Harbans Pandey and Others vs Sobhan Singh

Sinha, J.—This is a plaintiffs'' second appeal from the decision of the learned Subordinate Judge of Gaya modifying that of the Munsif of Aurangabad in a suit for two declarations; (1) that the restoration of the holding under the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act, 1938, was illegal, ultra vires and without jurisdiction, and (2) that a reduction of the rent of the holding after restoration was similarly ultra vires and null and void.

The facts leading up to this appeal may shortly be stated as follows. The defendant, Sobhan Singh, had an occupancy holding which originally paid rent in kind. As a result of commutation proceedings, it was converted into a cash-paying holding in 1921 with effect from 1328 Fasli. The landlords obtained judgment against the tenant for arrears of rent, and, in execution of that decree, put the holding to sale, and purchased it themselves on 26-10-1933. On 2-7-1934, they obtained delivery of possession through Court. On the enactment of the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act (9 [IX] of 1938), the tenant started proceedings for restoration of his holding. The landlords, who are the plaintiffs in this suit, contested the tenant''s right to restoration, chiefly on the grounds that they were petty landlords within the meaning of the Act, and that they had been in direct possession of the holding by cultivating the same. Bat the Revenue Officer decided against the landlords, and, by his order dated 26-11-1939, he directed that the holding be restored to the tenant.

The landlords went up in appeal or revision up to the highest revenue Court; but their contentions were negatived by these Courts, with the result that the tenant was put in possession of the holding in December 1939. Subsequently, the tenant made another application for reduction of rent, and the rent of the holding was reduced by the Rent Reduction Officer on 23-9-1940. The landlords preferred an appeal to the Collector, who has been vested with final powers in such proceedings under the. Act. The Collector, by his orders dated 27-8-1941, allowed the appeal, and the effective portion of his judgment is as follows:

I think it was not open to the learned R.R.O. to apply Clause (d) to this case. It is not the action (option?) of the tenant or the R.R.O., to apply any of the clauses. Clause (d) is inapplicable in this case, and Clause (b) is applicable. But the petition is time barred for being filed under Clause (b). I fully see that the tenant could not have applied within the time limit for obvious reasons; but to circumvent that circumstance, however unfortunate it might be, it is not possible to apply Clause (d). Appeal allowed. Cancel Rent Schedule.

The tenant''s application in revision to the Commissioner being unsuccessful, he moved the Beard of Revenue, and the latter, by its order dated 26-8-1942, allowed the revisional application set aside the appellate order of the Collector and restored the original order of the Rent Reduction Officer. Hence this suit by the landlords to get rid of the effect of the orders passed by the revenue Courts as aforesaid, restoring the holding and reducing its rent.

The suit was contested by the tenant defendant who pleaded that the orders passed by the revenue Courts were quite regular and with jurisdiction, and that the civil Courts had no jurisdiction to interfere with the final orders passed by the revenue Courts.

The two principal questions in controversy between the parties are: (1) whether the orders of the revenue Courts restoring the holding to the tenant were ultra vires, illegal and without jurisdiction, and (2) whether the order of the Beard of Revenue restoring the Rent Reduction Officer''s order, which had been set aside in appeal by the Collector, who had been vested with final powers by the Act, could be reopened in this suit on the ground that the Beard of Revenue had no jurisdiction to interfere with the final orders of the appellate Court.

The grounds urged in support of the contention that the orders of the revenue Court restoring the land to the defendant were ultra vires are: (1) that the Bihar Bakasht Bestoration Act of 1938 is itself ultra vires of the Provincial Legislature, inasmuch as it was repugnant to certain provisions of an Act of the Central Legislature; (2) that the plaintiffs being petty landlords, and the lands in question being in their khas cultivating possession, the revenue Court had no jurisdiction to apply the provisions of the Bakasht Restoration Act, in favour of the tenant; and (3) that one of the cosharer proprietors, Jadunandan Pandey, had not been effectively impleaded in the proceedings. The first and the third grounds have not been pressed by the learned Counsel for the appellants in this Court; the only ground pressed by him is the second one. This ground is based on Clause (a) of Section 6(1), Bakasht Reatoration Act. That clause is in these terms:

that he is a petty landlord and that he has been cultivating the holding or any portion thereof by himself with his own stock or by his own servants since before the twenty-second day of March 1938.

In this connection it is necessary to set out certain relevant provisions of the Act. Clause (d) of Section 2 of the Act defines "petty landlord" as meaning

a landlord who has neither been assessed to agricultural Income Tax under the provisions of any law for the time being in force relating to agricultural Income Tax, nor is liable to pay local cess under the Cess Act, 1880, of an amount exceeding Rs. 375 per annum.

Section 3 gives a raiyat, whose holding or a portion of whose holding was sold at any time between the 1st day of January 1929, and the 31st day of December 1937, in execution of a decree for arrears of rent and was purchased by the landlord of such holding and is in the possession or under the control of the said landlord, the right to make an application to the Collector for the restoration of such holding or portion, and prescribes the form in which the application has to be made. Section 4 vests the Collector with the power to reject such an application on certain grounds stated therein. But, if the Collector decides to entertain the application made u/s 3 a notice has to be given to the landlords concerned as named in the application. Section 6(1) recites the grounds on which such an application may be opposed. Section 6(2) then provides that the Collector shall make such enquiry as he thinks fit, and (omitting the unnecessary portions of the Sub-section), if he decides that the landlord is a petty landlord, and that he has been cultivating such holding or portion as mentioned in Clause (a) of Sub-section (1), he shall dismiss the application. Section 8 provides that, if the application is not dismissed by the Collector as aforesaid, the Collector shall determine the land which is liable to be restored to the raiyat under the provisions of the Act and the amount which shall be payable by the raiyat in order to obtain restoration of his holding, and then lays down the rules for the computation of the amount of compensation. Section 12 provides that, on restoration of the land to the raiyat in pursuance of the provisions of the Act as aforesaid, any encumbrances created by the landlord on the lands thus restored to the raiyat shall not be binding upon him, and

all such rights as the raiyat had in respect of the said land and the incidents thereof before its sale shall revive.

Section 22 makers the order and decision of the revenue Courts final in these terms:

Every order parsed by the Collector under this Act shall be final, and no civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act.

I have gone into the details of the provisions of the Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act, 1938, in order to point out that the Act was intended to be self-contained as regards the procedure and the machinery to grant the relief to tenants of the class defined in the Act. The revenue Courts were vested with exclusive jurisdiction to entertain cases under the Act, and decide them, and the jurisdiction of the Courts was expressly barred in respect of the orders and decisions of these Courts. It was the revenue Courts which had to apply the provisions of the Act to the facts and circumstances of each individual case. With reference to the facts of the present case, it must be observed that the revenue Courts had to determine for themselves and finally as to whether the landlords were "petty landlords" within the meaning of the Act, and whether they were in direct cultivating possession of the holding in question. Those are questions of fact which had to be enquired into and determined by these Courts. The determination of these questions, right or wrong, was expressly made final by the provisions of Section 22 of the Act. Hence, even assuming that the plaintiffs were petty landlords, and that the revenue Courts wrongly decided that question against them, in my opinion, it is no more open to the civil Courts to re-open that decision. But Mr Baldeva Sahay argued that the question whether the landlords in this case were petty landlords raised a question of status, and the decision on the question of status could be reopened. But this argument loses sight of the fact that the landlords had to prove not only that they were petty landlords within the meaning of the Act but also that they were in direct cultivating possession of the holding. These questions had to be determined on the evidence before the revenue Courts, and, even if these Courts went wrong on merits, they had the exclusive jurisdiction to decide these questions. It must, therefore, be held that there is no substance in the contention that the provisions of the Act leave any scope to the civil Courts to reopen the controversy and to arrive at an independent decision of their own. In view or these considerations, the first ground of attack against the judgment of the Courts below must be held to be without any substance.

Coming to the second ground of attack against the judgment of the lower appellate Court, it has to be stated that the trial Court decided in favour of the appellants to the effect that the orders of the Beard of Revenue, upholding the order of the Rent Reduction Officer reducing the rent by 40 per cent, were entirely illegal and ultra vires. On appeal, the learned Subordinate Judge reversed that part of the judgment, and held that the orders of the Beard: of Revenue were with jurisdiction, and that the orders of the Collector, setting aside the orders of the Court of first instance reducing the rent, were without jurisdiction. The learned Munsif relied upon the decision of a single Judge of this Court in Radha Krishnaji v. Ramkhelawan Singh 1943 P.W.N. 253 . In that case, it was laid down that, where u/s 112B, Bihar Tenancy Act, it is provided that the decision of ''the Collector of the district or of any officer so empowered, or of the prescribed authority, on any such appeal shall be final, there is no power in the Commissioner or the Beard of Revenue to set aside the order of the Collector made rightly or wrongly in the exercise of jurisdiction and even if it is erroneous. It can interfere only if the order is without jurisdiction. It was contended by Mr. Baldeva Sahay that in this case the Collector, who is vested with final powers to determine the matter, rightly or wrongly, came to the conclusion that the tenant was not entitled to relief by way of reduction of rent. That order, he contended, became final between the parties, and the Beard of Revenue had no jurisdiction to set aside that order except on the ground that the Collector exercised a jurisdiction not vested in him by law or that he. refused to exercise a jurisdiction vested in him by law. In this connection reference was made to the decision of the Letters Patent Bench which affirmed the decision of the single Judge in the case referred to above, Sri Thakur Radha Krishnaji Vs. Ramkhelawan Singh and Others, . So far as this Court is concerned, the law seems to have been settled that the orders of the Collector on appeal u/s 112B, Bihar Tenancy Act, are final except where they can be shown to have been passed without jurisdiction. The difficulty arises when this dictum has to be applied to the, facts of a particular case. In the present case the Rent Reduction Officer had decided that the tenant could claim reduction of rent under the provisions of Clause (d) of Section 112A(1). On the other hand, the Collector decided that the tenant could not invoke the aid of that clause. Can it be said that the Collector in so deciding exercised a jurisdiction not vested in him or refused to exercise a jurisdiction vested in him? Mr. Baldeva Sahay rightly pointed out that, in coming to the decision arrived at by the learned Collector, he may have been in error in applying the provisions of the Bakasht Restoration Act or of the Bihar Tenancy Act. But that would not amount to a refusal to exorcise jurisdiction. It must also be noted that it is no party''s case in the present instance that the Collector had not the jurisdiction to entertain the appeal. Hence, the position is that the Collector was clothed with the authority to entertain the appeal. The subject-matter of the appeal and the parties to it were properly before him. The only question which he had to determine was whether, in the circumstances of the case, the tenant was entitled to claim the benefit of Clause (d) of Section 112A(1), Bihar Tenancy Act. The two Courts took contrary views of the rights of the parties. But can it be said that the learned Collector exercising appellate powers, had no jurisdiction to come to the conclusion at which he actually arrived? This is certainly not a case of initial want of jurisdiction, nor is it a case of exceeding a jurisdiction. Then, is it a case of refusal to exercise a jurisdiction? In my opinion, clearly it is not so. It has not been contended that material irregularity in the exercise of jurisdiction could vitiste the decision of the learned Collector or could attract the general power of superintendence said to be vested in the Beard of Revenue. It must, therefore, be held that the appellate orders of the learned Collector, setting aside the orders of the Rent Reduction Officer reducing the rent, were not without jurisdiction, and, therefore, binding upon the parties, and the orders of the Beard of Revenue were, therefore, null and void as having been passed without jurisdiction.

In that view of the matter, this part of the judgment of the learned Subordinate Judge must be set aside, and that of the Munsif restored. As success is divided between the parties, it is directed that each party will bear its own costs throughout.

Mukharji, J.

I agree.