Chowdhury Radhashyam Das and Another vs Nidhi Sahu

Brough, J.—This application arises out of a complaint made by Nidhi Sahu, a tenant of certain landa in village Bhingarpur in the District of Pari, u/s 85, Orissa Tennancy Act, against his landlord Chaudhuri Radhashyam Das and Sibaram Mahanti his tahsildar. The complaint came before the Sub-divisional Magistrate of Cuttack Sadr who found both the accused liable u/s 85, Orissa Tenancy Act, and directed them to pay a fine of Rs. 100 or in default to undergo two months'' simple imprisonment. An appeal was made to the Sessions Court at Cuttack, but the Sessions Judge rejected the appeal as incompetent. The matter now comes before the High Court in revision.

The plaintiff and two other cosharers are tenants of a holding in village Bhingarpur. There apparently has been a private partition between them which has admittedly not been recognized by the landlord, although it is said, no doubt, correctly that the complainant is the man in occupation of the lands in respect of which this dispute arises and has always himself paid the rent. On 11th November 1939, he paid the rent for the land in question amounting to Rs. 3-9-3 for the years 1316 and 1347 F., and obtained a receipt. Later on, 16th May 1941, Sibaram Mahanti, the tahsildar, demanded rent for the years 1346 and 1347 F., again which was paid amounting to Rs. 3-12-3 including a small sum for interest and another official receipt was granted. On 11th November 1941, Nidhi filed a petition u/s 85, Orissa Tenancy Act, which provides that if a landlord or his agent levies on a tenant anything in excess of the rent lawfully payable, the Collector of the district may, if he is so satisfied, by order impose on the landlord such penalty not exceeding Rs. 500 as he may think fit and a portion of the penalty may be awarded to the tenant as compensation and a proceeding under the Section shall be instituted on a complaint made by the tenant. The Section also provides that any fine imposed under the Section may be recovered in the manner provided by any law for the time being in force for the recovery of a public demand.

The facts above stated are admitted on behalf of the two accused; but the accused Chaudhuri Radhashyam Das says that he knew nothing about the payments until after Suniya (Oriya new year) year 1349. His supervisor was then auditing the tahsildar''s accounts and found that the rent for the years 1346 and 1347 had been realised twice and that thereupon he had caused the overpaid amount to be adjusted by serving a notice dated 30th October 1941, on Isar Sahu, one of the cosharers of the holding and giving a receipt to him dated 7th November 1941, for Rs. 3-7-6 as rent of the holding for the years 1348 and 1349 and another receipt of the same date for Rs. 0-4-9 towards rent of another holding belonging to the same tenants.

The plaintiff has attempted to show that in fact the adjustment was not made until after the issue, of the petition of complaint; but, in my judgment, he has not succeeded in making out that case. The learned Magistrate substantially decided in favour of the complainant on the ground that the landlord is not authorized to adjust the excess amount of rent received from the tenant according to his convenience with the consent of another cosharer who has not paid the rent. This, in my judgment, is based on a misapprehension of the legal position. The landlord had refused as landlords generally do to recognize the private partition between the cosharer tenants in order that he might preserve unimpaired the joint and several liability of the three cosharers for the whole of the rent of the whole of the holding. The effect of the adjustment made by the landlord was to exonerate Nidhi from the liability of the payment of rent for the Fasli years 1348 and 1349, and, therefore, the utmost that he has suffered is that his action resulted in his paying the rent for the Fasli year 1349 before it was due.

The learned Magistrate also took the view that Section 85 contained no provision exonerating the landlord or his agent in the case of over-collections by mistake. That is perfectly true, but, it should be obvious to any one that the purpose of the Section was to prevent illegal exactions and not to penalise landlord''s agents for accidental mistakes. The most significant feature in this case, to my mind, is the fact that proper receipts in the normal form were granted for both payments. It is obvious that if the rent had been extorted twice with dishonest intention the normal receipts would not have been given. Nidhi did attempt to establish and to some extent succeeded in satisfying the learned Magistrate that restitution had not been made until after the institution of the complaint and that the accounts showing the restitution were all an elaborate fake. I am not satisfied to this, but it is clear that restitution has been made. I am also satisfied that the double collection was due to an honest error and that the case is not one in which any penalty should have been imposed. When the matter came up before the learned Sessions Judge, he observed correctly that the Magistrate''s jurisdiction was given him by Section 85 and did not constitute a new offence under the Indian Penal Code punishable with a fine or imprisonment in default and that his order imposing an imprisonment in default of payment was clearly ultra vires, but he held that he had no jurisdiction to entertain any appeal. Clearly, however, this Court has full jurisdiction to interfere in revision, and in my judgment the proper course is to allow this application and quash the order of the learned Magistrate. The penalty, if paid, will be refunded.

Manohar Lall, J.

I agree that it is impossible to sustain the charge u/s 85, Orissa Tenancy Act, on the facts established in this case. This is not a case where on one single double payment it can reasonably be held that the landlord or his agent has levied from the plaintiff-tenant anything in money in excess of the rent which was lawfully payable. I feel some doubts as to whether if the proceeding was a proper proceeding u/s 85. Orissa Tenancy Act, the High Court would have any jurisdiction to entertain a revision application. Section 204 is the only Section which provides for appeals from orders or decrees passed by the officers acting under the Orissa Tenancy Act.

But the parties agreed before us that they would prefer that the evidence in this case may be examined by us and final orders passed in order to avoid a further harassment to the parties. Accordingly, we directed that the case should stand over so that the evidence in the case might be typed in order to enable us to examine the propriety and the legality of the proceedings on facts.

It must also be observed that it can be well argued that Mr. Musaheb Khan proceeded entirely as a criminal Court as the Sub-divisional Magistrate Sadr, and, therefore, the jurisdiction of the learned Sessions Judge was attracted as a criminal Court so as to give full jurisdiction to us to interfere on facts as well as on law under Sections 435 and 439, Criminal P.C.

I therefore agree that the order of the Sub-divisional Magistrate should be set aside.