Appeal No 537 of 1960
Appeal from the judgment and order dated December 23 1959 of the Mysore High Court in Writ Petition No 229 of 1955
section section Shukla and E Udayarathnam for the appellant
H N Sanyal Additional Solicitor General of India R Gopalakrishnan and P D Menon for the respondents Nos 1 and 2
R Gopalakrishnan for respondent No 3 1962
April 18
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This appeal arises from a writ petition filed by the appellant Raghutilaka Tirtha Sripadangalavaru Swamiji in the Mysore High Court challenging the validity of section 6 2 of the Mysore Tenancy Act 1952 XIII of 1952 hereafter called the Act and the notification issued under the said section on March 31 1952
The appellant s case as set out in his writ petition before the High Court was that the impugned section as well as the notification issued under it infringed his fundamental rights guaranteed under articles 14 19 1 f 26 31 and 31A of the Constitution
This contention has been rejected by the High Court and it has been hold that the section and the notification under challenge are valid and constitutional
The appellant then applied for a certificate from the High Court both under article 132 and article 133 of the Constitution
The High Court granted him a certificate under article 133 but refused to certify the case under article 132
There 229 after the appellant applied to this Court for liberty to raise a question about the interpretation of the Constitution and permission has been accorded to the appellant accordingly
That is how the present appeal has come to this Court
The appellant owns 6 acres and 30 ghuntas of garden land in village Mulbagilu in Taluka Thirthahalli in the district of Shimoga
Respondent No 3 Ramappa Gowda is his tenant in respect of this land
A registered lease deed was executed in favour of respondent No 3 by the appellant on March 11 1943 under this document respondent No 3 undertook to pay 82 12 maunds of areca in addition to Rs 1712 in cash as rent per year
In 1955 respondent No 3 filed an application before respondent No 2 the Tehsildar of Thirthahalli under section 12 of the Act and claimed that the standard rent payable by him to the appellant should be fixed Tenancy case 85 of 1955 56
Meanwhile respondent No 1 the Government of Mysore had in exercise of the powers conferred on it by section 6 of the Act issued a notification No R9
10720 L section 73 542 on March 2829 1955
This notification purported to fix the standard rent for lands of the category to which the appellants land belongs at one third of the produce
Feeling aggrieved by this notification the appellant filed the present writ petition in the High Court on December 16 1955 His case was that section 6 2 as well as the notification issued under it were ultra vires invalid and inoperative
Before dealing with the contentions raised before us by Mr Shukla on behalf of the appellant it would be necessary to consider very briefly the scheme of the Act
The Act has been passed by the Mysore Legislature because it was thought necessary to regulate the law which governs the relations of landlords and tenants of agricultural lands and to regulate and impose restrictions on the 230 transfer of agricultural lands dwelling houses sites and lands appurtenant thereto belonging to or occupied by agriculturists in the State of Mysore except Bellary District and to make provisions for certain other purposes appearing in the Act
That is the recital contained in the preamble to the Act
It would thus be seen that the primary object of the Act is to afford much needed relief to the agricultural tenants by regulating their relations with their landlords and in that respect the Act bears a very close resemblance to the provisions of the Bombay Tenancy and Agricultural Lands Act LXVII of 1948
Indeed the material provisions of the Act with which we are concerned are substantially similar
Chapter I of the Act deals with the preliminary topic of defining the relevant terms used in the Act
Chapter II contains general provisions regarding tenancies
Section 4 defines persons who are deemed to be tenants
Section 5 provides that no tenancy would be for less than five years
Section 6 deals with the maximum rent payable by the tenants
Section 8 provides for the calculation of rent payable in kind in the manner indicated by cls
i and ii and prohibits the landlord from recovering or receiving rent calculated in any other manner
Under a 9 receipt of rent in terms of service or labour is prohibited
Section 11 abolishes all cases and section 10 enables the tenants to claim a refund of rent which has been recovered in contravention of the provisions of the Act
Section 12 then deals with enquiries with regard to reasonable rent
Sub section 3 of section 12 lays down five factors which have to be borne in mind by the authority dealing with an application for the fixation of reasonable rent
Section 13 is a corollary of section 12 and authorises the reduction of rent after reasonable rent has been determined under section 12
Section 14 deals with suspensions or remission of rent
Section 15 231 provides for termination of tenancy
Under section 18 a statutory bar is created against the eviction of a tenant from a dwelling house and under section 19 the tenant has the first option of purchasing the site on which he has built a dwelling house
Similarly under section 22 the tenant is given an option of purchasing the land leased out to him
section 24 deals with some cases where relief can be granted against termination of tenancy and section 25 with relief against termination of tenancy for non payment of rent
Section 30 provides for the procedure to recover rent and section 31 protects the tenants  rights under any other law
Chapter III deals with the procedure and jurisdiction of Amildar and provides for appeals against the decisions of the Amildar
Chapter IV deals with offences and prescribes penalties for them and Chapter V contains miscelaneous provisions
That in its broad outlines is the nature of the provisions made by the Act in order to give relief to the agricultural tenants
Section 6 with which we are directly concerned in the present appeal reads thus 6
1 Notwithstanding any agreement usage decree or order of a court or any law the maximum rent payable in respect of any period after the date of coming into force of this Act by a tenant for the lease of any land shall not exceed one half of the crop or crops raised on such land or its value as determined in the prescribed manner  Provided that where the tenant does not cultivate the land the rent payable shall be the reasonable rent to be fixed by the Amildar
2 The Government may by notification in the Mysore Gazette fix a lower rate of the maximum rent payable by the tenants of lands 232 situate in any particular area or may fix such rate on any other suitable basis as they think fit
 As we have already indicated the provisions of the two sub clauses of a 6 are substantially similar to the provisions of section 6  1 and 2 of the corresponding Bombay Act
Indeed it would be correct to say that Act with which we are concerned has been modelled on the pattern of the Bombay Act and has adopted most of its important provisions
The validity of section 6 of the Bombay Act was challenged before this Court in VasantalMaganbhai Sanjanwala vs The State of Bombay 1 and it has been held that the said section is valid
The reasons given by this Court in upholding the validity of is
6 of the Bombay Act apply with equal force in support of the validity of section 6 of the Mysore Act and so the point raised by the appellant in challenging the validity of the impugned section is really covered by the earlier decision of this Court
Mr Shukla however contends that the preamble to the Act differs from the preamble of the Bombay Act inasmuch as the latter preamble refers to the fact that that Act was passed inter alia for the purpose of improving the economic and social conditions of peasants and ensuring the full and efficient use of land for agriculture and so considerations of social justice on which the validity of the corresponding provision of the Bombay Act was sought to be sustained cannot be invoked in dealing with the present appeal
 We are not impressed by this argument
It is true that the preamble to the Act merely says that the Act was passed because it was though necessary to regulate the law which governs the relations of landlords and tenants of agricultural lands and it does not refer to the requirement of social justice or does not specifically mention the object of ensuring the full and efficient 1  233 use of land for agriculture
But in dealing with a law which has been passed for the purpose of effecting an agrarian reform it would be pedantic to ignore the essential basis of its material provisions merely on the ground that the concept of social justice on which the said provisions are based has not been expressly stated to be one of the objects of the Act in the preamble
We have already examined briefly the broad scheme of the Act and it is obvious that the important provisions of the Act are intended to improve the economic and social conditions of the agricultural tenants and so the policy of social justice can be safely said to be writ large on the face of the Act
Therefore we do not think that the argument based upon the fact that the preamble does not refer to social justice distinguishes section 6 of the Act from the corresponding section of the Bombay Act
Then it is urged that unlike the Mysore Act the Bombay Act has distinguished between irrigated land and non irrigated land and has provided by section 61 that the maximum rent payable in the case of irrigated land shall not exceed one forth and in the case of other lands shall not exceed one third of the crop of such land or its value as determined in the prescribed manner
It is true that section 61 of the Act makes no such distinction between irrigated and non irrigated lands
But that in our opinion is not a matter of essential importance
Like section 61 of the Bombay Act section 61 of the Act also intends to provide for a maximum ceiling beyond which agricultural rent will not be allowed to soar and so far as the fixation of a maximum ceiling of rent is concerned it is not essential that a distinction must necessarily be made between
irrigated lands and non irrigated lands
It must be borne in mind that what the section does is to prescribe the maximum and not to provide for a minimum In prescribing a maximum it may be open to the Legislature to provide for a maximum which would be 234 common to all lands whether irrigated or not That is why we are not inclined to attach any importance to the point that in the absence of classification of land while prescribing a maximum section 61 suffers from any infirmity
Then it is argued that the Bombay Act while prescribing a maximum has taken the precaution of also prescribing a minimum and the absence of the latter provision makes a material difference
This argument is clearly misconceived
It is true that section 8 of the Bombay Act which had been inserted by the Bombay Legislature in 1956 did provide for the maximum and the minimum rent but as the decision of this Court in the case of Sanjanwala 1 shows in upholding the validity of the impugned provision of the Bombay Act no reliance was placed upon the fixation of the minimum rent
Indeed the minimum rent was fixed subsequent to the decision of the High Court which was under appeal before this Court in that case and the fact that a minimum had been prescribed subsequently has been only incidentally mentioned in the judgment
Therefore the absence of a provision fixing the minimum rent does not introduce any infirmity in the impugned provision
We are therefore satisfied that the case of the impugned section is substantially similar to the case of section 6 of the Bombay Act with which this Court was concerned in the case of Sanjanwala 1 and the challenge to the validity of section in the present appeal must therefore be held to be covered by the said decision
That takes us to the question as to whether the impugned notification is invalid
This notification has been issued in exercise of the powers conferred on the State Government by section 62 and it provides that the rate of maximum rent payable by the tenants of lands situated in the areas specified in Schedule I and Schedule If to the notification 235 shall be one third and one fourth respectively of the crop or crops raised on such lands with effect from the year commencing on April 1 1955
Schedule I deals with Maidan areas in which the maximum rent or rents shall be one third of the crop or crops and Schedule If deals with Malanad areas in which the maximum rate of rent shall be one fourth of the crop or crops raised
It appears that the classification of lands between Maidan an Malanad lands is well known in Mysore
Maidan lands are lands on the plains whereas Malanad are lands on hilly tracts
The distinction between the two categories of lands takes into account the different conditions of rain fall the different nature of the cultivation the difference  in the living conditions and the availability of labour and the difference in the quantity and the quality of the produce
It is true that the notification does not prescribe the lower rate of the maximum rent area by area in the sense of district by district but it purports to prescribe the said maximum by classifying the land in the whole of the State in the two well known categories of Maidan and Malanad lands
It is urged by Mr Shukla that the impugned notification is invalid because it is inconsistent with the provisions of section 61
The argument is that section 61 lays down a general rule and section 62 provides for an exception to the said general rule
On that assumption it is contended that an exception cannot be allowed to swallow up the general rule and that is precisely what the notification purports to do
This argument is based on the decision of the House of Lords in Macbeth vs Ashley It would be noticed that this argument raises the question about the construction of the two sub clauses of s6
Before addressing ourselves to that question 1 1874 LR 2 SC
236 however we may refer to the decision of the House of Lords on which the argument is based
It appears that II o clock at night was the hour appointed for closing public houres in Scotland although in special cases and for well considered reasons a deviation was allowed with reference to any particular locality really requiring it
The Magistrates of Rothesay had ordered for closing at 10 instead of 11 and the effect of the order was that it embraced every public house in the burgh
The House of Lords held that the Magistrates order was ultra vires
The statutory provision with which the House of Lords was concerned was contained in the Act of Parliament 25 and 26 Vict
c 35
As a result of these provisions 11 o clock at night was appointed to be the hour for closing public houses
There was however a proviso which said inter alia that in any particular locality requiring other hours for opening and closing inns hotels and public houses it shall be lawful for such justices and Magistrates respectively to insert in the schedule such other hours not being earlier than six or later than eight o clock in the morning for opening or earlier than nine o clock or later than eleven o clock in the evening for closing the same as they shall think fit
It is in pursuance of the authority conferred on them by the said proviso that the Magistrates of Rothesay passed an order embracing every public house in the burge by which a deviation from the statutorily fixed hour was effected
In dealing with the validity of the order issued by the Magistrates Lord Chancellor Lord Cairns expressed his opinion that if the exception is to swallow up the rule it ceases of course to be an exception at all and that which might fairly have been an exercise of discretion becomes no exercise of the kind of discretion mentioned in the Act of Parliament
It was for this reason that the order 237 issued by the Magistrates was declared to be ultra vires
It was conceded that the Magistrates had a discretion but the Lord Chancellor observed that the words conferring discretion expressly bear with reference to a particular locality and not with the whole burgh
What should be true about the whole burgh had been treated as a matter reserved for and determined by the consideration of the Imperial Parliament
The Lord Chancellor did not express any opinion on the question as to whether the discretion vested in the Magistrates can be exercised by them more than once but without deciding that point he held that the order of the Magistrates really amounted to evading an Act of Parliament
In substance the Magistrates had once for all attempted with regard to all the public houses in their district to change the rule laid down by the Act of Parliament
Lord Chelmsford who concurred with the opinion expressed by the Lord Chancellor rested his conclusion on the ground that it was impossible to say that the limits which the Magistrates had defined could be called a particular locality within burgh and so it appeared that what the Magistrates had done was something very like an attempt to evade the Act of Parliament
According to Lord Selborne the participle requiring is connected with the substantive locality and therefore it must be a requirement arising out of the particular circumstances of the place
That is why Lord Selborne thought that the Magistrates must in exercise of an honest and bona fide judgment be of opinion that the particular locality which they exopt from the ordinary rule is one which from its own special circumstances requires that difference to be made
It would thus be seen that though the general basis of tHe decision as it has been expressed by Lord Cairne appears to be that the exception cannot swallow up the rule one of the reasons which 238 ultimately influenced the decision was that the discretion had to be exercised bona fide and after due deliberation in respect of a particular locality and that the manner in which the order was issued indicated that the requirements of the particular localities had not been duly examined by the Magistrates
It is significant that though Lord Cairns posed the question as to whether the discretion in question can be exercised more than once he did not choose to answer it but the trend of the opinions expressed by the Law Lords during the course of their speeches may seem to suggest that the discretion cannot be exercised more than once and in any case it must be exercised by special reference to the particular locality as indicated by the proviso
If an order is made in respect of the whole of the burgh it cannot be said that it has been passed after exercising due discretion in respect of the requirements of each particular locality
With respect if the discretion is given to the Magistrates to provide for a departure from the rule prescribed by the general provision by reference to particular localities it is not easy to see why the said discretion cannot be exercised more than once
Indeed situations may arise when the Magistrates may have to consider the matter from time to time in respect of different localities and if it appears to the Magistrates considering the cases of different localities that in regard to each one of them a departure from the general rule should be made it is not easy to follow why the proviso does not justify different orders being passed by the Magistrates in respect of different but particular localities
On the other hand if the main provision is construed to mean that the time prescribed by it was to apply generally only with certain exceptions contemplated by the proviso that would be a different matter
However it is not necessary for us to pursue this point further and to express a definite 239 opinion on the general proposition that an exception cannot swallow the general rule because as we will presently show this rule cannot be applied to the provisions of section 6 at all
In this connection we may however point out that both in Max a well and in Craies the decision in Macbeth s case 1 appears to have been treated as an authority for the proposition that an order like the one passed by the Magistrates in that case amounted to an evasion of the Parliamentary statute because it was not in honest and bona fide exercise of the discretion vested in them
Maxwell on Interpretation of Statutes 11th Edn p 121 and Craies on Statute Law 5th Edn p 75 But assuming that the proposition for which Mr Shukla contends on the authority of the decision in Macbeth s case 1 is sound does it apply to section 6 at all and the answer to this question will depend upon the construction of the provisions contained in the two sub clauses of section 6
It would be noticed that section 61 declares a maximum beyond which no landlord can recover rent from his tenant
In other words as soon as the Act came into force a ceiling was fixed beyond which the landlord cannot recover rent from his tenant even though it may be justified by agreement usage decree or order of a court or any other law The provisions of this sub section apply individually and severally to all agricultural leases and govern the relations of individual landlords and tenants in respect of payment of rent by the latter to the former
The fixation of the maximum by sub section
1 is really not intended to lay down a general rule as to what a landlord should recover from his tenant and it is in that sense alone that its relation to the provisions of sub section
2 must be judged
In that connection we may point out that there is one proviso to 1 1874 L R 2 SC App 352
240 cultivate the land and it lays down that in their case the rent shall be reasonable rent to be fixed by the Amildar
Sub section 2 is so worded that in terms it cannot be said to be a proviso to sub section
1 add in substance it is not such a proviso nor is it an exception to sub section
Having prescribed the maximum beyond which agricultural rent cannot go under a 61 the legislature has premitted the Government to fix a lower rate of the maximum rent in respect of lands situated in particular areas
The Government has also been authorised to fix the payment of rent on any other suitable basis as it thinks fit
In other words the authority conferred on the Government is either to fix a lower rate or to fix any other basis on which the rent could be fixed
The provision is an independent provision and so the two sub sections must be read as different independent though coordinate provisions of the Statute
It would we think be erroneous to treat sub section
2 as a proviso or exception to sub section
Whereas suba
1 deals with and applies to all leases individually and prescribes a ceiling in that behalf sub section
2 is intend to prescribe a maximum by reference to different areas in the State
The object of both the provisions is no doubt simi lar but it is not the same and the relation between them cannot legitimately be treated as the relation between the general rule and the proviso or exception to it
The argument that by issuing the notification the Government has purported to amend a 61 is in our opinion not well founded
As we have already seen a 61 is intended to apply to all the agricultural leases until a notification is issued under a 62 in respect of the areas where the leased lands may be situated
It is not suggested that 241 under section 62 it is necessary that the Government must fix the lower rates by reference to individual lands and so there can be no doubt that even on the appellant s argument it would be competent to the Government to fix lower rents say districtwise
If instead of prescribing the lower rates districtwise after classifying the lands into two categories which are well recognised the Government prescribed the rates by reference to the said categories of lands throughout the State we do not see how the said notification can be said to be inconsistent with section 62 or with section 6 1 either
The scheme of section 6 does not seem to postulate that after the notifications are issued under section 62 some area must inevitably be left to be covered by section 61
Such an assumption would be inconsistent with the object underlying the said provision itself
What section 61 has done is to fix a general ceiling apart from the areas and without considering the special factors appertaining to them
Having thus fixed a general ceiling the Legislature realised that the ceiling may have to be changed from area to area and so power was conferred on the Government to fix the ceiling at a lower rate The Government having examined the matter came to the conclusion that the more equitable and reasonable course to adopt would be to divide the agricultural lands into two well known categories and fix the ceiling by reference to them
Now in the very nature of things the Legislature must have anticipated that the exercise of the power under a 62 might cover all the areas in the State and that may mean that the general ceiling prescribed by section 61 may not apply to any land which is covered by the notification
If section 61 is not a general rule and section 62 is not an exception to it then the consequence flowing from the issue of the impugned notification cannot be characterised as an exception swallowing up the 242 general rule
That in substance is the view which the Mysore High Court has taken in the matter and we think that the said view is right
In the result
 the appeal fails and is dismissed with costs
Appeal dismissed


Summary:
The Mysore Tenancy Act 1952 was enacted inter alia for the purpose of regulating the law which governed the relations of landlords and tenants of agricultural lands
Subsection 1 of section 6 of the Act provided  Notwithstanding any agreement usage decree or order of a court or any law the maximum rent payable in respect of any period by a tenant for the lease of any land shall not exceed one half of the crop or crops raised on such land or its value as determined in the prescribed manner
The Government may by notification in the Mysore Gazette fix a lower rate of the maximum rent payable by the tenants of lands situate in any particular area or may fix such rate on any other suitable basis as they think fit
In exercise of the powers conferred by s62 the Government of Mysore issued a notification purporting to fix the standard rent for land 227 specified in Sch
I which dealt with Maidan areas ie lands on the plains at one third of the produce and for those specified in Sch
II which dealt with Malnad areas ie lands on hilly tracts at one fourth
The appellant who owned garden land in the district of Shimoga in Mysore State and who had leased out the land to a tenant challenged the validity or s 62 of the Act as well as the notification on the rounds that they contravened articles 14 191 f 26 31 and 31 A of the Constitution of India and that in any case the notification was inconsistent with section 61 inasmuch as it was based on section 62 which being an exception to section 61 could not be allowed to swallow up the general rule and that was precisely what the notification purported to do
The Mysore Tenancy Act was modelled on the pattern of the Bombay Tenancy and Agricultural Lands Act 1948 and the provisions of s6 of the Mysore Act were
similar to s6 of the Bombay Act
In Vasantlal Maganbhai Sanjanwala vs The State of Bombay   it was held that section 6 of the Bombay Act was vaild
The appellant contended that the aforesaid decision was not applicable because there were difference between the two Acts inasmuch as 1 in the preamble to the Bombay Act it was stated that it was passed inter alia for the purpose of improving the economic and social conditions of peasants and this was not mentioned in the Mysore Act 2 unlike the Mysore Act the Bombay Act made a distinction between the irrigated and non irrigated land 3 the Bombay Act while prescribing a maximum took the precaution of also prescribing a minimum and the absence of the latter provision in the Mysore Act made a I material difference
Held that  1 the Mysore Tenancy Act 1952 was substantially similar to Bombay Tenancy and Agricultural Lands Act 1948 and that the question as to be whether section 6 2 of the Mysore Act was valid must be held to be covered by the decision the Vasantlal Maganbhai Sanjanwala vs The State of Bombay  Accordingly s62 of the Mysore Tenancy Act 1952 was valid
2 on its true construction section 61 of the Mysore Tenancy Act 1952 wag intended to apply to all agricultural leases until a notification was issued under s62 in respect of the areas where the leased lands might be situated  s 62 could not therefore be considered as an exception to s61 Consequently the notification in question was valid 228 Macbeth vs Ashley 1874 LR 2 Sc
App 352 considered and held inapplicable