportionment in the following manner:
"5. In determining this question we must look to two things (1) the nature of tenancy and (2) the principle applicable for assessing the respective interests of landlord and tenant. Broadly stated the tenancy may be (1) governed by contract which is terminable by efflux of time or by notice, (2) permanent tenancy, (3) tenancy with occupancy rights and (4) statutory tenancy.
6. A lessee whose term has not expired should receive compensation when the tenancy is terminated by efflux of time or notice, or amount can be paid towards his share. This is with reference to ordinary tenancy governed by Transfer of Property Act.
7. In the case of permanent tenancy the rule generally adopted is to give the landlord the capitalised value of the rent and something on account of the right of revision vested in him and the balance shall be paid to be permanent tenant. (Vide: Govind Deo Ji Maltaraj v. Rang Ji Maharaj-1963 All. Law Journal 587)
8. In the case of occupancy ryots or tenants such as Andhra Pradesh (Andhra Area) Estates Land Act, the compensation is apportioned @ 2:3 between the landlord and the tenant. (Vide: Bommadevara Venkata Narasimha Naidu v. Subbarayudu (1913) ILR 36 Madras 395).
9. Similarly in the case of Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, as per Section 49 (4) the protected tenant's interest is declared to be 60% of the market value and that of the landholder and of persons claiming under him shall be limited to 40%. It is seen that these occupancy tenants are considered to be owners of the property along with the landlord and their interest is described as 'melvaram' interest and their rights are heritable and transferable. In the case of statutory tenancy with lesser rights than those of occupancy tenants, but whose tenancy is secure and outside the purview of Transfer of Property Act must be treated as possessing higher rights than that of ordinary and contractual tenants and their rights have to be ascertained taking into account the provisions of the Act and the fixity of tenure.
10. In determining the respective interests of the landlord and tenant in apportioning the compensation, Justice Shah in Dossibai N. Jeejeebhoy v. Pestonji M. Bharucha (ILR (1959) Bombay 370) very rightly indicated three methods of arriving at the respective shares of the landlord and tenant. It was held:
"Under the first method the value of the lessor's and the lessee's interest may be separately ascertained in terms of money and then out of the total amount awarded the value of the interest of one may be taken out and the remainder awarded to the other. The second method is to value the interest of the lessor and the lessee separately and if the aggregate of these two values does not reasonably correspond to the amount of compensation available for distribution, the amount may be distributed in the proportion of two amounts."
11. It is true that evaluation of the two rival interests would be the best method for determining the apportionment, if the total of the two interests coincide with the total amount of compensation determined by the Land Acquisition Officer. But in most of the cases, it will not coincide. However, if in a given case, the totality of the amount of compensation does not coincide with the totality of the two interests separately valued, the Courts have resolved the problem by dividing the excess or the shortfall in proportion of the value separately determined in respect of each interest. However, the initial data required to evaluate the interests of the landlord and tenant with reasonable precision in terms of money will not be available. The mere capitalisation of rent for a fixed years 20 or 25 years, may not yield correct results as that it may take away the entire compensation payable to the landlord and the residue remained will be negligible and hence in most of the cases the court may proceed to evaluate the interests in terms of fractions. No doubt if there is a statutory indication of the landlord's interest when compulsory purchase by tenant is provided under the Act that will furnish a good guide."
We are in entire agreement with the above analysis.
14. Learned Counsel for the respondents submit that the land under acquisition is governed by the provisions of the Andhra Tenancy Act. Thus, they maintain that as per Section 10 the leases held by the respondents shall be deemed to be in perpetuity. We are unable to countenance this submission, for the subject land being wakf property, is governed by the provisions of the Wakf Act, 1954. That apart, there is no acceptable evidence to show that there were subsisting leases at the commencement of Andhra Pradesh (Andhra Area) Tenancy (Amendment) Act, 1974, which came into force with effect from 1-7-80. There is also no evidence to establish that they entered into leases as provided under Sub-section 2 of Section 10, which reads as follows:
"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."
15. Learned Counsel for the respondents tried to justify the apportionment made by the reference Court placing reliance on the decisions in Harbanslal and Ors. v. Belu Jena and Anr., 1990 LAcc 316 and Inder Parshad v. Union of India", . However, on careful perusal, we find that these decisions have no application to the case on hand.
16. Yet another decision relied upon by the learned Counsel for the respondents to justify the apportionment is that of Mangat Ram, etc. v. State of Haryana and Ors., 1996 LACC 377, 1996 (5) Supreme 156. True, this case relates to apportionment of compensation in respect of wakf property between the Punjab Wakf Board and its tenants and the Supreme Court apportioned the compensation between the Wakf Board and its tenants in the ratio of 40:60. It is apparent that this decision proceeded as if it was held by the Supreme Court in Col. Sir Harinder Singh Brah B. Bahadur v. V. Bhiharilal and Inder Parshad v. Union of India that the tenants are entitled to 75% share in the compensation irrespective of the nature of tenancy. But, on careful perusal, we find that in Harinder's case it was held on facts that the tenant, viz., Biharilal became a deemed owner by virtue of the provisions of the Punjab Security of Land Tenures Act, 1953 and therefore he was entitled to the entire amount of compensation. The issue before the Supreme Court in Inder Parshad's case was whether the lessee, who had obtained a perpetual lease of nazul land from the Union of India, which had retained its right to re-entry on breach of covenants, was entitled to the entire amount of compensation and it was answered that the lessee would be entitled to only 75% share in the compensation. In the present case, we have already held that the respondents failed to establish that the leases in their favour were perpetual in nature. We are, therefore, of the considered view that the observation of the Supreme Court made in Mangat Ram's case7 is of no help to the respondents.
17. Dealing with the leases of immovable property of wakfs with reference to Section 36-A of the Wakf Act, 1954, it has been held by this Court in A.P. Wakf Board v. G. Nagireddy, 1982 (1) An.W.R. 414, 1982 (1) APLJ 79, 1982 (1) ALT 17 (NRC) that a Mutavalli or a person in the management of wakf property is competent to enter into a lease for a period of three years only and the lease contemplated for a period exceeding that period without the sanction of the Board is null and void. It is, thus, obvious that a Mutavalli will be competent to grant leases of wakf properties for a period not exceeding 3 years. As already noted the appellant has admitted to have leased out the subject land to the respondents, though the period of lease is not specifically mentioned. It is also admitted that the respondents were in possession of the acquired land as tenants at the time of acquisition. Undeniably they could not have been evicted except in accordance with law. Having regard to these facts, we consider it just and proper that the compensation awarded should be apportioned between the appellant and the respondents in the ratio of 60 : 40. We answer the point accordingly.
18. For the aforesaid reasons, we hold that the appellant and the respondents would be entitled to share the compensation awarded for the acquired land in the ratio of 60:40. We direct that the judgments and decrees under appeal shall stand accordingly modified. The appeals are allowed to the extent mentioned above. However, we make no order as to costs.