Case: Sree Raghuthilakathirtha Sreepadangalavaru Swamiji  Vs. The State Of Mysore And Others

case (1874) 2 Sc and Div 352, 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 Edition, p. 121 and Craies on Statute Law, 5th Edition, p. 75).17. But assuming that the proposition for which Mr. Shukla contends on the authority of the decision in Macbeths case (1874) 2 Sc and Div 352, is sound, does it apply to S. 6 at all and the answer to this question will depend upon the construction of the provisions contained in the two sub-clauses of S. 6. It would be noticed that S. 6 (1) 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 subsection 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-s. (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-s. (2) must be judged. In that connection we may point out that there is one proviso to S. 6 (1) which deals with cases of tenants who do not cultivate the land and it lays down that in their case the rent shall be reasonable rent to be fixed by the Amildar.18. Sub-section (2) is so worded that in terms it cannot be said to be a proviso to sub-s. (1) and in substance it is not such a proviso nor is it an exception to sub-s. (1). Having prescribed the maximum beyond which agricultural rent cannot go under S. 6 (1) the legislature has permitted 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. This provision is an independent provision and so the two sub-sections must be read as different, independent, though co-ordinate, provisions of the Statute. It would, we think, be erroneous to treat sub-s. (2) as a proviso or exception to sub-s. (1). Whereas sub-s. (1) deals with and applies to all leases individually and prescribes a ceiling in that behalf, sub-s. (2) is intended to prescribe a maximum by reference to different areas in the State. The object of both the provisions is no doubt similar 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.19. The argument that by issuing the notification the Government has purported to amend S. 6 (1) is, in our opinion, not well founded. As we have already seen, S. 6 (1) is intended to apply to all the agricultural leases until a notification is issued under S. 6 (2) in respect of the areas where the leased lands may be situated. It is not suggested that under S. 6 (2) 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 appellants argument it would be competent to the Government to fix lower rents, say district-wise. If instead of prescribing the lower rates district-wise 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 S. 6 (2) or with S. 6 (1) either. The scheme of S. 6 does not seem to postulate that after the notifications are issued under S. 6 (2) some area must inevitably be left to be covered by S. 6 (1). Such an assumption would be inconsistent with the object underlying the said provision itself. What S. 6 (1) 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 S. 6 (2) might cover all the areas in the State and that may mean that the general ceiling prescribed by S. 6 (1) may not apply to any land which is covered by the notification.If S. 6 (1) is not a general rule and S. 6 (2) 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 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.

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

Explanation:
0[ds]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 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 substantiallyAs we have already indicated, the provisions of the twoof S. 6 are substantially similar to the provisions of S. 6 (1) and (2) of the corresponding Bombay Act. Indeed, it would be correct to say that the 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 S. 6 of the Bombay Act was challenged before this Court in "Vasantlal Maganbhai Sanjanwala v. State of Bombay, (1961) 1 SCR 341 : (AIR 1961 SC 4 )", and it has been held that the said section is valid.The reasons given by this Court in upholding the validity of S. 6 of the Bombay Act apply with equal force in support of the validity of S. 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 thisare not impressed by this argument. It is true that the preamble to the Act merely says that the Act was passed because it was thought 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 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 S. 6 of the Act from the corresponding section of the Bombay Act.9. Then it is urged that unlike the Mysore Act, the Bombay Act has distinguished between irrigated land andland and has provided by S. 6 (1) that the maximum rent payable in the case of irrigated land shall not exceedand in the case of other lands shall not exceedof the crop of such land or its value as determined in the prescribed manner.It is true that S. 6 (1) of the Act makes no such distinction between irrigated andlands. But that, in our opinion, is not a matter of essential importance. Like S. 6 (1) of the Bombay Act S. 6 (1) 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 andlands. 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 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 lands while prescribing a maximum S. 6 (1) suffers from any infirmity.10. 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 S. 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, (1961) 1 SCR 341 : (AIR 1961 SC 4 ) (supra) 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 S. 6 of the Bombay Act with which this Court was concerned in the case of Sanjanwala, (1961) 1 SCR 341 : (AIR 1961 SC 4 ), and the challenge to the validity of the section in the present appeal must, therefore, be held to be covered by the said decision.It appears that 11 oclock at night was the hour appointed for closingin 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 everyin 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 oclock 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 oclock in the morning for opening, or earlier than nine oclock or later than eleven oclock 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 everyin the burgh by which a deviation from the statutorily fixed hour was effected.15. 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 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 thein 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 except from the ordinary rule is one which, from its own special circumstances, requires that difference to be made.16. It would thus be seen that though the general basis of the decision, as it has been expressed by Lord Cairns, appears to be that the exception cannot swallow up the rule one of the reasons which 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 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 S. 6 at all. In this connection, we may, however, point out that both in Maxwell and in Craies, the decision in Macbeths case (1874) 2 Sc and Div 352, 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 Edition, p. 121 and Craies on Statute Law, 5th Edition, p. 75).17. But assuming that the proposition for which Mr. Shukla contends on the authority of the decision in Macbeths case (1874) 2 Sc and Div 352, is sound, does it apply to S. 6 at all and the answer to this question will depend upon the construction of the provisions contained in the twoof S. 6. It would be noticed that S. 6 (1) 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 subsection 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(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(2) must be judged. In that connection we may point out that there is one proviso to S. 6 (1) which deals with cases of tenants who do not cultivate the land and it lays down that in their case the rent shall be reasonable rent to be fixed by the Amildar.18.(2) is so worded that in terms it cannot be said to be a proviso to(1) and in substance it is not such a proviso nor is it an exception to(1). Having prescribed the maximum beyond which agricultural rent cannot go under S. 6 (1) the legislature has permitted 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. This provision is an independent provision and so the twomust be read as different, independent, thoughprovisions of the Statute. It would, we think, be erroneous to treat(2) as a proviso or exception to(1) deals with and applies to all leases individually and prescribes a ceiling in that behalf,(2) is intended to prescribe a maximum by reference to different areas in the State. The object of both the provisions is no doubt similar 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.19. The argument that by issuing the notification the Government has purported to amend S. 6 (1) is, in our opinion, not well founded. As we have already seen, S. 6 (1) is intended to apply to all the agricultural leases until a notification is issued under S. 6 (2) in respect of the areas where the leased lands may be situated. It is not suggested that under S. 6 (2) 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 appellants argument it would be competent to the Government to fix lower rents, sayIf instead of prescribing the lower ratesafter 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 S. 6 (2) or with S. 6 (1) either. The scheme of S. 6 does not seem to postulate that after the notifications are issued under S. 6 (2) some area must inevitably be left to be covered by S. 6 (1). Such an assumption would be inconsistent with the object underlying the said provision itself. What S. 6 (1) 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 S. 6 (2) might cover all the areas in the State and that may mean that the general ceiling prescribed by S. 6 (1) may not apply to any land which is covered by the notification.If S. 6 (1) is not a general rule and S. 6 (2) 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 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.