S. 85 of the Tenancy Act had not been repealed by the Revenue Courts Act except to the extent that an application under it had now to be made to a Collector and not to a Deputy Commissioner as provided in it, the whole of it had to be given effect to.

Headnote:
TENANCY ACT - S. 85 - PROCEDURE FOR RECOVERY OF RENT AS ARREARS OF LAND REVENUE - NOT REPEALED BY REVENUE COURTS ACT - PROCEDURE LAID DOWN IN S. 85 TO BE FOLLOWED - NOTIFICATION UNDER S. 85 - RESCISSION - DOES NOT AFFECT PROCEEDINGS ALREADY COMMENCED.
Fact of the Case:

The appellant, the Jagirdar of Thikana Rakhi in the Marwar area of Rajasthan, had difficulty in realizing rent from his tenants in village Khakharki. He applied to the Tahsildar under S. 78 of the Marwar Tenancy Act for making a division of the produce. Before the application was disposed of, the Government of Rajasthan issued a Notification under S. 85 of the Tenancy Act declaring that rents may be recovered as arrears of land revenue. The appellant filed an application under S. 85 in the Court of the Collector for recovery of rent as arrears of land revenue. The tenants filed an application stating that notice of the appellant's application should be served on them and they should be heard on that application. The Collector rejected the application. 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 tenants filed an appeal before the Additional Commissioner, Jodhpur, challenging the validity of the order of the Collector. The appeal was dismissed. The tenants went in revision to the Board of Revenue Rajasthan. The Board of Revenue 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. 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. 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. 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 SC.
Finding of the Court:

The Supreme Court held that S. 85 of the Tenancy Act had not been repealed by the Revenue Courts Act except to the extent that an application under it had now to be made to a Collector and not to a Deputy Commissioner as provided in it, the whole of it had to be given effect to. The procedure contemplated by the section is an integral part of the right granted by it, and one cannot be separated from the other. The application made under it has, therefore, still to be heard and determined ex parte. The Supreme Court also held that 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.
Issues: 1. Whether S. 85 of the Tenancy Act had been repealed by the Revenue Courts Act? 2. Whether the procedure laid down in Ch. II of the rules framed under the Revenue Courts Act applied and should have been followed? 3. Whether the application under S. 85 of the Tenancy Act was properly and correctly heard and determined without notice to the tenants? 4. Whether after the rescission of the Notification dated February 22, 1951, no further proceeding could be taken under S. 85 of the Tenancy Act?
Ratio Decidendi: 1. S. 85 of the Tenancy Act had not been repealed by the Revenue Courts Act except to the extent that an application under it had now to be made to a Collector and not to a Deputy Commissioner as provided in it, the whole of it had to be given effect to. 2. The procedure laid down in Ch. II of the rules framed under the Revenue Courts Act did not apply and should not have been followed as S. 85 of the Tenancy Act contemplates that the application made under it shall be heard and determined in the absence of the tenant. 3. The application under S. 85 of the Tenancy Act was properly and correctly heard and determined without notice to the tenants as the procedure contemplated by the section is an integral part of the right granted by it, and one cannot be separated from the other. 4. 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.
Final Decision: The Supreme Court allowed the appeal with costs here and below.

Judgment

IMAM, J. : The appellant was the Jagirdar of Thikana Rakhi in the Marwar (Jodhpur) area of the State of Rajasthan. Within Thikana Rakhi was the 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 of

His Highness The Rajpramukh,

H. D. Ujwal

Secretary to the

Government of Rajasthan,

Revenue Department.

This Notification was published in the Official Gazette on March 3, 1951, and one of the villages mentioned in the Schedule to it, was Khakharki. In view of the Notification, the appellant became entitled under 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 appellant s 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 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 Court s 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 f

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