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Judgment
Fazl Ali, C.J.—The question involved in these appeals is one of some difficulty and has been referred, to a Full Bench in view of the conflicting opinions expressed in two Division Bench cases of this Court in regard to the construction of Section 16, Bihar Restoration t of Bakasht Lands and Beduction of Arrears of Rent Act (Bihar Act 9 of 1938). Section 16 occurs in chap. 3 which relates to the reduction of arrears of rent and runs as follows:
(1) Notwithstanding anything to the contrary contained in any law, where any arrears of rent are due to a landlord in respect of a holding other than a holding referred to in Section 15 for any period ending before the first day of Asin, 1345 Fasli corresponding to Asin Badi 1 of 1994 Sambat, the raiyat may make an application to the Collector for the reduction of such arrears. (2) No application under Sub-section (1) shall be entertained unless it is made within a period of one year from the date on which this section comes into force.
In order to understand the scope of the section it will be necessary to refer to the preceding section Section 15 of the Act--and also to Sections 112 and 112A, Bihar Tenancy Act. Section 112 provides that the Local Government may in certain circumstances invest the revenue officer with the following powers: (a) the power to settle all rents, (b) the power when settling rent to reduce rent, if in the opinion of the officer the maintenance of the existing rent would, on any ground whether specified in the Act or not, be unfair or inequitable. Section H2A empowers the Collector to reduce or settle the money rent of the occupancy holding in the following manner:
(a) He may cancel all enhancements of the rent made u/s 29 or under Clauses (a), (b) or (d) of Section 6 Section 30 between 1st January 1911 and 31st December 1936. (b) He may reduce the rent of any occupancy holdings the rent of which was commuted whether u/s 40 or by agreement between the tenants and the landlord between 1st January 1911 and 3lst December 1936 in the manner specified in the section, (c) He may order the partial or entire remission of the rent for such period as he considers reasonable -- (i) if the soil of the whole or part of the holding has become temporarily or permanently deteriorated without the fault of the raiyat and (ii) if the landlord has failed to carry out the arrangements in respect of irrigation which he is bound to maintain, (d) Ho may reduce the rent to the extent specified in the section, if there has been a fall not due to a temporary cause in the average local price of staple food crops during the currency of the present rent, (e) He may settle a fair rent in such class of cases as may be specified in a notification issued for other sufficient reasons by the Governor in this behalf.
This section, as will appear from its provisions, relates to the reduction of rent; Sections 15 and 16 of Act 9 of 1938, on the other hand, relate to the reduction of the arrears of rent. Section 15 deals with occupancy holdings only and provides both for cases in which the rent of such holding has been settled or reduced under Sections 112 and 112A as well as those in which rent of such holding has not been settled or reduced under these provisions. Clause (a) of the section states that Where the rent of an occupancy holding has been settled or reduced u/s 112 or Clauses (a), (b), (d) or (e) of Sub-section (1) of Section 112A, Bihar Tenancy Act.... a landlord shall not in any suit or proceeding instituted before or after the date on which the section comes into force be entitled to recover from the raiyat of such holding any arrears of rent in respect of the years covered by such suit or proceeding at a rate in excess of the rent so settled or reduced whether such arrears accrued due before or after such rent was settled or reduced. Clause (b) relates to those cases in which rent has not been reduced u/s 112 or 112A, Bihar Tenancy Act, and provides that in such cases the landlord of the occupancy holding concerned shall not in any suit or proceeding instituted before or after the date on which the section comes into force in respect of the arrears of rent for any period between the first day of Asin 1345 Fs. be entitled to recover from the raiyat any arrears of rent due in respect of such holding at a rate in excess of the rent which would be settled for the holding under Clauses (a), (b) or (d) of Sub-section (1) of. Section 112A, Bihar Tenancy Act, if the raiyat had made an application under any of the aforesaid clauses of Section 112A, Bihar Tenancy Act. Then follows Section 16 which has already been quoted.
The points which are to be noted with regard to Section 15 are (1) that if the section is read as a whole along with the provisions of the Bihar Tenancy Act to which it refers, there can be no doubt that it refers only to those occupancy holdings for which a cash rent is payable. (2) That it deals with the cases in which rent of an occupancy holding has been settled or reduced under Sections 112 and 112A as well as those in which it has not been so settled or reduced. (3) That Claue (a) does not refer to those cases in which rent has or could have been reduced under Clause(c) of Section 112A and Clause(b) also makes no reference to Clause (c) of Section 112A, Bihar Tenancy Act, with the result that neither Clause (a) nor Clause (b) contains any provision in regard to the reduction of the arrears of rent due in respect of an occupancy holding where the rent itself has either been reduced or has not been reduced u/s 112 Clause (c).
With these introductory remarks let us now proceed to read Section 16 which purports to deal with the cases where arrears of rent are due to a landlord in respect of "a holding other than a holding referred to in Section 15." As Section 15 refers to occupancy holdings only, there can be no doubt that the provisions of Section 16 will apply to all holdings other than an occupancy holding. The provisions of this section also apply to an occupancy holding for which rent is payable in kind. This view has been expressed in Sreekant Lal Vs. Ajodhya Singh and Others, and with that view I respectfully agree. It has been contended on behalf of the appellants that inasmuch as Section 15 refers specifically to an occupancy holding only, Section 16 must relate to holdings other than an occupancy holding, that is to say, no relief can be given under the section in regard to any arrears of rent due in respect of an occupancy holding. The argument ill a plausible one and derives some strength from the somewhat clumsy and inartistic language of the section. It was also accepted by a Bench of this Court in Sir Kameshwar Singh Bahadur Vs. Dhunman Gope and Others, with some qualification as will appear from the following extract from the judgment of Manohar Lall J. in that case:
The critical words to be examined are--''in respect of a holding other than a holding referred to in Section 15''. I ask myself: ''What is the holding referred to in Section 15''? The answer is clear that it is an occupancy holding. It follows therefore that an occupancy holding which is held at a cash rental is not contemplated by Section 16, Sub-clause (1) of the Act at all.
The qualification is as the underlined (here italicized) words indicate about the cash rental. It seems to me that this very qualification shows that the matter is not so easy as it appears to be. If Section 16 was not intended, to apply to an occupancy holding at all, the simplest way to convey this meaning would have been to say "a holding other than an occupancy holding." Similarly, if the object of the Legislature had been to exclude all occupancy holdings for which cash rent is paid, the words would have been "a holding other than an occupancy holding for which cash rent is paid." But what we find is that instead of using these simple expressions the Legislature has used the expression "a holding referred to in Section 15." To my mind, the language used in the section suggests that in order to find out what holdings are excluded from the operation of Section 16 one will have to read the whole of Section 15 and see what eases are dealt with in that section. As I have already stated, the view expressed in Sreekant Lal Vs. Ajodhya Singh and Others, as well as in Sir Kameshwar Singh Bahadur Vs. Dhunman Gope and Others, is that Section 16 does apply to an occupancy holding for which a produce rent is payable, but Section 15 does not expressly say so and. it is only by reading the whole of the section that one can come to the conclusion that an occupancy raiyat paying a produce rent is excluded from its operation. If, therefore, it is permissible to read the whole of the section for the purpose of coming to this conclusion, it is equally permissible, in my opinion, to read it for the purpose of deciding whether all occupancy holdings carrying cash rent arc covered by Section 15. As I have already stated, those cases in which the rent of an occupancy holding has been reduced u/s 112A, Clause (c) or might be reduced under that clause, are not dealt with in Section 15. Are we then to conclude that the Legislature did not intend to grant any relief to such a tenant at all under the Act? We may also refer in this connexion to sub-cl. (3) of Section 112A which provides:
If the Governor by notification directs that there shall be commutation of rents of the occupancy holdings or any class of occupancy holdings situated in any area, the rent of which is paid in kind or in any of the other ways mentioned in Sub-section (1) of Section 40, the Collector may, on the application of the raiyat or landlord of any such holding, or on his own motion, determine the sum to be paid as money rent for such holding, and may order that the rayat shall in lieu of paying his rent in kind, or otherwise as aforesaid, pay the sum so determined.
It is obvious that a case which falls under sub-cl. (3) of Section 112A is not covered by Section 15 of the Act. Are we therefore to conclude that the Legislature did not intend to grant any relief to the occupancy tenants in cases covered by this provision ? Therefore, it will not be correct to say that all occupancy tenants paying cash rent can be given relief u/s 15 and therefore Section 16 could not have been intended to apply to them. The preamble to the Act shows that in enacting this piece of legislation the Legislature was greatly influenced by the unprecedented fall in prices between 1st January 1929 and 31st December 1937 and considered that the reduction of arrears of rent in certain cases was necessary to afford some relief to the tenants. Therefore it is the duty of the Court to give such a construction to the provisions of this remedial enactment as may be in consonance with its object. The principles which should be followed in construing such an Apt are well settled and are summarised in Maxwell''s Interpretation of Statutes in these words:
It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the Legislature, a more extended meaning may be attributed to the words, if fairly susceptible of it. If there are circumstances in the Act showing that the phraseology is used in a larger sense than its ordinary meaning, that sense may be given effect to.
Of course the beneficial construction is not to be strained so as to include cases plainly omitted from the natural meaning of the words, but, in my opinion, the only reasonable construction of Section 16 is that it was intended to apply to those cases in which relief was not possible u/s 15. Section 15 has a fairly wide scope so far as the occupancy holdings are concerned. Nevertheless, as has been shown, there is no reference in that section to certain classes of occupancy tenants paying a cash rent. In my opinion the words "other than a holding referred to in Section 15" mean a holding other than the holdings for which relief is provided for by Section 15, or, in other words, those in respect of which relief can be asked for u/s 15. The section therefore will be applicable to (1) all holdings other than occupancy holdings; (2) occupancy holdings for which produce rent is payable and (3) those occupancy holdings which do not come under either of the two categories referred to in Clauses (a) and (b) of Section 15 -- that is to say, for which no relief is obtainable u/s 15.
In my opinion, Sections 15 and 16 were intended to cover the entire field of rayati holdings and Section 16 is a kind of residuary provision which was enacted to apply to all cases in which it is not possible to obtain relief u/s 15. Section 18, Clause (4) which sets out the relief which can be given to a raiyat who makes an application u/s 16 may also be referred to here. It provides that if the Collector admits an application made under Sub-section (1) of Section 16, he may, if after making such enquiry as he thinks fit, ho is satisfied that the means and circumstances of the raiyat were affected by any fall in prices during the period begin, ning with 1st January 1929 and ending with 31st December 1936, reduce the arrears to such an extent as he considers proper in the circumstances of the case. This provision shows that what the Collector has to find out before granting relief u/s 16 is whether the means and circumstances of the raiyat were affected by any fall in prices between 1st January 1929 and 31st December 1936. In the course of the argument, reference was made to the following three cases : Sir Kameshwar Singh Bahadur Vs. Dhunman Gope and Others, Sir Kameshwar Singh Bahadur Vs. Rameshwar Singh and Others, and Sreekant Lal Vs. Ajodhya Singh and Others, . So far as the first case is concerned, it simply lays down that an occupancy holding for which produce rent is payable is excluded from the scope of Section 15 and is covered by Section 16. As I have already stated, I agree with this view. The second case was decided by Agarwala and Shearer JJ., and their view is summarised in the headnote of the report in these words:
The two Sub-sections of Section 15, Bihar Eestoration of Bakasht Lands and Reduction of Arrears of Rent Act, 1938, impose a bar to the landlord recovering the full amount of arrears of rent of an occupancy holding when the arrears are the subject-matter of a ''suit or proceeding.'' They do not deal with the arrears of rent of an oeeupancy holding which are not the subject-matter of any suit or proceeding or with the arrears of rent of any holding other than an occupancy holding. In other words, Section 15 applies only to occupancy holdings for the arrears of rent of which there is a suit or proceeding pending and not to an occupancy holding for the arrears of rent of which there is no pending suit or proceeding.
It is not correct, therefore, to say that Section 15 comprehends all occupancy holdings and that, therefore, Section 16 cannot apply to any occupancy holding.
The opinion expressed here is undoubtedly entitled to very great respect and it may be that the distinction emphasised by the learned Judges was in the mind of the Legislature in enacting the section, but that intention is not adequately expressed by the words which have been used and in view of the words which occur in Sections 15 and 16 and also in view of what is provided in Section 17, I am unable to hold that the application of these two sections will depend upon whether a suit or proceeding in respect of arrears of rent for a particular occupancy holding is pending or not. In the third case it wa3 held that an occupancy holding which is held at a cash rent is not contemplated at all by Section 16 (1). As I have already said, the view expressed in this case appears at the first sight to be quite plausible, but in the light of the materials placed before us in the course of the argument I am inclined to think that this view also requires modification. Thus the contention put forward on behalf of the appellants that Section 16 (1) does not apply to an occupancy holding which is held at a cash rent fails and as no other contentions were raised, I would dismiss these appeals with costs.
Chatterji, J.
The second appeals arise out of rent suits, and the miscellaneous appeals which are directed against appellate orders arise out of proceedings for execution of rent decrees. The suits and the decrees under execution all relate to occupancy holdings bearing cash rent. The period under claim in all the suits includes 1344 Fasli and in one case also includes 1343. The period to which the decrees relate includes 1342-44 in one case, 1341-43 in another, and 1343-44 in the third. In all the appeals the landlord is the appellant. The objection taken by the tenants in all the cases was that the arrears of rent claimed up to 1344 Fasli had been reduced by the Rent Reduction Officer on their application made u/s 16, Bihar Restoration of Bakasht Lands and Reduction of Arrears of Rent Act (Act 9 of 1938), and that the civil Court was bound to give effect to the reduction so allowed. This objection was refuted by the landlord on the ground that the order of the Rent Reduction Officer was ultra vires inasmuch as Section 16 of the said Act (9 of 1938) is not applicable to an occupancy holding bearing cash rent. The Court below overruled the landlord''s contention and gave effect to the reduction as allowed by the Rent Reduction Officer. The sole question for determination in these appeals is whether Section 16 of Act 9 of 1938 is applicable to an occupancy holding bearing cash rent. It is not disputed that if this question is answered in the affirmative, these appeals must be dismissed. Sec''tion 16 of Act 9 of 1938 runs as follows:
(1) Notwithstanding anything to the contrary contained in any law, where any arrears of rent are due to a landlord in respect of a holding other than a holding referred to in Section 15 for any period ending before the first day of Asin, 1345 fasli corresponding to Asin Badi 1 of 1994 Sambat, the raiyat may make an application to the Collector for the reduction of such arrears.
(2) No application under Sub-section (1) shall be entertained unless it is made within a period of one year from the date on which this section comes into force.
As the context shows, this section must be read with Section 15, of which the material portions are as follows:
Notwithstanding anything to the contrary contained in any law, (a) where the rent of any occu-paney holding has been settled or reduced u/s 112 or Clause (a) (b), (d) or (e) of Sub-section (1) of Section 112A, Bihar Tenancy Act, 1885, ... a landlord shall not, in any suit or proceeding instituted before or after the date on which this section comes into force, be entitled to recover from the raiyat of such holding any arrears of the rent of such holding in respect of the years covered by such suit or proceeding, at a rate in excess of the rent so settled or reduced, whether such arrears of rent accrued due before or after such rent was settled or reduced : (b) if the rent of an occupancy holding has not been settled or reduced u/s 112 or Section 112A, Bihar Tenancy Act, 1885... the landlord of such holding shall , not, in any suit or proceeding instituted before or after the date on which this section comes into force, in respect of the arrears of rent for any period before the first day of Asin 1345 fasli corresponding to Asin Badi 1 of 1994 Sambat, be entitled to recover from the raiyat any arrears of rent due in respect of such holding at a rate in excess of the rent which would have been settled for the holding under Clause (a), (b) or (d) of Sub-section (1) of the said Section 112A, Bihar Tenancy Act, 1885 .... if the raiyat had made an application under any of the aforesaid clauses of the said Section 112A, Bihar Tenancy Act, 1885....
The words "holding other than a holding referred to in Section 15," which occur in Section 16 (1), have been differently interpreted by Division Benches of this Court. In 21 Pat. 704,3 decided on 6th May 1942, Agarwala J. with whom Shearer J. agreed, said:
Section 15 applies only to occupancy holdings for the arrears of rent of which there is a suit or proceeding pending and not to"an occupancy holding for the arrears of rent of which there is no pending suit or proceeding. It is, in my opinion, incorrect therefore to say that Section 15 comprehends all occupancy holdings and that therefore Section 16 cannot apply to any occupancy holding.
He accordingly held that where a proceeding is pending for recovery of arrears of rent of an occupancy holding, the holding is one to which Section 15 (b) applies and the application of Section 16 to such holding is excluded. On the other hand, in 21 Pat. 794 decided on 4th August 1942 by Harries C. J., and Manohar Lall J. it was held thai; the words "holding referred to in Section 15" in Section 16 refer to an occupancy holding and that an occupancy holding bearing cash rent does not come within Section 16. Manohar Lall J. who gave the leading judgment, said:
The critical words to be examined are ''in respect of a holding other than a holding referred to in Section 15.'' I ask myself: ''What is the holding referred to in Section 15?'' The answer is clear that it is an occupancy holding. It follows, therefore, that an occupancy holding which is at a cash rental is not. contemplated by Section 16, Sub-clause (1) of the Act at all.
It is on account of the conflicting views thus taken in these two decisions that this Full Bench has been constituted. Section 15, Clause (a) refers to an occupancy holding of which the rent has been settled or reduced u/s 112 or Clause (a), (b), (d) or (e) of Sub-section (1) of Section 112A Bihar Tenancy Act. Section 15, Clause (b) refers to an occupancy holding of which the rent has not been settled u/s 112 or 112A, Bihar Tenancy Act, but in respect of which the raiyat would have been entitled to a reduction of rent under Clause (a), (b) or (d) of Sub-section (1) of Section 112A, Bihar Tenancy Act, if he had made an application under any of these clauses. If, therefore, an occupancy holding does not come under either of these two categories referred to in Cls. (a) and (b) of Section 15, it is, in my opinion, "a holding other than a holding referred to in Section 15." In other words "a holding referred to in Section 15" means a holding for which no relief is obtainable u/s 15. In the cases before us, Section 15, Clause (a) has no operation, because admittedly the rents of the holdings in question have not been settled or reduced u/s 112 or Clause (a), (b), (d) or (e) of Sub-section (1) of Section 112A, Bihar Tenancy Act. Section 15, Clause (b) could be operative only if the raiyats could show that they would have been entitled to a reduction of rent under Clause (a),(b) or (d) of Sub-section (1) of S.112A, Bihar Tenancy Act, if they had made application under any of these clauses. Clause (a) of Section 112A (1) refers to cancellation of enhancement of rent made between a stated period u/s 29 or under the specified clauses of Section 30. Clause (b) of the section refers to reduction of rent where the rent had been commuted. Clause (d) refers to reduction of rent, if there has been a fall not due to a temporary cause in the average local prices of staple food crops during the currency of the present rent. Clauses (a) and (b) would not apply, unless the rent had been enhanced in one case and commuted in the other. Clause (d) would apply only if the average local prices were higher at the time when the present rent first became payable than at the time when reduction of rent was asked for under that clause. From the judgments of the learned District Judge under appeal, it appears that it was conceded before him that the tenants could not have got any relief under Clause (a), (b) or (d) of Section 112A (1). It also appears from his judgment to which Miscellaneous Appeal No. 553 of 1941 relates that
the average local prices of staple food crops were not lower at the time of the order of the Bent Seduction Officer than they were when the present rent was recorded at the survey but were rather a little higher.
It is thus clear that the tenants in these cases were not entitled to any relief at all u/s 15. And if it were not open to. them to apply u/s 16, they would be completely deprived of the benefit of Act 9 of 1938. The object of this Act, 9 of 1938, as its preamble shows, was to afford relief to raiyats against hardship caused by the unprecedented fall in prices between 1st January 1929 and 31st December 1937. Chapter 3 of the Act which consists of Sections 15 to 20 is headed "Reduction of arrears of rent." Section 15, as its marginal note shows, deals with "Rate at which certain arrears of rent shall be recoverable." The marginal note to Section 16 is "Reduction of arrears of rent." Section 15 provides for relief to be given by the Court in which a suit or proceeding is instituted for recovery of arrears of rent. Section 16 provides for relief to be given by the Collector. Clause (a) of Section 15, in substance, gives retrospective effect to the settlement or reduction of rent made u/s 112 or Clause (a), (b), (d) or (e) of Sub-section (1) of Section 112A, Bihar Tenancy Act. Where there has been no settlement or reduction of rent under these sections of the Bihar Tenancy Act, Clause (b) of Section 15 provides for relief on certain limited grounds, that is to say, if the raiyat could show that he would have been entitled to a reduction of rent under Clause (a), (b) or (d) of Sub-section (1) of Section 112A, Bihar Tenancy Act, if he had made any application under any of these sections. Section 16 provides for relief to all raiyats whose holdings are not covered by Section 15. The grounds on which reduction of arrears may be allowed u/s 16 are mentioned in Section 18, Clause 4 (a) which runs thus:
If the Collector admits an application made under Sub-section (1) of Section 16, he may, if after making such inquiry as he thinks fit he is satisfied that the means and circumstances of the raiyat were affected by any fall in prices during the period beginning with the first day of January 1929, and ending with the 31st day of December 1936, reduce the arrears to such an extent as he considers proper in the circumstances of the case.
It seems pretty clear from the scheme of the Act that Section 15 provides relief for occupancy raiyats whose holding come under this section, while Section 16 provides relief for all other raiyats, whether occupancy raiyats or not, whose holdings are not covered by Section 15. As observed by my Lord the Chief Justice in his judgment, Sections 15 and 16 were intended to cover the entire field of raiyati, holdings and Section 16 is a kind of residuary provision which was enacted to apply to all eases in which relief is not possible u/s 15. To hold that an occupancy raiyat who cannot get any relief u/s 15 is not entitled to relief u/s 16 will, in my opinion, defeat the very purpose of the Act. Occupancy raiyats are the most important and common class of raiyats, and it will be hardly reasonable to suppose that the Legislature, while enacting Section 16, intended to exclude from its operation those occupancy raiyats who would not be entitled to any relief u/s 15. In Sir Kameshwar Singh Bahadur Vs. Dhunman Gope and Others, Manohar Lall J. said:
The holding referred to in Section 15 is an occupancy holding. If the Legislature intended to mean that an occupancy raiyat could apply u/s 16 (1) of the Act, they would have used a different phraseology." But this reasoning may be applied with greater force in the case of the converse proposition. If the Legislature had intended to exclude occupancy holdings from the scope of Section 16, nothing would have been easier than to use the plain words "a holding other than an occupancy holding.
The use of the expression "a holding referred to in S.15" rather suggests that we must look to the whole of this section . in order to find out what holding it refers to. Manohar Lall J.''s own finding that "an occupancy holding which is at a cash rental is not contemplated by Section 16, Sub-section (1) of the Act at all," which I have already quoted means that the holding referred to in S.15 is an occupancy holding which is at a cash rental. This interpretation is not justified by the plain wording of S.15 itself, unless one examines the provisions of Sections 112 and 112A, Bihar Tenancy Act, which are referred to therein. Another reason given by Manohar Lall J. was that complete relief was given to an occupancy raiyat by the application of Section 112 or Section 112A whether proceedings there under were instituted or not, and, therefore, the Legislature could not have intended to give him further relief on the ground stated in S.18 (4) (a). But I have already shown that in these very cases before us the raiyats could not have got any relief under S.15. Besides, my Lord the Chief Justice has pointed out that there may be other cases in which relief is not possible u/s 15. The decision in 21 Pat. 7043 leads to much the same result, because where, in a case covered by Section 15, Clause (b), a suit or proceeding is pending for recovery of the arrears of rent of an occupancy holding, the raiyat would be without any relief, unless he could show that he would have been entitled to a reduction of rent under Clause (a), (b) or (d) of Sub-section (1) of Section 112A, Bihar Tenancy Act. The decision is also hardly consistent with the provision of Section 17 which is as follows:
When a raiyat has made an application under Sub-section (1) of Section 16, all suits or proceedings instituted before or after the filing of the said application for the recovery of the arrears mentioned in such application shall, on the application of any of the partieg, be stayed while the application under the said Sub-section is pending before the Collector.
This section makes it clear that relief can be given u/s 16, though a suit or proceeding for recovery of the arrears of rent may be pending. There is another Division Bench decision of this Court, 22 P.L.T. 374 which has been cited before us. In this case Harries C. J., with whom Varma J. agreed, held that a holding of which the rent is not a money rent but is produce rent is not within Section 15 of the Act but comes within Section 16 and proceedings for reduction of rent of such holding can properly be made u/s 16. This decision does not touch the point now under consideration. Upon a proper construction of Sections 15 and 16, it seems to me that an occupancy holding bearing cash rent comes within Section 16, if the raiyat is not entitled to relief u/s 15. I therefore agree with my Lord the Chief Justice that the appeals mast be dismissed with costs.
Shearer J.
Section 16 of Bihar Act 9 of 1938 and the sections, which immediately follow it, gave legislative sanction to a scheme of a very extraordinary kind, the object of which was to confer very substantial benefits on certain raiyats or classes of raiyats at the expense of their landlords. The raiyats in question were all raiyats, who had omitted to pay the rent which had accrued due in respect of their holdings up to the end of 1344 Fasli. A raiyat, entitled to benefit under the scheme, was authorised to make an application to the Collector, asking the Collector to reduce the arrears of rent due by him. On the receipt of the application, the Collector was to inquire into "the means and circumstances of the raiyat," and if ho were satisfied that they "were affected by any fall in prices" during the stipulated period, was empowered " to reduce the arrears to such an extent as he considered proper in the circumstances of the case." The discretion given to the Collector was not to be exercised on any fixed principles, and was not subject to any restrictions, except that, if the landlord had already instituted a suit to recover the money due to him, the Collector was enjoined "to take into consideration any costs which he had incurred." Unless the Collector ordered the debt, as reduced by him, to bo paid in instalments, it was not to become legally recoverable until the expiry of 18 months from the date of the making of the order. Even then, the landlord was to be debarred from going to the civil Court and seeking to recover it by due process of law. It is obvious that, if every raiyat in Bihar had been entitled to the benefits of this scheme, the scheme would have been completely and utterly unworkable.
The report on the Administration of Civil Justice for 1938 shows that 1,61,668 rent suits were injtituted in that year. The great majority of these rent suits must, in the ordinary course, have been instituted on the tamadi day which occurred on 12th September 1938 that is, very shortly before Act 9 of 1938 received the assent of the Governor. If every one of the defendants in these rent suits and the tens of thousands of judgment-debtors under rent-decrees, which had not yet been fully executed, as well as those raiyats, who were in arrears with their rent but had not yet, for one reason or another, been sued by their landlords, had made applications to the Collector, and the Collector had had to inquire into the means and circumstances of every one of this multitude of individuals, it would have taken years to dispose of the applications, even if the Provincial Government had been in a position to empower, as it was authorised by the Act to empower, a small army of officers to discharge the functions of a Collector under the Act. It is also obvious that the most patent injustice and wrong would have been done to landlords, many of whom must have entered into commitments in the expectation that they would, sooner or later, be able to realise their rents for which, it has to be remembered, the law gave them the amplest security. In order to mitigate the hardship caused to landlords, and in order to render the scheme less unworkable, the Legislature appears, ultimately, to have decided to restrict very greatly the number of raiyats, who were to be admitted to the benefits of it. At all event, that is what the Legislature did, and it did it by inserting Section 15 in the Act and by inserting, in Section 16, the words "other than a holding referred to in Section 15."
On the receipt of an application u/s 16 of the Act, the Collector Was thus bound to ascertain whether the holding, in respect of which the arrears of rent he was asked to reduce had accrued due, was "a holding referred to in Section 15." If it was such a holding, he had no jurisdiction to proceed further, and was bound to dismiss the application in limine. The holdings referred to in Clause (a) of Section 15 are, quite clearly, occupancy holdings, the rent of whieh "has been settled or reduced" u/s 112 or "cl. (a), (b), (d) or (e) of Sub-section (1) to Section 112A, Bihar Tenancy Act." What are the holdings referred to in Clause (b) ? In order to ascertain this, it is necessary to refer to Clauses (a), (b) and (d) of Sub-section (1) to Section 112A, Bihar Tenancy Act, which make it plain that the holdings in question are : (1) oceup''ancy holdings, the rent of which was enhanced u/s 29 or under cls. (a), (b) and (d) of Section 30 between 1st January 1911, and 3lst December 1936; (2) occupancy holdings, the rent of which was commuted, whether u/s 40, or by agreement, between the tenant and the landlord between 1st January 1911 and 3lst December 1936; (3) occupancy holdings, the rent payable for which is a money rent entered in a record of rights, or, if not entered in a record of rights, the landlord can prove to the satisfaction of the Collector when it first became payable.
The number of occupancy holdings, which do not fall under one or other of these categories, must be extremely small, and, for all practical purposes therefore occupancy raiyats, paying a money rent, were excluded from the benefits of the scheme. Not all such raiyats were however in express terms or by necessary implication, excluded. The principle underlying Clause (d) of Section 112A, Bihar Tenancy Act, was that an occupancy raiyat, paying a money-rent should be entitled to have his rent reduced if, since that rent first became payable, or, if it was not known when it first became payable, since the publication of a record of rights in which it was recorded, there had been a fall in prices. The clause, as drawn, contemplated cases in which it would be impossible for the raiyat''s claim to be either proved or disproved, and, in such cases, as I understand the section, the raiyat''s application had to be dismissed. To take a concrete case; nearly half a century has elapsed since the record of rights for part of the Tirhut Division was finally published. During that long period some occupancy holdings, paying a money-rent, must have come into existence and, if the landlord was unable or unwilling to prove when the rent first became payable, the tenant was unable to obtain a reduction, although he may have been entitled to one. He was not an occupancy raiyat, to whom Clause (d) applied, and, unless he could apply u/s 112 or Clause (e) of Section 112A, he could not obtain any relief. The intention of the Legislature was not, I think, to prevent occupancy raiyats, �who, by force of circumstances, were unable to obtain a reduction in their rent, to which they may on the principles underlying S.112A have been entitled, from obtaining a reduction of their arrears of rent either. Occupancy raiyats in that position, and possibly some small number of other occupancy raiyats also, are,-I think, entitled to apply u/s of the Act. If the Legislature had intended to exclude occupancy raiyats, without any exception whatsoever, it would, instead of saying "holding other than a holding referred to in Section 15," have said "a holding other than an occupancy holding for which a money-rent is payable." It will serve no useful purpose to consider, in vacuo as it were, what classes of occupancy raiyats, paying a money-rent, are entitled to apply u/s 16. The question, which we have to decide is, whether the respondents in these appeals were so entitled ? Now, it is admitted that each one of them is an occupancy raiyat paying a money rent for his holding, and it is admitted that the rent payable by him is entered in a record of rights, in other words, the holdings, in respect of which the respondents made the applications which they did to the Collector, were holdings referred to in Clause (b) of Section 15, and that being so, the Collector was, in my judgment, bound to dismiss the applications in limine, and had no jurisdiction to proceed further and reduce the arrears of rent.
The ground, on which it is Contended that the applications were maintainable, is a somewhat curious one, namely, that, if the raiyats had applied for a reduction in their rent under Clause (d) of Section 112A, they would not have been entitled to any reduction. It is argued that the Legislature intended to confer some benefit on them, and, as they are not entitled to any benefit u/s 15, they must necessarily be entitled to the relief which the Collector has given them u/s 16. The argument is at first sight, a plausible one, but, on close examination, it will, in my judgment, be found to be completely fallacious. The Act is described in the preamble as an Act "to provide for... the reduction of arrears of rent in certain cases." This does not and cannot mean "to provide for... the reduction of all arrears of rent due up to the end of 1344 Fasli." It means and can only mean "the reduction of arrears of rent due by some but not necessarily by all raiyats." The marginal note to Section 15 is "rate at which certain arrears of rent shall be recoverable." This, it appears to me, shows that a suit against an occupancy raiyat, who, on an application under Clause (d) of Section 112A, Bihar Tenancy Act, would not have been entitled to have his rent reduced, is to be decreed in full. The matter is, I think, made clear beyond any possibility of doubt by Clause (c) of Section 15. That clause provides that, when a defendant is not entitled, under any of the preceding clauses, to have the arrears of rent due by him reduced, he is to pay interest on the arrears. If he is entitled to have the arrears of rent due by him, reduced, he is also absolved from the liability to pay interest on them. There are, it has to be borne in mind, two quite separate and distinct schemes embodied in the Act. One scheme is intended for all occupancy raiyats paying a money-rent with, perhaps, a few quite negligible exceptions. The other is intended for all other raiyats. As I have already said, the latter scheme, if it had applied to all raiyats, would have proved completely and utterly unworkable. For that reason, and possibly for other reasons also, the other scheme had to be devised, and why that scheme took the form it did is, I think, quite easily understandable.
Section 112A was inserted in the Bihar Tenancy Act by Act 8 of 1937, which received the assent of the Governor on 29th December 1937. When, in. the course of less than twelve months, the Legislature subsequently came to deal with the problem created by large numbers of raiyats being heavily in arrears with their rent, and, therefore, being in danger of being sold up or evicted, it must at once have occurred to it that a great many of these raiyats had already obtained a reduction in in their rents and that a very simple way of dealing with the problem would be to give retrospective effect to the order reducing their rents. That, at all events, is what the legislature did in the case of occupancy raiyats paying a money rent, when it enacted Clause (a) of Section 15. No doubt, it also occurred to the Legislature then that a number of occupancy raiyats, who would have been entitled to have their rents reduced, might have omitted through ignorance of the law or negligence, to make applications u/s 112A. The Legislature would seem to have taken the view that, so far as any arrears of rent due by them were concerned, such occupancy raiyats should, as far as possible, be placed in the same position as if they had applied for and obtained the relief to which they were entitled. For that purpose, it enacted cl.(b) of Section 15. It is to be observed that, in Clause (b) of Section 15, no mention is made of either Clause (c) or Clause (e) of Section 112A or of Section 112, Bihar Tenancy Act. The reason for this omission would seem to be that while a civil Court could determine, with complete certainty, the extent of the reduction in rent that would have been allowed by a revenue Court on an application made to it under Clauses (a), (b) and (d) of Section 112A, it could not possibly determine the extent of the reduction that would have been allowed on an application under either Clause (c) or Clause (e). " In administering one of the two schemes embodied in the Act, the civil Courts were to act on certain fixed principles. In administering the other scheme the revenue Courts, as I have already said, were given the widest possible discretion. Acting on the principles, on which they were bound to act, the civil Courts were unable to give any of these respondents any relief. The revenue Courts, acting in exercise of their discretion or supposed discretion, were apparently prepared to give them very considerable relief. For instance, in the case of one of these respondents, the collector remitted the whole of the arrears due by him; and, in the case of another respondent, a claim by the landlord for a sum of Rs. 446-14-6 was reduced to no more than lis. 56-8-9. This, however, by itself, proves nothing except that the Legislature acted unwisely in conferring such arbitrary powers on collectors. It is admitted that, if these respondents had been entitled to any relief at all, however small relief may have been, from the civil Courts, they could not have gone to the revenue Courts. To contend that, as, instead of receiving the smallest relief, they obtained no relief at all, they are entitled to the very substituted relief that has been given them by the revenue Courts, is, in my opinion, a reductio ad absurdum. Harries C. J., in,his concurring judgment in 21 Pat. 7943 said:
Section 15 certainly applies to occupancy raiyats holding at cash rent Such occupancy tenants are given relief by Section 15, and if they can obtain no such relief under that section, they cannot fall back on Section 16.
I respectfully agree with that observation. For the reasons already given, Manohar Lall J. went, I think, a little too far in saying that "holding other than a holding referred to in Section 15" meant "an occupancy holding", but the decision was, in my opinion, correct and we ought to follow it.
The other decision, which led to the making of this reference to a Full Bench is 21 Pat. 704 Agarwala J., suggested that a doubt might arise as to whether an occupancy raiyat, against whom no suit to recover arrears of rent had yet been instituted, might not be entitled to apply to the collector u/s 16 of this Act. The respondents or most of the respondents had applied to the collector u/s 16 of the Act before rent suits were instituted against them, and it is, therefore, necessary to Consider this point, on which, it should be said, Agarwala J. did not express any opinion one way or the other. The provisions of the Act have to be considered as a whole, and, when they are so considered, it is, I think, quite obvious that it was not the intention of the Legislature that all the suits to recover arrears of rent which had been instituted and all proceedings in execution of rent decrees which had been obtained prior to the passing of the Act, should be allowed to proceed, and that the civil Courts should, in every such suit or execution proceeding determine the amount of relief, which should be given to the defendants or judgment-debtors and that every raiyat, against whom no suit was pending or no rent decree had been passed, should be entitled to apply to the revenue Courts, and it should be left to the revenue Courts to determine the amount of relief to which he was entitled. It has to be remembered that the scheme for occupancy raiyats, paying a money-rent, was nothing more than a scheme for the partial cancellation of debts. The only way, in which legislative sanction can be given to such a scheme, is by enacting that any suit, instituted to recover the debts in question, shall be decreed in part, and not in full. That, I think, explains why Section 15 of the Act took the somewhat curious form which it did. The other scheme was not merely a scheme for. the par-tial cancellation of debts; it was also a scheme for a moratorium. Moreover when the debts, to which it applied, were finally to become re. eoverable, they were to be recoverable, not through the civil Courts, but through the revenue Courts. ''Che provisions, contained in Section 16st. seq. of the, Act, were, therefore, and necessarily, somewhat different from those contained in Section 15, It is, in my opinion, a matter of no importance at all that when the respondents or most of them applied to the Collector, no rent suits had yet been instituted against them. It was the duty of the Collector, when the applications were presented, to see if the holdings of the applicants were "holding referred to in Section 15," and, when it was obvious, as it ought to have been obvious to him, that they were, to dismiss the applications and advise the applicants that, if they thought they were entitled to any reduction, their proper course was to await the institution of rent suits and have the matter determined by the civil Court.
In my judgment, the orders, which were made by the Collector u/s 16 of this Act, reducing the arrears of rent due by these respondents, were made without jurisdiction. I would, therefore, allow the appeals and remand the cases to the trial Courts to be disposed of in accordance with law. As however, my Lord the Chief Justice and my learned brother Chatterji J. are of a contrary opinion, the order of the Court must be that the appeals are dismissed.