Dwarka Nath Sen vs Dhanoo Gope and Others

Fazl Ali, C.J.—These four appeals are by the Proprietor of Touzi No. 9945 of village Gobindpur against the judgment of the Subordinate Judge of Gaya reversing the decision of the Munsif of Gaya in a suit brought by the appellant for a declaration that the order of the Rent Reduction Officer dated 21st March 1939 reducing the rent of a number of occupancy holdings described in the schedule attached to the plaint was illegal, ultra vires and without jurisdiction. The trial Court decreed the plaintiff''s suit, but the lower appellate Court has dismissed it, hence these second appeals. The case of the parties has been put quite clearly and succinctly in the following passage which I quote from the judgment of the trial Court:

The plaintiff''s case is that the defendants of these suits who are the occupancy raiyats of \\ his takhta in village Gobindpur filed a number of applications u/s 112 A(1), Bihar Tenancy Aot, before the Rent Eeduotion Officer for the reduction of the rents of their holdings. It is said that the Rent Seduction Officer allowed reduotion in an arbitrary manner and without the service of any notice on the plaintiff. Plaintiff''s further allegation is that the non-service of notice and the arbitrary reduction were due to the collusion between his mortgagee (the pro forma defendants) and the tenant defendants. All the defendants exoept defendants 5, 7, 8, 19, and 21 in suit No. 108 and defendant 3 in suits Nos. 110 and 111 have appeared and have filed written statements. Besides pleading limitation and challenging the maintainability of these suits on the ground of multifariousness, their contention is that the orders of the Rent Eeduotion Officer passed under different clauses of Section 112A, Bihar Tenanoy Act, are quite legal and not without jurisdiction and as such they cannot be challenged in a oivil Court. They also deny the allegation of non-service of notice and assert that the orders of reduction were passed to the knowledge of the plaintiff and his ijaradars after due contest of the application filed u/s 112A(1), Bihar Tenanoy Act.

It appears that at the time of the rent reduction proceedings the plaintiff''s tauzi was in the possession of the two ijaradars, namely, Doma Shah and Lalji Sah. The rules which have been framed to be made applicable to the rent reduction proceedings under the Bihar Tenancy Act are to be found in chap. 7B. The main rules which may be referred to here are Rules 115 and 117 and 114. It may be recalled that u/s 112A two alternative cases are provided for. It is provided in the first place that if the Governor by notification directs that a settlement of the rent of the occupancy holdings situated in any area or of any class or classes of occupancy holdings situated in any area shall be made under this section then rent may be reduced under the various sub-clauses of the section by the Collector of his own motion or on the application of a landlord or occupancy raiyat for settlement of rent; secondly, it provides that the Collector may also reduce the rent as provided in the section on the application of an occupancy raiyat or a landlord made in the prescribed form. Prom this section, it is clear that the Collector can reduce rent of his own motion in certain cases and may also reduce in certain cases the rent on the application of an occupancy raiyat or a landlord. He can reduce rent of his own motion if there is a notification by the Governor but otherwise he will do so on the application of the occupancy raiyat or a landlord. R. 115 provides for the promulgation of a general notice when the ''Governor has issued a notification under Sub-section (1) of Section 112A. The notice according to this rule shall state that on the date and place specified therein the Collector will settle the rents and it further provides that such notice shall be served at least one month previous to the date fixed for settlement of rent. R. 117 runs as follows:

If the landlord or a tenant of any occupancy holding referred to in the notice served under Rule 115 does not attend after service of the said notice has been proved, the procedure may be ex parte.

Provided that when the Collector proposes to alter the existing rent of any occupancy holding and the ;parties have not attended in compliance with the notice served under Rule 115, the Collector shall serve on each person interested a special notice, and the rent of such holding shall not be altered in the absence of such person until after the service of such special notice has been proved.

Rule 114 provides that Rule 82 and certain other rules shall apply as far as may be to applications u/s 112A. R. 82 is to the following effect:

When the landlord or tenant applies for the settlement of a fair rent, he shall be considered as plaintiff and the opposite party as defendant. The proceedings shall be dealt with as suits and, subject to the directions contained in Rules 84 to 87 of this Chapter, the Revenue Officers shall adopt, as far as it is applicable, the procedure laid down in the CPC for the trial of suits.

It was conceded before us that where proceedings can be taken under Rule 114, then the procedure to be adopted will be the procedure prescribed for a suit and there will be no prescribed time limit as we find in Rule 115 for the service of notice on the party arrayed as defendant. The main question which was argued in these appeals was whether there was any service of notice as provided by Rules 115 and 117 upon the plaintiff. It was urged on behalf of the appellant ''that in fact neither of these notices was served and that in any event notice under Rule 115 was not served one month previous to the date fixed for the settlement of rent. It Was urged that the order of the Rent Eeduction Officer was ultra vires on account of the violation of the provisions of Rules 115 and 117. The Munsif, who tried the suit, upheld the contention and found that notices had not been properly served. The lower appellate Court, however, has found that these notices were accepted by the ijaradars and their servant Rajendra Lal and in some cases by one Budhu Rajwar, a servant of the plaintiff, and that these persons were authorized by the plaintiff to look after the rent reduction proceedings. These findings appear to me to conclude the controversy as to the proper service of the notices. These notices had been issued in the name of the plaintiff and according, to the findings of the lower appellate Court they were served on persons who had authority to accept them on behalf of the plaintiff. It was urged on behalf of the plaintiff that the ijaradars were in collusion with the tenants, but this contention has been definitely negatived by the lower appellate Court and it has been pointed out that the interest of the ijaradars was identical with that of the plaintiff. It has also been found that the plaintiff was aware of the rent reduction proceedings. It was contended before us on behalf of the appel lant that the service upon the ijaradars and other persons was invalid in view of Section 187, Bihar Tenancy Act, which provides among other things that:

Any appearance, application or act, in, before or to any Court or authority, required or authorized by this Act to be made or done by a landlord, may, unless the Court or authority otherwise directs, be made or done also by an agent empowered in this behalf by a written authority under the hand of the landlord.

and that

every notice required by this Aot to be served on, or given to, a, landlord shall, if served on, or given to, an agent empowered as aforesaid to accept service of or receive the same on behalf of the landlord be as effeotual for the purposes of this Aot as if it had been served on, or given to, the landlord in person.

It is pointed out that in this case there is no written authority by the plaintiff in favour of the ijaradars and Budhu Rajwar and therefore the service of the notices upon them was not valid. But it must be remembered that any irregularity in the service of the notices cannot by itself be held to affect the jurisdic tion of the Rent Reduction Officer in dealing with the application made by the tenants for reduction of their rent..

The next point urged before us was that in some cases the notices were not served 30 days before the date fixed for the settlement of rent and therefore there was a violation of one of the provisions of Rule 115. This contention, in my opinion, does not go to the root of the jurisdiction of the Settlement Officer. Besides, as has been pointed out by the lower appellate Court, the present case will fall under Rule 114 and therefore will be governed by Rule 82 which provides that the proceedings shall be dealt with as suits and will be conducted as far as possible according to the procedure laid down in the CPC for the trial of suits. It should be remembered that Section 112B gives a right of appeal to a party dissatisfied with the order of the. Rent Reduction Officer. If there was any irregularity in the procedure of the Rent.Reduction Officer that could have easily been made a ground of appeal which the plaintiff was entitled to prefer u/s 112B; but notwithstanding the fact that the plaintiff Was aware of the proceeding before the Rent Reduction Officer (the finding of the lower appellate Court is clear and definite on this point), he (the plaintiff) did not prefer an appeal u/s 112B. Instead of preferring an appeal he took recourse to a suit which can succeed only if it was proved that the Rent Reduction Officer had no jurisdiction to reduce the rent. This, in my opinion, the plaintiff has failed to do.

It was contended that there was such a fundamental irregularity in the proceedings as to make the decision of the Rent Reduction Officer ultra vires, but as I have pointed out this contention cannot succeed. The case does not fall within the rule laid down by the Judicial Committee in Secy. of State v. Jatindra Nath AIR 1924 P.C. 175 or Mahabunnessa Bibi and Others Vs. Secretary of State, . Reliance was also placed upon a decision of a single Judge of this Court in Nand Kishore Lal Vs. Basdeo Singh and Others, for the proposition that where no notice was served upon the landlord the reduction of rent was without jurisdiction. Dr. Mitter, who appears on behalf of the respondent, does not agree with this proposition; and, inasmuch as it has been found by the lower appellate Court that notices were served in this case upon persons who were authorised by the plaintiff to look after the rent reduction proceedings, the question as to whether the rent reduction proceedings will be wholly vitiated on account of non-service of notices does not arise in these appeals. It may be pointed out that the observations of Sir Ashutosh Mookerjee upon which Manohar Lall J.,. based his judgment do not altogether help the appellant. The learned Judge after expressing the view that where no notice is served the proceeding for commutation may be without jurisdiction observes,

it is not a case where proceedings properly initiated have been notified to the parties concerned, but there has been an irregularity in the service of notice. Here the revenue authorities assumed "jurisdiction over persons who would be affected by their order without any notice served upon them.

There is, therefore, a fundamental distinction between non-service and service which is somewhat irregular. At the highest the present case can be brought only under the latter category. In my judgment therefore the order of the lower appellate Court is correct and I would accordingly dismiss these appeals with costs. There will be one set of hearing fee and one set of costs in these appeals.

Chatterji, J.

I agree.