Sir Kameshwar Singh Bahadur vs Rameshwar Singh and Others

Agarwala, J.—These appeals arise out of three suits for rent. The question of law which arises in each of them is the same. In each case, the appellant is the decree-holder and the appeals arise out of applications for execution of decrees for rent. After the applications for execution had been made the judgment-debtors made an application to the Collector for reduction of the arrears. The application purported to be u/s 16, Bihar Restoration of Bakasht Land and Reduction of Arrears of Rent Act, 1938. On this application for reduction of arrears being made the execution proceedings were stayed. The Collector reduced the arrears for the years 1342 to 1344. The decrees were for the arrears of rent for these throe years and the first three kists of 1345, but u/s 16 the Collector had no power to reduce the arrears beyond 1344. Having obtained an order for the reduction of rent, the judgment-debtors applied for the decrees to be altered in accordance with this order. The decree-holder objected. The first Court held that the order reducing the rent was made without jurisdiction but that the executing Court could give the judgment-debtors appropriate relief u/s 15(b) of the Act of 1938. The judgment-debtors appealed and the Court of appeal below has reversed the order of the first Court and overruled the objection of the decree-holder. In support of the appeal two grounds are urged on behalf of the decree-holder (1) that Section 16 of the Act of 1938 does not apply to a nakdi occupancy holding and (2) that even if Section 16 does apply to such a holding the arrears are liable to be reduced only on the ground stated in Section 18(4)(a) of the Act, that is to say, on the ground that the means and circumstances of the raiyat have been affected by a fall in prices during the period beginning with 1st January 1929, and ending with 31st December 1936.

The provisions of the law relevant to the questions which have been raised are contained in Sections 112 and 112A, Bihar Tenancy Act and in Sections 15 to 19 of the Act of 1938. Section 112, Tenancy Act, empowers the Provincial Government, on being satisfied that any landlord is demanding rents which have been illegally enhanced above those entered as payable in a record of rights, to invest a revenue officer with the power to settle all rents and with power, when settling rents, to reduce the rent if, in his opinion, the maintenance of existing rents would, on any ground, whether specified in the Act or not, be unfair or inequitable.

Section 112A, Tenancy Act, confers certain powers on the, Collector with regard to the cancellation and reduction of rents of occupancy holdings. Under Clause (a) he may cancel all enhancements of the rents of occupancy holdings made u/s 29 or under Clauses (a), (b) or (d) of Section 30, during a specified period. Clause (b) empowers the Collector to reduce the rent of any occupancy holding the rent of which has been commuted within a specified period. Under Clause (c) the Collector is authorised to order the partial or entire remission of the rent of an occupancy holding for such period as he considers reasonable on the ground that the soil of a portion or the whole of the holding has become temporarily or permanently deteriorated by a deposit of sand, by submersion under water or by any other specific cause, or on the ground that the landlord of the holding has failed to carry out his obligations in respect of irrigation. Clause (d) empowers a Collector to reduce the rent of an occupancy holding 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 existing rent, and Clause (e) empowers him to settle a fair rent in such cases, or classes of cashes, as may be specified in a notification issued by the Governor in that behalf. The provisions of Sections 112 and 112A, Tenancy Act, apply to the cancellation, reduction, remission and settlement of the rents of occupancy holdings. By the Act of 1938, provision was made for the reduction of arrears of rent.

In so far as it is material for the present case, Section 15 of the Act of 1938 is as follows:

(a) Where the rent of an occupancy holding has been settled or reduced u/s 112 or Clauses (a), (b), (d) or (e) of Section 112A, Bihar Tenancy Act...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....

(b) If the rent of an occupancy holding has not been settled or reduced under Sections 112 or 112A, Bihar Tenancy Act...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 Clauses (a), (b) or (d) of Sub-section (1) of the said Section 112A, Bihar Tenancy Act...if the raiyat had made an application under any of the aforesaid Clauses of the said Section 112A, Bihar Tenancy Act....

Clause (a), it will be observed, renders it necessary for a Court in which any suit or proceeding is pending for recovery of arrears of rent of an occupancy holding to give effect to an order made by a revenue officer u/s 112, Tenancy Act, or by the Collector under Clauses (a), (b), (d) or (e) of Section 112A of that Act. Clause (b) renders it necessary for a Court in which any suit or proceeding is pending for the arrears of rent of an occupancy holding to give the tenant such relief as he would I have been entitled to if rent had been settled or reduced u/s 112 or Section 112A, Tenancy Act, in cases where there has been no settlement or reduction under those sections. The material portion of Section 16 of the Act is in these words:

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.

Section 22 of the Act of 1938, provides that:

Every order passed by the Collector under this Aot 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.

The contention on behalf of the appellant is that Section 15 comprehends all occupancy holdings and, therefore, Section 16 does not apply to any such holding. In Sreekant Lal Vs. Ajodhya Singh and Others, a Division Bench of this Court held that Section 16 applies to a bhauli occupancy holding. Learned Counsel for the appellant was prepared to contend that that case was wrongly decided but as the present appeals are concerned with nakdi and not bhauli occupancy holdings it is not necessary to go into this question. Counsel, therefore, confined his argument to contending that Section 15 of the Act of 1938, comprehends all nakdi occupancy holdings and, therefore, Section 16 is not applicable to such holdings.

The argument at first sight appears to be plausible but a closer examination of the language and scope of Section 15 renders it less convincing. Section 15(a) debars the landlord of an occupancy holding from recovering arrears of rent at a higher rate than has been settled for the rent of the holding u/s 112 or Section 112A, Tenancy Act, where a proceeding under either of those Sections has resulted, in a settlement or reduction of the rent of a holding. Section 15(b) debars a landlord of an occupancy holding, the rent of which has not been settled or reduced in a proceeding u/s 112 or Section 112A, Tenancy Act, from recovering arrears of rent at a higher rate than would have been recoverable if the rent had been settled or reduced u/s 112 or Section 112A. Both these sub-sections 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 occupancy 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, 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.

The question, whether an occupancy raiyat against whom no suit pr proceeding is pending for recovery of the arrears of rent of his holding is entitled to make an application u/s 16, without having applied for settlement or the reduction of rent u/s 112A, Tenancy Act, does not arise in these appeals, and it is not necessary to express any opinion with regard to this question.

Be that as it may, however the application that was made u/s 16 in the present case was, in my opinion, not maintainable inasmuch as a proceeding is pending for recovery of the arrears of an occupancy holding, and therefore, the holding is one to which Section 15(b) applies and to which the application of Section 16 is excluded. The order of the appellate Court is set aside and that of the Munsiff restored. The appellant is entitled to his costs in this Court and in the Court below.

Shearer, J.

I agree.