Appeal No 277 of 1955
Appeal from the judgment and order dated April 27 1954 of the Rajasthan High Court in Civil Mis
Writ No 11954
N C Chatterjee Suresh Agarwal and Ganpat Rai for the appellant
RK Rastogi and K L Mehta for the respondents
October 19
The Judgment of the Court was delivered by IMAM J
The appellant was the Jagirdar of Thikana Rakhi in the Marwar Jodhpur area of the State of Rajasthan
Within Thikana Rakhi was the 49 village of Khakharki
He had a number of tenants under him in the village who paid rent on the basis of a certain share of the produce of the land held
There was an Act in force in the Marwar area called the Marwar Tenancy Act of 1949 hereafter refer
red to as the Tenancy Act which had been passed by His Highness the Maharaja of Jodhpur before the integration of the State of Jodhpur in the State of Rajasthan
That Act now stands repealed but we are concerned with a period when it was in force
Section 78 of that Act provides that when rent is payable by a division of the produce or is based on an estimate or appraisement of the standing crop the landlord or the tenant may apply to the Tahsildar for making the division estimate or appraisement when this could not be done amicably
Section 79 of the Tenancy Act lays down the procedure to be followed at the hearing of such an application and provides that any amount found due as rent by the Tahsildar on that application shall have the effect of a decree for arrears of rent
On October 31 1950 the appellant who had some difficulty in realising the rent from his tenants in village Khakharki made an application under section 78 of the Tenancy Act to the Tahsildar Merta within which the village Khakharki was situate
Before this application was finally disposed of the Government of Rajasthan issued a Notification under section 85 of the Tenancy Act which is set out below Jaipur February 22 1951
No F 474 Rev1 51
Whereas it has been made to appear that the cultivators of the villages mentioned in the Schedule below have refused to pay rent to the persons entitled to collect the same Now therefore in exercise of the power conferred by sub sec
1 of sec
85 of the Marwar Tenancy Act 1949 No XXXIX of 1949 the Government of Rajasthan is pleased to declare that such rents may be recovered as arrears of land revenue
7 50 by order of His Highness the Rajpramukh H D Ujwal Secretary to the Government of Rajasthan Revenue Department
This Notification was published in the Official Gazette on March 3 1951 and one of the villages mentioned in the Schedule to it was Khakharki
In view of the Notification the appellant became entitled under section 85 the terms of which will be set out later to have the rents due to him from the tenants of Kbakharki realised as arrears of land revenue
Accordingly on March 9 1951 he filed an application under that section in the Court of the Collector Nagaur within whose jurisdiction lay the village of Khakharki for recovery as arrears of land revenue of the rents due to him for 1950 51 from those tenants of Khakharki who had refused to pay them
Subsequently on March 26 1951 the appellant s application under section 78 of the Tenancy Act was dismissed for reasons which it is not necessary for the purpose of this appeal to state
On March 29 1951 the tenants filed an application in the Court of the Collector of Nagaur stating that the notice of the appellant s application under section 85 of the Tenancy Act should be served on them and they should be heard on that application as this was required by the rules framed under the Rajasthan Revenue Courts Procedure and Jurisdiction Act of 1951 hereinafter referred to as the Revenue Courts Act which governed that application
The Revenue Courts Act was an Act passed by the Rajpramukh of the State of Rajasthan with which the State of Jodhpur had integrated prior thereto and it applied to the whole State of Rajasthan including the Marwar area
This Act came into force on January 31 1951
This application by the tenants was rejected by the Collector
Thereafter on April 5 1951 the Collector passed an order by which a total sum of Rs 38587 30 was found due to the appellant from the tenants on account of rent other charges and court fees
The 51 Collector then sent the order to the Tahsildar of Merta for recovering that sum as arrears of land revenue
The tenants filed an appeal before the Additional Commissioner Jodhpur challenging the validity of the order of the Collector dated April 5 1951
This appeal was dismissed by the Additional Commissioner on November 2 1951
The tenants then went in revision to the Board of Revenue Rajasthan
The Board of Revenue took the view that the Revenue Courts Act had not affected the procedure to be followed on the hearing of an application under section 85 of the Tenancy Act but it remanded the case to the Additional Commissioner as the tenants contended that the Additional Commissioner had not decided other points that arose in the appeal to him
The Additional Commissioner heard the tenants on the other points and again dismissed their appeal on July 71952
The tenants moved the Board of Revenue in revision against the order of July 7 1952 also
Before the Board of Revenue could decide the revision case the Government of Rajasthan on November 1 1952 published another Notification rescinding the earlier Notification dated February 22 1951 issued under section 85 of the Tenancy Act
One of the points argued before the Board of Revenue in this revision case was that in view of the rescission of the Notification no further proceedings could be taken under section 85 of the Tenancy Act for recovery of rent as arrears of land revenue
The Board of Revenue rejected this and all other contentions raised on behalf of the tenants and dismissed the revision case on September 29 1953
Fortythree of the tenants filed a petition in the High Court for Rajasthan for a writ of certiorari to quash the orders of the Collector the Additional Commissioner and the Revenue Board earlier mentioned
The High Court allowed the petition and quashed and set aside these orders and held that the Notification under section 85 of the Tenancy Act having been cancelled no further proceedings for realisation of arrears of rent as arrears of land revenue could be taken by the Collector of Nagaur
The High Court however granted a certificate that the case was a fit one for appeal 52 to the Supreme Court
Hence the present appeal
The rent found due has not been realised yet by the Tahsildar presumably in view of the pending proceedings
The respondents to the appeal are the State of Rajasthan and various Revenue Officers of that State and the tenants
This appeal has been contested only by some of the tenants and the other respondents have not appeared before us
Section 85 of the Tenancy Act is in these terms section 85  1 In case of any general refusal to pay rent to persons entitled to collect the same in any local area the Government may by notification in the Official Gazette declare that such rents may be recovered as arrears of land revenue
2 In any local area to which a notification made under sub sec
1 applies a landlord or any other person to whom an arrear of rent is due may notwithstanding anything to the contrary in this or any other enactment for the time being in force instead of suing for recovery of the arrear under this Act apply in writing to the Deputy Commissioner to realise the same and the Deputy Commissioner shall after satisfying himself that the amount claimed is due proceed subject to the rules made by the Government to recover such amount with costs and interest as an arrear of land revenue
3 The Deputy Commissioner shall not be made a defendant in any suit in respect of an amount for the recovery of which an order has been passed under this section
4 Nothing herein contained and no order passed under this section shall debar a a landlord from recovering by suit or application any amount due to him which has not been recovered under this section b a person from whom any amount has been recovered under this section in excess of the amount due from him from recovering such excess by suit against the landlord or other person on whose application the arrear was realised
The first point raised on behalf of the respondents in the High Court was that section 85 of the Tenancy Act 53 had itself been repealed by the Revenue Courts Act and no action under that section could be taken after the latter Act had come into force
The Revenue Courts Act was repealed in 1955 after the judgment of the High Court was delivered but this does not affect the question before us
The long title of the Act states that the Act is intended to provide for and regulate the jurisdiction and procedure of Revenue Courts and Officers in Rajasthan
The preamble states  Whereas it is expedient pending the enactment of a comprehensive law for the whole of Rajasthan relating to agricultural tenancy land tenures revenue rent survey record settlement and other matters connected with land to provide for and regulate the jurisdiction and procedure of revenue courts and officers in relation to such matters arising under the laws in force in the covenanting States of Rajasthan 
Jodhpur was one of the covenanting States and one of the laws in force there was the Tenancy Act
This Act continued to apply to the territories belonging to the former Jodhpur State which since the integration formed part of the State of Rajasthan till that Act was repealed as hereinbefore stated
Section 2 of the Act provides  On and from the coming into force of this Act all existing laws shall in so far as they relate to matters dealt with in this Act be repealed 
It is said that the effect of section 2 of the Revenue Courts Act is to repeal section 85 of the Tenancy Act
The High Court was unable to accept this contention and we think rightly
Section 85 of the Tenancy Act would be repealed only if the Revenue Courts Act contained any provision dealing with the matter covered by it
We find no such provision in the Revenue Courts Act The Revenue Courts Act deals with matters of jurisdiction and procedure of Revenue Courts
It does not deal with any substantive right
This is clear from the provisions of the Revenue Courts Act and indeed is not in dispute
Quite clearly section 85 creates on the requisite notification being issued a substantive right in a landlord to have the rent due to him recovered as arrears of land revenue
We do not find any provision 54 in the Revenue Courts Act dealing with the substantive right created by section 85 of the Tenancy Act
There is therefore no foundation for the argument that that section has been repealed by section 2 of the Revenue Courts Act
A reference to schedule 1 to Revenue Courts Act which gives a list of suits and applications triable by a Revenue Court and prescribes the periods of limitation applicable to and court fees payable on them can usefully be made now
The schedule is divided into several groups of which group C contains a list of applications triable by a Collector
Item 2 of this group concerns applications  for realisation of rent as land revenue on the general refusal to pay rent 
In regard to the period of limitation for such applica tions it is stated there that none exists
We have no doubt that item 2 of group C in the schedule does not confer a substantive right to make an application for realisation of rent as land revenue at all
The purpose of the schedule appears from sections 7 9 and 10 of the Act which respectively provide that the jurisdiction of the various revenue courts the periods of limitation for proceedings maintainable in these Courts and the court fees payable thereon are as stated in the schedule
The schedule is not operative by itself So item 2 of group C in the schedule does not confer any right to apply for collection of rent as arrears of land revenue
On the other hand the mention of such an application in the schedule clearly indicates that the Revenue Courts Act recognises that such an application is competent
Since the Revenue Courts Act itself does not authorise such an application it must be so competent under other existing laws reference to which has been made in the preamble and section 2 of the Act
One of such laws is section 85 of the Tenancy Act
Therefore it seems to us that the Revenue Courts Act instead of repealing section 85 of the Tenancy Act contemplates its continuance in force
It is necessary before leaving this part of the case to refer to Ch
XIII of the Tenancy Act which deals with procedure and jurisdiction
It consists of sections 118 to 144
Section 118 says that all suits and applications of the nature specified in the second schedule to 55 the Act shall be heard and determined by a Revenue Court
Section 124 states that all suits and other proceedings especified in the second schedule shall be instituted within the time prescribed for them in that schedule
Section 129 provides that a Deputy Commissioner shall have power to dispose of applications specified in group E of the second schedule
It is not necessary to refer to the other sections in this Chapter
Turning to second schedule we find that group E is concerned with applications triable by a Deputy Commissioner
Item 4 of this group deals with applications under section 85  for collection of rent as land revenue in the event of general refusal to pay 
The period of limitation for such applications is stated there to be  so long as notification remains in force  and this period is stated to commence from the time when the notification under the section is published in the Official Gazette
Now the Revenue Courts Act provides by section 7 that all suits and applications of the nature specified in the first and second schedules shall be heard and determined by a revenue court
A revenue court is defined in section 4xvi of this Act as including among others the Board of Revenue the Commissioners and the Collectors
We have earlier stated that item 2 of group C in the first schedule to this Act refers to an application under section 85 of the Tenancy Act and provides that there shall be no period of limitation for making such an application and that it shall be made to a Collector
Therefore for an application under section 85 of the Tenancy Act the Revenue Courts Act specifies a new revenue court namely the Collector in the place of the Deputy Commissioner mentioned in section 85 of the Tenancy Act and also makes it free of the bar of limitation
It follows that sections 7 and 9 of the Revenue Courts Act deal with matters dealt with in sections 118 124 and 129 of the Tenancy Act
By virtue of section 2 of the Revenue Courts Act sections 118 124 and 129 of the Tenancy Act will have to be taken as repealed
There would also consequently be a repeal of item 4 of group E in the second schedule to the Tenancy Act
The position then is that since the coming into force of 56 the Revenue Courts Act there is no period of limitation prescribed for making an application under section 85 of the Tenancy Act and that application has to be made to a Collector
The application under section 85 by the appellant in the present case had been made to the Collector as at the date when it was made the Revenue Courts Act was in force
The repeal of sections 118124 and 129 of the Tenancy Act does not however affect section 85 of this Act except as hereinbefore stated
Next it is said that even though section 85 of the Tenancy Act may not have been repealed the procedure to be followed in respect of an application made under it is in view of r 114 in Ch
IV of the rules framed under the Revenue Courts Act is that laid down in Ch
11 of these rules and that that procedure was not followed
This it is contended constitutes an error apparent on the face of the orders passed by the revenue authorities in this case and renders them liable to be set aside
A reference has now to be made to the rules framed under section 85 of the Tenancy Act
These rules so far as relevant for our purpose prescribe that an application by the landlord under the section shall be accompanied by a list in a prescribed form in which is to be stated the dues of the landlord for canal charges rent interest and court fees
Rule 34 provides that the Deputy Commissioner shall check the lists by examining the Patwari or by any other suitable method and thereafter enter in the appropriate column in the form the amounts passed by him as due to the landlord
Under r 35 he has thereafter to send the list to the Tahsildar who shall then proceed to realise the amount stated in the list by the Deputy Commissioner to be due to the landlord
It is said on behalf of the tenants that the rules under section 85 lay down the procedure for the disposal of an application made under that section and that these rules have been repealed by section 2 of the Revenue Courts Act read with r 114 of the rules framed under that Act
It is contended that the revenue authorities committed an error in following the rules framed 57 under section 85 of the Tenancy Act and not those prescribed in Ch
11 of the rules made under the Revenue Courts Act
Now Ch
IV of the rules framed under the Revenue Courts Act consists only of r 114
That rule provides that the procedure laid down in Ch
II of the same rules shall be followed so far as it can be made applicable in all proceedings in revenue courts
In view of section 7 of the Revenue Courts Act an application under a 85 of the Tenancy Act must since the coming into force of the former Act be heard and determined by a revenue court
Such an application there
fore gives rise to a proceeding in a revenue court and such a proceeding must it is said in view of r 114 be according to the procedure prescribed by Ch
11 of the rules framed under the Revenue Courts Act
It is enough for our purposes to say that Ch
II lays down a procedure for a contested matter that is to say it requires that notice of the proceedings should be issued to the respondent to it and he should be given a hearing
It is unnecessary to refer to the detailed procedure prescribed in this chapter for as no notice of the application had in fact been given to the tenants in this case and they had not been heard on it it must be held that the procedure laid down in that chapter had not been followed
The High Court accepted the contention of the tenants that the rules framed under section 85 of the Tenancy Act had been repealed and that the rules in Ch
II of the rules framed under the Revenue Courts Act applied and should have been followed
It therefore held that there was an error apparent on the face of the record and thereupon set aside the orders of the revenue authorities challenged by the tenants
We have given our anxious consideration to this question but have been unable to agree with the view taken by the High Court
It seems to us that the rules made under section 85 of the Tenancy Act had not laid down any special procedure
The only rule relevant in this connection is r 34 to which we have earlier referred
All that that rule does is to require 8 58 the Deputy Commissioner to check the list a duty which under the section itself he has to perform and also makes it necessary for him to examine the patwari for the purpose
The rules do not indicate how the application is to be heard that is whether ex parte or on notice
It seems clear to us that a 85 itself requires an application made under it to be heard ex parte
First the section does not say that a notice of the application has to be served on the tenant concerned
Secondly an application under the section can be made only after the notification prescribed has been issued
That notification decides that there has been a general refusal by tenants to pay rent
Therefore the section could not have contemplated that the question whether a tenant had so refused would be heard again on notice to him
Thirdly in proceedings for recovery of land revenue the persons liable are not heard and therefore when rent is directed to be recovered as land revenue it is not contemplated that the tenants should be heard
It is of the essence of such proceedings that there shall be a summary and quick decision
If the procedure laid down in Ch
11 of the rules framed under the Revenue Courts Act has to be followed the entire object of section 85 of the Tenancy Act would in our view be defeated
It seems to us that section 85 would then really become redundant for then it would contemplate an application for realisation of rent giving rise to a contested proceeding governed by the procedure of a suit and would be a duplication of section 78 of the Tenancy Act earlier referred to or of section 80 of the same Act which provides for a suit in a revenue court for the recovery of rent both of which have to be heard as contested proceedings in the presence of the other side
Fourthly c1
b of sub sec
4 of section 85 of the Tenancy Act plainly indicates that the proceeding on an application under that section is to be ex parte
That clause contemplates a suit against a landlord by a tenant from whom an amount in excess of what is legally due has been recovered under the section
Now the amount recovered cannot of course exceed the amount 59 passed as due by the Deputy Commissioner
So the suit contemplated in section 854b would really be one to contest the correctness of the finding of the Deputy Commissioner as to the amount due
It would be inconceivable that such would be contemplated under the section if the amount has to be decided by the Deputy Commissioner after hearing the tenant
It is clearly not necessary that two contested proceedings one after the other in respect of the same question between the same parties should be provided for
It seems therefore quite clear to us that section 85 of the Tenancy Act contemplates that the application made under it shall be heard and determined in the absence of the tenant
Indeed this is not really questioned for the contention on behalf of the tenants is that the procedure followed is wrong Dot because that is not the procedure laid down in the Tenancy Act but because the Revenue Courts Act and the rules made thereunder had replaced the ex parte procedure provided by the Tenancy Act by the procedure of a Contested proceeding laid down in Ch
11 of the rules framed under the Revenue Courts Act and this is the procedure which should have been followed
Now once it is found as we have found that section 85 of the Tenancy Act has not been repealed by the Revenue Courts Act except to the extent that an application under it has now to be made to a Collector and not to a Deputy Commissioner as provided in it the whole of it has to be given effect to
The procedure contemplated by the section is an integral part of the right granted by it and one cannot be separated from the other
The application made under it has therefore still to be heard and determined ex parte
Rule 114 of the rules framed under the Revenue Courts Act earlier referred to can be of no assistance to the tenants in the present context
It does not in terms purport to repeals
85 of the Tenancy Act
We have earlier said the Revenue Courts Act contemplated the continuance in force of section 85 of the Tenancy Act and hence no rule framed under the former Act 60 could intend by implication to repeal that section
Rule 114 may apply to applications under other provisions of existing laws which are not required by them to be heard ex parte
In our view for the reasons aforesaid the application under that section was properly and correctly heard and determined without notice to the tenants
Such hearing does not disclose any error at all
Then it is said that after the rescission of the Notifi cation dated February 22 1951 no further proceeding could be taken under section 85 of the Tenancy Act
This contention also found favour with the High Court and with this view again we are unable to agree
Subsection 1 of that section provides for the issue of a notification declaring that certain rents may be recovered as arrears of land revenue
Sub section 2 states that  in any local area to which a notification made under sub section 1 applies a landlord to whom an arrear of rent is due may apply in writing to the Deputy Commissioner to realise the same and the Deputy Commissioner shall after satisfying himself that the amount claimed is due proceed  to recover such amount as an arrear of land revenue
 It is contended that the words  in any local area to which a notification made under subsection 1 applies  govern both the application by the landlord and the action of the Deputy Commissioner following thereon and therefore the Deputy Commissioner cannot after the rescission of the notification take any action under the section at all
It seems to us that this contention of the tenants is not warranted by the language of the section
The words  in any local area to which a notification made under sub section 1 applies  are concerned with the area and not with the time during which the notification remains in force
That follows from the words  in any local area 
There is no reference anywhere to the currency of the notification in point of time
Item 4 of group E in schedule 11 to the Tenancy Act earlier referred to leads to the same conclusion
That item provides that the period of limitation for an application under section 85 is so long as notification 61 remains in force
It is clear that if in sub sec
2 the words in any local area to which a notification applies  meant during the currency of the notification in point to time there would have been no need to specify a period of limitation in schedule 11
We have also earlier pointed out that item 4 of group C in schedule II has been repealed by the corresponding provisions in the Revenue Courts Act
Since the latter Act came into force the position is that there is no period of limitation for an application under section 85 of the Tenancy Act
It is impossible therefore to contend that the words  in any local area to which a notification made under sub section 1 applies  indicate that the Deputy Commissioner s power to act when an application under that section is made exists only so long as the notification remains in force
It also seems to us that the Deputy Commissioner s power to act arises on an application having been duly made under sub see
2 of section 85
Even if that application had to be made within the period that the notification remained in force there would be nothing in sub sec
2 to lead to the conclusion that the Deputy Commissioner s power to act on the application would also depend on the notification remaining in force
It may be stated here that in the present case the application had been made before the Notification had been rescinded
Once the notification under section 85 is issued power is certainly vested in the appropriate Revenue officers to deal with and dispose of an application made under that section at a time the notification was in force and applied to the particular area
Subsequent cancellation of the notification would not divest the appropriate authority of the power already vested in him to dispose of the application which was properly and duly made under section 85
In our view steps can be taken under section 85 of the Tenancy Act by the appropriate Revenue Officer for realisation of rent found due as arrears of land revenue even after the notification under that section has been rescinded
Reliance is placed by the learned advocate for the respondents on Crown vs Haveli 1
In that case it 1 AIR 1949 Lah
62 was held that further proceedings under a temporary Act could not be continued after it had expired
It is contended that section 85 of the Tenancy Act was really a temporary Act for it was brought into operation only upon a notification which notification was clearly not intended to be of permanent operation
We are unable to accept this view
The fact if this be so that section 85 is brought into operation by a notification and that that notification may not be of permanent operation does not make the section a temporary enactment
We do not think that the principles applicable to interpretation_ of temporary Acts apply to the case of a provision like section 85 of the Tenancy Act
reliance is also placed on cla of sub sec
4 of s85 of the Tenancy Act
It is said that this clause by permitting suits for recovery of rents which have not been recovered under the section indicates that after the rescission of the Notification further proceedings cannot be taken under the section
It is contended that cl
a contemplates that it may so happen that when a notification is rescinded the whole amount of rent in respect of which the application under section 85 had been made had not been recovered and that cl
a permits suit to be filed in respect of the amount which remained unrealised at the date the notification is rescinded
This argument seems to us to beg the question for it proceeds on the basis that the suit contemplated by el
a is for the amount of rent which cannot be recovered under the section any more because of the rescission of the notification
Clause a however may clearly apply to a case where in spite of a notification under the section the landlord whether during its currency or later chooses to proceed by way of a suit under the other provisions of the Tenancy Act
It is then contended on behalf of the tenants that the Notification of February 22 1951 was not a valid notification because out of 125 tenants in village Khakharki 82 had paid rent and the remaining 43 who are the respondents in this appeal were willing to pay but could not pay as the appellant was asking 63 for larger sums than what were legitimately due to him
It is contended that on these facts it could not be said that there was a general refusal to pay rent within the meaning of section 85 of the Tenancy Act
Hence it is said that the Notification was ultra vires the section and inoperative
We do not think that the tenants can be allowed to raise this point in this Court
It does not appear to have been raised in the High Court
The High Court s judgment makes no mention of it
Whether it is open for a Court to go behind the notification issued under section 85 and decide its validity or not this contention of the tenants raises a question of fact as to how many tenants had refused to pay rent
It also raises a question of interpretation of the words general refusal to pay  in section 85
None of these questions was raised at any earlier stage
We are therefore not inclined to allow the tenants to raise them now
In the result we allow the appeal with costs here and below
Appeal allowed


Summary:
The appellant a non resident for the purposes of the Indian Income tax Act did not submit returns of certain dividend income accruing to him within the taxable territory
The Income tax Officer served upon him notices under section 34 read with section 222 of the Act for assessment of tax in respect of those years
The notices in question were issued within eight years from the end of the years of assessment and were within the period prescribed by section 34ia
The appellant contended that notices for assessment were governed by cl
ib of section 34 and not by cl
ia even though the appellant had not made a return of his income for the years in question as a general notice under section 221 did not give rise to a liability to submit a return and his inaction did not amount to omission or failure to submit a return as he was a non resident and the assessment proceedings were barred by limitation
Held that the expression every person  in section 22 1 of the Indian Income tax Act 1922 includes all persons who are liable to pay tax and non residents are not exempted from liability to submit a return pursuant to the general notice thereunder
Once a notice is given by publication in the prescribed manner under section 22i every person whether resident or non resident whose income exceeds the maximum amount exempt from tax is obliged to submit a return and if he does not do so 36 it will be deemed that there was omission on his part to make a return within the meaning of section 34ia of the Indian Income tax Act
Section 341b applied only to those cases where there was no omission or failure to make a return of the income or to make a full and true disclosure of facts material to the assessment
In the instant case the proceedings for assessment were pro perly commenced within the period of limitation prescribed by section 341a