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

1. The appellant was the Jagirdar of Thikana Rakhi in the Marwar (Jodhpur) area of the State of Rajasthan. Within Thikana Rakhi was the village of Khakharki. The appellant 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.2. There was an Act in force in the Marwar area called the Marwar Tenancy Act of 1949, hereafter referred 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 That Act now stands repealed but we are concerned with a period when it was in force.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.3. On October 31, 1950, the appellant who had some difficulty in realising the rent from his tenants in village Khakharki, made an application under S. 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 S. 85 of the Tenancy Act which is set out below :Jaipur, February 22, 1951, No. F. 4(74) Rev./1/51.- 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 S. 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.By order ofHis Highness The Rajpramukh,H. D. UjwalSecretary to theGovernment 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 S. 85, the terms of which will be set out later, to have the rents due to him from the tenants of Khakharki 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 appellants application under S. 78 of the Tenancy Act was dismissed for reasons which it is not necessary for the purpose of this appeal to state.4. On March 29, 1951, the tenants filed an application in the Court of the Collector of Nagaur stating that the notice of the appellants application under S. 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. 38,587-3-0 was found due to the appellant from the tenants on account of rent, other charges and court fees. The Collector then sent the order to the Tahsildar of Merta for recovering that sum as arrears of land revenue.5. 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 S. 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 7, 1952.6. 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 S. 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 S. 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, 1953.7. Forty-three 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 S. 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 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.

Court's reasoning:
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.