Case: Thakur Kesari Singh Vs. The State Of Rajasthan And Others

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 Sch. II to the Tenancy Act earlier referred to, leads to the same conclusion. That item provides that the period of limitation for an application under S. 85 is so long as notification 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 of time, there would have been no need to specify a period of limitation in Sch. II. We have also earlier pointed out that item 4 of group C in Sch. II has been repealed by the corresponding provisions in the Revenue Courts Act.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 S. 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-sec. (1) applies" indicate that the Deputy Commissioners power to act when an application under that section is made, exists only so long as the notification remains in force.28. It also seems to us that the Deputy Commissioners power to act arises on an application having been duly made under sub-sec. (2) of S. 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 Commissioners 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 It may be stated here that in the present case the application had been made before the Notification had been rescinded.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 S. 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 S. 85. In our view, steps can be taken under S. 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.29. Reliance is placed by the learned advocate for the respondents on Crown v. Haveli, AIR 1949 Lah 191 (FB). In that case it was held that further proceedings under a temporary Act could not be continued after it had expired. It is contended that S. 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 S. 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 S. 85 of the Tenancy Act.30. Reliance is also placed on cl. (a) of sub-sec. (4) of S. 85 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 S. 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 cl. (a) is for the amount of rent which cannot be recovered under the section anymore 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.31. 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 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 S. 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 Courts judgment makes no mention of it. Whether it is open for a Court to go behind the notification issued under S. 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 S. 85. None of these questions was raised at any earlier stage.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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, S. 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 in the Revenue Courts Act dealing with the substantive right created by S. 85 of the Tenancy Act. There is, therefore, no foundation for the argument that that section has been repealed by S. 2 of the Revenue Courts Act.A reference has now to be made to the rules framed under S. 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 134 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.16. It is said on behalf of the tenants that the rules under S. 85 lay down the procedure for the disposal of an application made under that section, and that these rules have been repealed by S. 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 under S. 85 of the Tenancy Act and not those prescribed in Ch. II of the rules made under the Revenue Courts Act.Act.18. 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 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 S. 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.20. 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 S. 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 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.21. It seems clear to us that S. 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 that 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. II of the rules framed under the Revenue Courts Act has to be followed, the entire object of S. 85 of the Tenancy Act would, in our view, be defeated. It seems to us that S. 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 S. 78 of the Tenancy Act earlier referred to or of S. 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, cl. (b) of sub-sec. (4) of S. 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 passed as due by the Deputy Commissioner. So the suit contemplated in S. 85 (4) (b) 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.22. It seems, therefore, quite clear to us that S. 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, not 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. II of the rules framed under the Revenue Courts Act and this is the procedure which should have been followed.25. 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.26. Then it is said that after the rescission of the Notification dated February 22, 1951, no further proceeding could be taken under S. 85 of the Tenancy Act. This contention also found favour with the High Court and with this view again we are unable to agree. Sub-sec. (1) of that section provides for the issue of a notification declaring that certain rents may be recovered as arrears of land revenue.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 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 S. 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.