1. The petitioners are said to be joint landholders of Agaram Zamin Estate in the Salem District, of which Agaram and Kondamanallur are admittedly under tenure estates notified and taken over under the provisions of Madras Act XXVI of 1948. It is common ground that the two villages were subject to a usufructuary mortgage on the foot of which a final decree was passed on 3rd April, 1959. The petitioners applied under Section 42 of the Act only on 15th June, 1959. Their case was that they were under the impression that it was only after obtaining a decree for redemption, they could even apply under Section 42. The deposit as required by Section 41(1) of the Act was made by the Government with the Tribunal on 5th October, 1957. The Tribunal declined to accept the explanation offered by the petitioners as valid and found that their application was out of time even under the First Proviso to Section 42(1). This petition is to quash the order of the Tribunal.
2. In so far as it held that the application was out of time under the First Proviso to Section 42(1) the Tribunal appears to be right. But the contention for the petitioners is that inasmuch as Sub-section (2) of Section 42 is not applicable to a claim by the petitioners who are land-holders, the intention of the First Proviso to Section 42(1) is not to destroy their right to payment of the compensation deposited. If that is the real position, the object of providing a limitation and a further limitation by Section 42(1) is rather obscure. But on that ground the petitioners cannot be refused relief of payment out if their right to receive compensation is not at an end.
3. Section 41(1) directs that the Government should deposit with the Tribunal the compensation in respect of each estate as finally determined under Section 39. Sub-section (2) of the section is to the effect that on making of such deposit, the Government shall be deemed to have been completely discharged in respect of all claims to, or enforceable against, the compensation. What is important to note is that this Sub-section makes a distinction between a claim to and a claim enforceable against the compensation. This distinction is particularly intelligible and significant from the terms of Section 59(1) under which no claim or liability enforceable immediately before the notified date against the principal or any other landholder of an estate, or against any other land-holder of an estate, or against any other person whose rights stand transferred to the Government in pursuance of Section 3, Clause (b), shall, on or after the date, be enforceable, against the interest he had in the estate, and all such claims and liabilities shall after the date on which the deposit in pursuance of Section 54-A is made, be enforceable against the interim payments or the compensation or other sums paid or payable under the Act to the extent indicated and against his other property in the manner and to the extent mentioned. The question, therefore, is whether when Sub-section (2) of Section 42 states that every claim against the compensation which is not made to the Tribunal within the time aforesaid shall cease to be enforceable, it is in terms applicable to a claim by the landholder himself. In my opinion, the word ‘ against’ in the Sub-section has to be understood in the light of the distinction in Sub-section (2) of Section 41 between a claim to and a claim enforceable against the compensation. To my mind, it will be quite inappropriate to say that a petitioner,’ when claiming the compensation payable to him, makes a claim against the compensation. His claim is to the compensation rather than against it. As it seems to me, it will be only when a claim in the nature of maintenance or a debt due to a third party from the landholder is made, it can be described as a claim against the compensation. On this view, it follows that Sub-section (2) of Section 42 does not render the claim of the petitioners who are landholders to compensation unenforceable. There is no provision in the Act to which my attention has been drawn which provides that in cases where an application for payment out of compensation deposited is out of time under Sub-section 42(1) or the Proviso thereto, the deposit should be remitted back to the Government. In fact Sub-section (2) of Section 41 clearly indicates that the liability of the Government to pay compensation is discharged when the same is deposited. It does not seem to me that the intention of Section 42(1) and the Proviso thereto in providing for limitation is to totally deprive erstwhile landholders making belated applications of their rights to the compensation which they are entitled to be paid on deposit of the same. On this view of the provisions of the relevant sections, I consider that although the application of the petitioners was out of time under Section 42(1) and the Proviso thereto, the effect is not that they can be denied payment of compensation, because Sub-section (2) of that section in terns says that it is only a claim against the compensation which is not made to the Tribunal within the time prescribed, shall cease to be unenforceable. This result may appear to be somewhat surprising because while there is a prescription for limitation, its effect is not that a belated applicant who is a landholder will lose his right to enforce his right to the compensation. But this result, in my opinion, flows, though by implication, from the language of Sub-section (2) of Section 42 particularly when it is read in the light of or alongside Sub-section (2) of Section 41 and Section 59(1).
4. It may also be pointed out that the second respondent State of Madras, apparently realising the true position of the law, does not object to payment out of the compensation to the petitioners which has been deposited subject of course to the rights of third parties, if any.
5. This petition is, therefore, allowed and the rule nisi is made absolute, on the view that while the Tribunal was right in holding that the application was out of time, it was not correct in refusing to make payments out as the petitioners’ right to claim compensation has not ceased to be enforceable in terms of Sub-section (2) of Section 42. No costs.