Patna High Court
Awadh Bihar Prasad And Ors. vs Ramji Mahton And Ors. on 9 January, 1951
Equivalent citations: AIR1951PAT56, AIR 1951 PATNA 56, ILR 30 PAT 264
JUDGMENT Lakshmikanta Jha, C.J.
1. These three appeals by the pltfs. are under Clause 10, Letters Patent, from a decision of a Single Judge of this Ct. modifying a decision of the Subordinate Judge who upheld the findings of the trial Ct. & affirmed the decree made in favour of the pltfs.
2. The following pedigree shows that one Dodraj had two sons, Lekha alias Budhan, & Sobhan alias Biku; Lekha had four sons, Umrao, Saudagar, Dip Narain & Maulavi, & Biku had two sons, Shyam & Kailas:
DODRAJ |
----------------------------------------------------
| |
Lekha alias Sobhan
Budhan alias Biku.
------------------------------- ----------
| | | | | |
Umrao Sauda- Dip Mau Shyam Kailash
ar Narain lavi
Pltfs. 1 to 3 are sons of Saudagar & Dip Narain & Maulavi are pltfs. 4 & 5 respectively. Other members of the family are pro forma defts. in these suits.
3. It appears from the record of rights that the land in respect of which these three suits have been instituted constituted eleven batai holdings of the tenants defts. under the pltfs. & the pro forma defts. In December 1922, an arrangement was come to between the landlords & the different tenants whereby the batai holdings were converted into naqdi holdings, & later on the three groups of defts. executed three kabuliats under which the eleven holdings were amalgamated into three new holdings for which they agreed to pay money rent. On the basis of these three kabuliats three rent suits were instituted against the three groups of tenants. In these suits the defts. plea was that the original--eleven holdings still existed & that there had been no amalgamation. The litigation came up to the H. C. in second appeals & a compromise was entered into under which, on the defts. making certain payments to the landlords by 29-9-1928, the landlords were in their turn to treat the original batai holdings which existed before December, 1922, as still existing. There is no evidence to show that any payment was made by the tenants under the terms of the compromise. In 1938, however, the defts. made eleven applns. under Section 112, Bihar Tenancy Act, for the reduction of their rents on the basis that there were eleven (& not three) naqdi holdings. In these applns. only Biku & Umrao were made parties & the pltfs. were not impleaded. A reduction of four annas in the rupee was allowed by the revenue officer. Subsequently, he revised his own order under Section 104E (2) and allowed a reduction of six annas in the rupee, that is, 37 1/2 per cent, reduction in the rents of all the holdings, without giving any notice to the pltfs.
4. The pltfs. have instituted these suits for a declaration that the order of the revenue officer reducing the rent of the holdings in dispute is void & without jurisdiction. They have also claimed arrears of rent for the year 1347 to 1350 Fasli in respect of each of the three holdings at the original jama. Their case, in short, is that there are only three holdings (and not eleven), that they are cosharer landlords having separate collections & that they realise rents separately according to their shares. The defts. admitted by their written statements the pltfs.' case of separate collection & separate realisation of rents from them; but their case was that the suits were in respect of more than one holding & therefore, bad for multifariousness. They further alleged that the jama of each of the holdings had been reduced under Section 112, Bihar Tenancy Act, & the same was binding upon the pltfs.
5. The learned Munsif held that payment was not made in accordance with the compromise & there were only three naqdi holdings, & this finding was not challenged in appeal. He also held that the order of the revenue officer is without jurisdiction & not binding on the pltfs. & has summed up his finding thus :
"In any case, the order of reduction has to be held without jurisdiction for two reasons. In the first instance, the holdings were misdeseribed in the applications for reduction. Secondly, none of the pltfs. were impleaded as parties in the reduction proceedings. As such, no notice could have been issued upon them. The defts. have not shown that in spite of the pltfs not being parties notices have been served upon them."
On appeal by the defts. the finding of the learned Munsif that the pltfs. were not parties to the proceedings under Section 112 was not challenged but it was contended, for the first time, that the present pltfs. were effectively represented by Biku & Umrao. This contention of the defts. was not accepted by the learned Subordinate Judge. In repelling the defts.' contention he held that "there is no evidence on the record to justify this assertion & I have no doubt whatever that in the absence of the three sons of Budhan the Rent Reduction Officer had no jurisdiction to entertain the applns. & reduce the rent."
He also found that the applns. for reduction of rent were not with respect to the holdings of the defts. In this view of the matter also he held that the revenue officer had no jurisdiction & his order reducing rent of "non-existent holdings" must be held to be ultra vires.
6. When the matter came up in second appeal here, Shearer J. modified the decrees & held that "the defts. are, however, in possession, of the land set out in their applns. & the mere circumstance that an incorrect description was given of the holdings in which it was comprised could not affect the jurisdiction of the Settlement Officer to reduce the rent." The other ground on which he modified the decision of the Cts. below was that, special notices having been served upon Umrao & Biku, the pltfs. as cosharer landlords must also be bound. He has held that "the onus was on the pltfs. not merely to show by producing the record of the Settlement Officer that a notice was not issued on them, but also to show that they were entitled to notice, & that this onus was discharged."
In the result, he allowed the appeals & gave the pltfs. decrees for rent & interest at the reduced rate of rent.
7. The points for our consideration are : (1) whether the order of the Settlement Officer reducing the rent under Section 112, Bihar Tenancy Act, without special notice to the pltfs. is a nullity & (2) whether the Settlement Officer had jurisdiction to reduce the rent in view of the fact that there were eleven applns., in respect of three occupancy holdings. On the view that I take with respect to the first point, in is not necessary to decide the second question.
8. On an anxious consideration of the points raised, I do not agree with the view taken by the learned Judge of this Ct. that, although the pltfs. were not parties to the applns. made by the defts. under Section 112, Bihar Tenancy Act, the order of the Settlement Officer is binding on them.
9. By Notfn. No. 2814 III-34-R, dated 19-6-1937, as amended by Notfn. No. 3536-S-53-R, dated 14-8-1937, the Govt. of Bihar being satisfied that in the interest of the local welfare it was necessary to exercise the powers conferred on it by Section 112, Bihar Tenancy Act, invested certain revenue officers in 'the district of Patna with power (a) to settle rents, & (b) when settling rents, to reduce rents if, in their opinion, the maintenance of the existing rents would on any ground be unfair or inequitable in the following class of cases, namely, cases of money rents of occupancy raiyats then payable or being paid which became payable or commenced to be paid on or after 1-1-1915, & on or before 31-12-1933. Thus the revenue officers were invested with powers to settle or to reduce rents in cases of money rents of occupancy raiyats only. In settling the rents the revenue officers had to follow under Section 112 (2a) the procedure provided by Sections 104 to 104J (both inclusive). Section 104D provides that in framing a table of rates under Section 104B, & in settling rents under Section 104C, the revenue officers shall be guided by such rules as the Provincial Govt. may make in this behalf. Section 104E lays down the procedure for preliminary publication & amendment of settlement rent-roll. The revenue officer at this stage may of his own motion or on, the appln. of any party aggrieved, at any time before a settlement rent-roll is submitted to the confirming authority under Section 104F, revise any rent entered therein; but the proviso lays down that no such entry shall be revised until reasonable notice has been given to the "parties concerned" to appear & be heard in the matter. Section 104F (2) gives power to the confirming authority to sanction the settlement rent-roll with or without amendment; but the proviso thereto lays down that no entry shall be amended, or omission supplied, until reasonable notice has been given to the "parties con-corned" to appear & be heard in the matter. Thus an examination of the different provisions of Part II of chap. X, Bihar Tenancy Act, shows that in settling fair & equitable rent or in reducing the rent of any holding it is obligatory on the revenue officers to give special notice to the parties concerned in the manner provided for in the rules made by the Govt. in this behalf. The Provincial. Govt. under Section 189, Bihar Tenancy Act, has power, by notification in the Bihar Gazette, to make rules for the purpose of carrying out the provisions of the Act. In exercise of such powers certain rules have been framed by the Provincial Govt. for service of notice, & it may be observed, that they have the force of law : see Secy, of State v. Nitya Singh, 21 Cal. 38 at pp. 49, 50 (F. B.). Rule 65 provides for general notification in the case of settlement of fair rents under Part II of chap. X, Bihar Tenancy Act. This will notify the date on which & the place at which the fair rents will be settled. Rule 73 prescribes the procedure to be followed by the Revenue Officer on the fixed date & by a proviso lays down that:
"when a revenue officer proposes to alter an existing rent, & the parties have not attended in compliance with the general notice prescribed in Rule 65 above, the revenue officer shall serve each person interested with a special notice, & the fair rent shall not be settled in the absence of such person until after due service of such special notice has been proved."
Under Section 78, Rules 65 to 77 (both inclusive) are made applicable to a settlement of rents under Section 112, Bihar Tenancy Act.
10. The pltfs. as already stated, set up a case of separate collection & separate realisation of rent from the defts. The defts. did not controvert this case of the pltfs., on the other hand, in each suit they admitted by their written statements that "the realisation & collection in respect of 2 annas kham, share in the possession of pltfs. 1 to 3 & in respect of 2 annas kham share in the possession of pltfs. 4 & in respect of 8 annas kham share in the possession of pltf. 5 are separate (from each group)."
Thus, in view of the clear admission by the defts. the pltfs. were not required to prove separate collection & separate realisation of rents from the defts. On the findings of the Cts. below the pltfs. were neither parties to the rent reduction proceedings, nor were they represented by Biku or Umrao, who alone were in the category of parties as landlords in the petitions filed by the defts. under Section 112 of the Act. The revenue officers are invested with powers under a special statute & exercise delegated authority. They must, therefore, act within the ambit assigned to them under the statute & exercise jurisdiction only in the manner provided for in Part II of chap. X of the Act & the rules made by the Provincial Govt. under Section 189 of the Act. They have accordingly no jurisdiction over parsons who are not in the category of parties before them, nor lover persons who being entitled to special notice as "parties interested" in the proceedings have not been served with such notice. Therefore, any rent settled by the revenue officer without notice to the pltfs. who are "parties concerned" & interested in objecting, cannot bind them, & the order made by the revenue officer may be ignored by them & treated as a nullity. It was observed by Willes, J., in Cooper v. Wandsworth Board of Works, (1863) 143 E. R. 414 at p. 418 : (14 C. B. N. S. 180.) that "a tribunal which is by law invested with power to affect the property of one of Her Majesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds; & that rule is of universal application and founded upon the plainest principles of justice."
The rule for special notice is mandatory & this rule, it must be observed, is founded on the principles of justice. In this respect there is, in my opinion, no difference between Section 112 & 112A of the Act. The underlying object of the rules in each case is, as observed by Mukharji J., in a case arising under Section 112A of the. Act Basdeonarain v. Karumahton, 26 Pat. 592 at p. 597 : (A. I. R. (35) 1948 Pat. 153), that "before the rent of a holding is proposed to be altered to the prejudice of any party it should not be done until that party had notice of the rent settlement proceedings."
Mookerjee, J., in Gora Chand v. Rakhal Chandra, 37 C. L. J. 473 : (A.I.R. (10) 1923 Cal. 364 held that an order made under Section 40 commuting rent without service of notice is ultra vires even though there is no express rule for notice on persons interested. The order "of the revenue officer reducing the rent under Section 112, in the absence of the pltfs. & without any notice to them, must, therefore, be held to be ultra vires & without jurisdiction, & the civil Ct. can ignore it. The onus, in my opinion, was on the defts. to prove service of special notice on the pltfs. The defts. as already stated, have admitted that the pltfs. are cosharer landlords having separate collection & separate realisation. They have, therefore, admitted that the pltfs. are persons immediately under whom they hold. The pltfs. were, in my opinion, as such landlords, entitled to special notice, even if it be assumed that they do not stand recorded in register D as proprietors. The defts. have pleaded the bar of service of special notice & asserted the affirmative. The pltfs. can, therefore, be defeated only if the defts., prove that special notice was served on them even though they were not party to the proceedings. In the absence of proof of the bar the pltfs. must succeed.
11. In the result, I would allow the appeals & restore the decrees of the Cts. below. The pltfs. will get their costs throughout.
Reuben, J.
12. I agree. In Jagdishwar Dayal v. Dwarka Singh, 12 Pat. 626 : (A. I. R. (20) 1933 P. C. 122), Lord Thankerton observed relative to the power of the Revenue Cts. under the Chota Nagpur Tenancy Act to sell tenures in execution of decrees for arrears of the rent thereof:
"Under Chap. XVI of the Act a statutory jurisdiction is conferred on the Revenue Cts. but that jurisdiction must be exercised within the statutory powers conferred. If then, as already stated, it is not competent to order a sale of the tenure under Section 208 unless the whole interests in the tenure are represented before the Ct. it is clear that the order for sale of the tenure in the present case was ultra vires of the Revenue Gt. & it follows that the sale was not 'made under this chapter' & was outside the jurisdiction of that Ct."
The principle is that a statutory power affecting rights of property must be exercised strictly in accordance with the provisions of the statute. Here, the requirements of the Bihar Tenancy Act & the statutory rules thereunder relating to special notices have not been observed. This is evident from a perusal of the order-sheet of the proceedings under Section 112, Bihar Tenancy Act. The general notice under Rule 65 was issued on 26-10-1937. On that date the rents were settled under Rule 73. It is not suggested that the pltfs. attended on that day in answer to the general notice & as rents were settled on that very day it is not Likely that the special notice required by the proviso was issued to them. Then 4-6-1938 was fixed for re-examination under Section 104E (2) of the equity of the rents entered in the rent roll. On that date there was no attendance on behalf of the landlords; nevertheless, orders were passed forth with making a further redaction of the rents. As the pltfs were not impleaded the notices for 4-6-1938 could not have been directed to them, & the order-sheet shows that no other notices were issued before the rents were further reduced.
13. The question of representation is a question partly of fact & partly of law. It was not raised in the Ct. of first instance. Hence the defts, cannot be allowed to raise it in appeal. Even if it is permitted to be raised, the plea must fail for the reasons given by my Lord the Chief Justice.