Allowed

Thakur Kesari Singh v. the State of Rajasthan and Others.

Supreme Court19 Oct 19601960 INSC 180 · [1961] 2 S.C.R. 471960 INSC 180

Case brief

AI extract

What is this about?

Jagirdar sought recovery of rent from refusing tenants as arrears of land revenue under a notification issued under s. 85 of the Marwar Tenancy Act; orders were upheld ex parte and after rescission of the notification. The Supreme Court reversed the High Court's writ, holding the section survived the Revenue Courts Act, no notice was required, and subsequent rescission did not divest vested author

What did the court decide?

Appeal allowed with costs here and below; High Court order set aside.

What the court decided

Thakur Kesari Singh versus the State of Rajasthan and… — Landlord and Tenant | Supreme Court (1961)

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2 S.C.R. SUPREME COURT REPORTS 47

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The appeal must therefore be allowed and the order r960 - passed by the High Court set a.side. In the circum"ll b d Nathmal Tolaram stances o t f h e case, no use f u purpose 1 w1 e serve by remanding the case to the High Court. We superi:;endent accordingly direct that a. writ quashing the proceed- of Tam ings commenced by the Superintendent of Taxes, Dhubri, by his notice dated January 30, 1953, be Shah J. issued. The appellants will be entitled to their costs of the appeal.

A ppeaJ, al,lowed.

THAKUR KESARI SINGH

O&lober r9.

THE STATE OF RAJASTHAN AND OTHERS.

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(JAFER IMAM, A. K. SARKAR and RAGHUBAR DAYAL, JJ.)

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Landlord and Tenant-General refusal of payment of rentNotijication by Government-Application for recovery of rent as arrears of land revenue-Rescission of notijication-V alidity of proceeding-Procedure-Marwar Tenancy Act, z949 (XXXIX of z949), s. 85-Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, z95r (I of z95rJ, s. 2.

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The Marwar Tenancy Act, r949, now repealed but which was in force in the State of Jodhpur at the relevant period, by s. 85 authorised the Government in case of any general refusal by tenants to pay rent to declare by notification that such rents might be recovered as arrears of land revenue. A notification having been issued by the Government of Rajasthan under that section the appellant, a jagirdar, applied to the Collector thereunder for the recovery of rents due to · him from his tenants. The tenants also applied to the Collector stating that notice of the said application should be served on them and they should be given a hearing as required by the rule framed uncer the Rajasthan Revenue Courts (Procedure arid Jurisdiction) Act, r95r. The Collector rejected the tenants' application and passed an order directing the recovery of the sum found to be due to: the appellant as arrears of land revenue. The Additional Commissioner on appeal and the Board of Revenue in revision upheld the Collector's order. But before the Board passed its order the

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[1961]

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48 SUPREME COURT REPORTS

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Ig6o

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Ig6o Government rescinded the notification. The High Court on an application under Art. 226 of the Constitution held that although Thakur Kesari s. 85 of the Tenancy Act had not been repealed by the Revenue Singh Courts Act, 1951, the rules framed under that section had been, v. and the non-compliance with the rules framed under the latter The Slate of Act which should have been followed, was an error on the face Rajas than of the record and quashed the orders directing that since the & Others notification under s. 85 of the Tenancy Act had been rescinded no further action thereunder should be taken by the Collector.

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Held, that there could be no doubt thats. 2 of the Rajasthan Revenue Courts (Proceduret.md Jurisdiction) Act, 1951, had not repealed s. 85 of the Marwar Tenancy Act, 1949, and that the former Act contemplated its continuance, unfettered by the bar of. limitation, and subject to this modification that an application under the section was no longer to be made to the Deputy commissioner but to the Collector.

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Section 85 of the Tenancy Act clearly contemplated that an application thereunder shall be heard and determined in the absence of the tenant. The right given by the section was a summary one and the application must be heard ex parte. It was not, therefore, necessary to serve any notice on the tenants.

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It would not be correct to hold that the procedure of a contested proceeding as prescribed by Ch. II of the Rules framed under the Revenue Courts (Procedure and Jurisdiction) Act, 1951, could apply to the application for to apply them would be to wholly defeat its object. · ·

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Once a notification under the section bad been issued and an application duly made, subsequent rescission of the notification could not divest the appropriate authority of the power already vested in him to dispose of the application.

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Crown v. Vaveli, A.LR. r949 Lah. r91, held inapplicable. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 277 of 1955.

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Appeal from the judgment and order dated April 27, 1954, of the Raja.sthan High Court in Civil Mis. Writ No. 1/1954.

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N. 0. Ohatterjee, Buresh Agarwal and Ganpat Rai, for the appellant.

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R. K. Rastogi and K. L. Mehta, for the respondents. 1960. October 19. The Judgment of the Court was delivered by

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Imam].

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IMAM J.-The appellant was the Jagirda.r of Thikana Rakhi in the Marwar (Jodhpur) area. of the State of Ra.ja.sthan. Within Thika.na. Ra.khi was the

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2 s.c.R. SUPREME COURT REPORTS 49

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village of Kha.kha.rki. He had a. number of tenants under him in the village who pa.id rent on the basis of a certain she.re of the produce of the land held.

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There was a.n Act in force in the Ma.rwar area. called the Marwa.r Tenancy Act of 1949, hereafter referred to as the Tenancy Act, which had been passed by His Highness the Maha.raja of Jodhpur befofe the integration of the State of Jodhpur in the State of Rajastha.n. 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 estima_te or a.ppraisement 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 !!-pplication shall have the effect of a decree for arrears of rent.

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Thakur K esari Singh v.

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The Stale of Rajasthan & Others

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Imam].

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On October 31, 1950, the appellant who had some difficulty in realising the rent froin 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 Raja.sthan issued a Notification 1,mder s. 85 of the Tenancy Act which is set out below:

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Jaipur, February 22, 1951. No. F. 4(74) Rev.fl/ 51.-Whereas it has been ma.de 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 ;

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Now, ther~fore, 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.

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50 SUPREME COURT REPORTS [1961]

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r960 by order of His Highness the Rajpramukh, Thakur Kesari Singh H. D. Ujwal v. Secretary to the ' The State of Government of Rajasthan, Rajasthan 6- Others Revenue Department. This Notification was published in the Official Gazette Imam J. 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 1950-5f from those tenants of Khakharki who had refused to· pay them. Subsequently, on · March 26, 1951, the appellant's application under s. 78 of the Tenancy Aot was dismissed for reasons which it is not nece1111ary for the purpose of this appeal to state.

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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 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

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Collector then sent the -order to the Ta.hsilda.r of Merta. for recovering that sum a.s arrears of land reven!}e.

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The tenants filed a.n appeal before the Additional Commissioner, Jodhpur, challenging the validity ohhe order of the Collector dated April 5, 1951. Thi!f appeal was dismissed by the Additional Commissio.ner 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 a.gain dismissed their appeal on July 7, 1952.

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Thakur Kesari Singh v~_

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Thi State of Rajaslhan .S. Others

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Imam}.

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The tenants moved the Board of Revenue in revi.sion against the order of July 7, 1952, also-. Before the Boa.rd 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 wa.s that in view of the rescission of the Notification, no fQtther proceedings could be taken under s. 85 of the Tenancy Act for recovery of rent as arrears of land revenue. The Boa.rd of Revenue rejected this and all other contentions raised on behalf of the tenants and dismissed the revision case on September 29, 1953.

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Fortythree of the tenants filed a. petition in the High Court for Ra.jastha.n for a. writ of certiorari to qua.sh the orders of the Collector, the Additional Commissioner and the Revenue Board, earlier mtintioned. 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 a.s arrears of land revenue could be ta.ken by the Collector ofNa.gaur. The High Court however granted a certificate that the case was a fit one for appeal

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to the Supreme Court. Hence the present appeal. The rent found due has not been realised yet by the Thakur /(esari Singh Tahsildar presumably, in view of the pending prov. ceedings. The respondents to the appeal a.re the State The Statd of of Ra.ja.stha.n and various Revenue Officers of that Rajasthan State and the tenants. This appeal has been con0- Others tested only by some of the tenants and the other Imam]. respondents have not appeared before us. have not appeared before us. not appeared before us. appeared before us.

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Imam]. respondents have not appeared before us. have not appeared before us. not appeared before us. appeared before us. Section 85 of the Tenancy Act is in these terms: S. 85.-" (1) In case of any genera.I 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.

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(2) In any local area to which a. notification ma.de under sub.sec. (1) applies a landlord or any other person to whom e.n 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 a.mount with costs and interest as an arrear of land revenue.

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(3) The Deputy Commissioner shall not be ma.de a defendant in any suit in respect of an a.mount for the recovery of which an order has been passed under this section.

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( 4) Nothing herein contained and no order passed under this section shall debar:-

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(a) a landlord from recovering by suit or application any a.mount due to him which has not been recovered under this section ;

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(b) a person from whom any amount has been recovered under this section, in excess of the a.mount due from him, from recovering such excess by suit against the landlord or other person on whose a pplica.tion the arrear was realised.

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The first point raised on behalf of the respondents in the High Court was that s. 85 of the Tenancy Act

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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.

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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 e(\Actment of a comprehensive law for the whole of Raja.stha.n 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 pa.rt of the State of Rajasthan, till that Act was .repealed as herein . before stated. Section 2 of the Act provides, " On and from the coming into force of this Act all existing laws shall, in so fa.r as they relate to matters dealt with in this Act, be repealed". It is said that the effect of s. 2 of the Revenue Courts Act is to repeal s. 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, 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

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Thakur Kesari Singh v. The State of Rajaslhan cf.. Others

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Imam].

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54 SUPREME COURT REPORTS (1961]

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r960 in the Revenue Courts Act dealing with the subs- Thakur Kesari tantive right created by s. 85 of the Tenancy Act. Singh There is, therefore, no foundation for the argument v. that that section has been repealed by s. 2 of the Th• Stal• of Revenue Courts Act.

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Rajasthan A reference to schedule 1 to Revenue Courts Act .S. Others which gives a list of suits and applications triable by Imam]. a. Revenue Court and prescribes the periods of Jim itation applicable to and court fees payable on them can usefully be made now. The schlldule 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 a.s land revenue on the general refusal to pay rent ". In regard to the period of limitl!!tion for such applications, 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 ss. 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 a.n application is competent. Since the Revenue Courts Act· itself does not authorise such a.n application, it must be so competent under other existing laws, reference to which has been ma.de in the preamble and s. 2 of the Act. One of such laws is s. 85 of the Tenancy Act. Therefore it seems to us that the Revenue Courts Aqt, instead of repealing s. 85 of the Tenancy Act contemplates its continua.nee in force.

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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 ss. 118 to 144. Section 118 says that all suits and applications of the nature specified in the second schedule to

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the Act shall be heard and determined by a. Revenue Court. Section 124 states that a.II suits and other proceedings especified in the second schedule shall be instituted within the time prescribed for them in that schedule. Section 129 provide~ 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. Torning to second schedule, we find that group Eis concerned with applications triable by a Deputy Commissioner. Item 4 of this group deals with applications under s. 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.

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Thakur Ktsari Singh v. The State of Rajasthan 6- Others Imam].

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Now the Revenue Courts Act provides bys. 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 s. 4(xvi) of this Act as including among others, the Boa.rd 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 s. 85 of the Tenancy Act, and provides that there shall be no period of limitation for ma.king such an application, and that it shall be made to a Collector,. Therefore, for an application under s. 85 of the Tenancy Act the Revenue Courts Act specifies a new revenue court, namely, the Collector, in the place of tµe Deputy Commissioner mentioned in s. 85 of the Tenancy Act and also makes it free of the bar df limitation. It follows that ss. 7 and 9 of the Revenue Courts Act deal with matters dealt with in ss. 118, 124 and 129 of the Tenancy Act. By virtue of s. 2 of the Revenue Courts Act, ss. ll8, 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

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the Revenue Courts Act, there is no period of limita- Thakur Kesari tion prescribed for ma.king a.n a.pplica.tion under s. 85 Singh of the Tenancy Act and tha.t a.pplica.tion has to be v. made to a. Collector. The a.pplica.tion under s. 85 by The State of the a.ppella.nt in the present case ha.d been ma.de to Rajasthan the Collector, as a.t the date when it was made the & Others Revenue Courts Act wa.s in force. The repeal of Imam]. es. ll8, 124 a.nd 129 of the Tenancy Act does not however affect s. 85 of this Act except a.s herein before stated.

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Next it is ea.id that even though s. 85 of the Tenancy Act may not have been repealed, the procedure to be followed in respect of a.n a.pplica.tion ma.de under it is in view of r. 114 in Ch. IV of the rules framed under the · Revenue Courts Act is that la.id down in Ch. II of these rules and that that procedure wa.s not followed. This, it is contended, constitutes a.n error apparent on the face of the orders passed by the revenue authorities in this case, and renders them liable to be set a.side.

¶97

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 34 provides that the Deputy Commissioner she.II check the lists by examining the Pa.twari 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 Ta.hsildar who she.II then proceed to realise the amount stated in the list by the Deputy Commissioner to be due to the landlord.

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1t. is said on behalf of the tenants that the rules under s. 85 lay down the procedure for the disposal of an a.pplica.tion ma.de under that section, a.nd that these rules ha.ve been repealed by s. 2 of the Revenue Ccmrts Act, read with r. ll4 of the rules framed under that Act. It is contended that the revenue authorities committed an error in following the rules framed

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under s. 85 of the Tenancy Act and not those prescribed in Ch. II of the rules made under the Revenue Courts Act.

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Now Ch. IV of the rules framed under the Revenue Cour~s 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 s. 7 of the Revenue Courts Act, an application under s. 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 therefore 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. II of the rules framed under the Revenue Courts Act.

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Thakur Kesari Singh v.

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The Stale of Rajasthan & Others

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Imam ].

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It is enough for our purposes to sa.y 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.

¶108

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 a.side the orders of the revenue authorities challenged by.the tenants.

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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 ma.de 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 8

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58 SUPREME COURT REPORTS [1961]

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the Deputy Commissioner to check the list, a. duty Thakur Ke!a1·i which under the section itself he he.a to perform, e.nd Singh e.lso makes it necessary for him to examine the pe.tv. we.ri for the purpose. The rules do not indicate how The State o/ the e.pplice.tion is to be heard, the.t is, whether ex Rajasthan pa.rte or on notice. ©- Others · It seems clear to us tbe.t s. 85 itself requires e.n Imam]. e.pplice.tion me.de under it to be bee.rd ex pa.rte. First the section does not say tbe.t e. notice of the e.pplice.tion has to be served on the tenant concerned. Secondly, e.n a.pplica.tion under the section can be me.de only after the notifica.tion prescribed he.s been issued. Tba.t notification decides the.t there he.s been e. genera.I refuse.I by tenants to pe.y rent. Therefore the section could not he.ve contemplated tbe.t the question whether a. tenant had so refused would be bee.rd age.in on notice to him. Thirdly, in proceedings for recovery of land revenue, the persons liable a.re not bee.rd and therefore when rent is directed to be recovered as le.nd ·revenue, it is not contemplated the.t the tenants should be heard. It is of the essence of such proceedings that th1!re shall be a. summary and quick decision. If the procedure la.id down in Ch. II of the roles framed under the Revenue Courts Act he.a 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 e.n application for realisation of rent giving rise to e. 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 e. suit in a revenue court for the recovery of rent both of which have to be bee.rd e.s contested proceedings in the presence of the other side. Fourthly, cl. (b) of sub.sec. (4) of 9. 85 of the Tenancy Act pie.inly indicates that the proceeding on e.n application under that section is to be ex pa.rte. That cle.uAe contemplates a. suit age.inst e. landlord by e. tenant from whom e.n a.moon~ in excess of what is legally due has been recovered under the section. Now the a.mount recovered cannot of course exceed the a.mount

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2 S.C.R. SUPREME COURT REPORTS

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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 a.s to the a.mount due. It would be inconceivable that such would be contemplated under the section if the a.mount ha.s 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 cJf. the ea.me question, between the same parties should be provided for.

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Thakur Kesari Singh v.

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Th• Stale of Rajaslllan cf>. Oth•rs

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Imam].

¶123

It seems, therefore, quite clear to us that s. 85 of the Tenancy Act contemplates that the application made under it shall be heard a.nd determined in the absence ofthe tenant. Indeed this is not really questioned, for, the cont~ntion on behalf of the tenants is that the procedure followed is wrong, not because that is not the procedure la.id down in the Tenancy Act, but because the Revenue Courts Act and the rules made thereunder ba.d replaced the ex pa.rte procedure provided by the Tenancy Act, by the procedure of a contested proceeding la.id down in Ch. II of the rules framed under the Revenue Courts Act a.nd this is .the procedure which should have been followed.

¶124

Now, once it is found, as we have found, that s. 85 of the Tenancy Act bas not been repealed by the Revenue Courts Act except to the extent that an application under it ha.s 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 pa.rte.

¶125

Rule 114 of the rules framed under the Revenue Courts Act earlier referred to ca.n be of no assistance to the tenants in the present context. It does not in terms purport to repeals. 85 of the Tenancy Aoi. We ha.-ve earlier said the Revenue Courts Act contempla~ ed the continuance in force of s. 85 of the Tenancy ~ Act, and hence no rule framed under the former Aol

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could intend by implication to repeal that section. Rule 114 may apply to applications under other provi- Thakur Kesari sions of existing laws which are not required by them Singh v. to be heard ex parte. · Thi stat• of In our view, for the reasons aforesaid, the appli- Rajasthan cation under that section was properly and correctly & Others heard and determined without notice to the tenants. Such hearing does not disclose any error at all. Imam]. Then it is said that &fter 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. Subsection (I) of that section provides for the issue of a notification declaring that certain rent!! 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 (I) 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.

¶129

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 (I) applies" a.re concerned with the area. and not with the time during which the notification remains iu force. That follow!!_ 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 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

¶130

¶131

2 S.C.R. SUPREME COURT REPORTS

¶132

¶133

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 notifies.. tion in point to time, there would have been no need to specify a period of limitation in schedule II. We have also earlier pointed out t)lat 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 theoo is no period of limitation for a.n 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 ma.de under sub-section (1) applies" indicate that the Deputy Commissioner's power to a.ct when a.n application under that section is ma.de, exists only so long as the notification remains in force.

¶134

x960

¶135

Thakur K esari Singh

¶136

¶137

The St.ate of¹ Rajas than & Olh61s

¶138

Imam].

¶139

It also seems to us that the Deputy Commissioner's power to a.ct arises on a.n application having been duly ma.de under sub-sec. (2) of s. 85. Even if that application had to be ma.de 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 a.ct on the application would also depend on the notifica.tioq remaining in force. It may be stated here that in the present case the application had been ma.de 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 ma.de under that section at a. time the notification was in force a.qd 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 ma.de 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.

¶140

Reliance is . placed by the learned a.d vocate for the respondents on Crown v. Havel,i. (1). In that case it (r) A.I.R. 1949 Lah. 191•

¶141

62 SUPREME COURT REPORTS [1961]

¶142

was held that further proceedings under a temporary 1 hakur Kesari Act could not be continued after it had expired. It Singh is contended that s. 85 of the Tenancy Act was really v. a temporary Act for it was brought into operation The State of only upon a notification which notification was clearly Rajas than not intended to be of permanent operation. We are & Others unable to accept this view. The fact, if this be so, Imam]. 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.

¶143

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 perl!litting suits for recovery of rents which have not been recovered under the section, indicates that after the rescission of the Notification, further pro- · ceedings 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 ma.de, 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 oontemplated by cl. (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 <Juring its currency or later, chooses to proceed by ·way of a suit under the other provisions of the Tenancy Act.

¶144

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 62 had paid ren_t and the remaining 43, who are the respondents in t4is appeal, were willing to pay but could not pay as the appellant was asking

¶145

.2 S.C.R. SUPREME COURT REPORTS 63

¶146

¶147

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 refu&al to pay rent within the meaning of s. 85 of the. Tenancy Act. Hence, it is said that the Notification was vltra vires the section &t)d 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 s. 85 and decide its validity or not, this contention of the tenants raises a question of fact as to how many tenants bad refused to pay rent. It also raises a question of interpret&. tion of the words "general refusal to pay " in s. 85. None of these questions was raised at any earlier stage. We are therefore, not inclined to allow the tenants to raise them now.

¶148

T hallwr K esari Singh v. The State of Rajasthan <So Others

¶149

Imam .J.

¶150

In the result we allow the appeal with costs here· and below.

¶151

Appeal allowed.

¶152

P. C. JOSHI AND ANOTHER

¶153

"· THE STATE OF UTTAR PRADESH

¶154

Octob1r a5.

¶155

(S. K. D.&s and J. C. Sn:e:, JJ.)

¶156

-lo

¶157

-I

¶158

Criminal Trial-Defamation of tublic seroam in respect of public function-:-Complaint before Sessions J!"ge by Public Prosecutor-If reqrnred to be· signed by the public servant also-Code of Criminal Procedure, x898 (V of x898); ss. x98 and x98-B .._

¶159

The Public Prosecutor, Kanpur, filed a complaint in the Cour.t ot'Session, Kanpur, charging the appellants with having published a news item which was false and defamatory of the Chief Minister of Uttar Pradesh. The complaint complied with the requirements of s. x98-B, Code of rimtnal Procedure. 1:he · appellants conended that the complamt should have co~phed with the requirements of s. x98 of the Code also and, as it was .

Thakur Kesari Singh v. the State of Rajasthan and Others.

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Thakur Kesari Singh v. the State of Rajasthan and Others.

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