Syed Mohammad Yasin vs Tara Mahton and Others

Imam, J.—In this appeal the plaintiff is the appellant. He brought a suit asking for a declaration that the reduction of rent allowed by the Revenue Officers u/s 112, Bihar Tenancy Act, in respect of the holding recorded in khata Nos. 14, 18 and 21 of village Shaikhopur Narsanda was illegal and not binding on him. By a notification dated 19th June 1937, the Government of Bihar invested certain Revenue Officers with the power to settle rents, and, when settling rents, to reduce rents u/s 112, Bihar Tenancy Act, (hereafter called the Act). On a petition filed by the respondents, a reduction of rent u/s 112 of the Act was made by the Assistant Settlement Officer, reducing the rent by 25 per cent. It appears that, subsequently, the Settlement Officer further reduced the rent by six annas in the rupee. The Munsif dismissed the suit with reference to the order of reduction by 25 per cent, but decreed it with respect to the order of reduction by six annas in the rupee. The Subordinate Judge in appeal reversed, the decision of the Munsif and dismissed the suit entirely, allowing the cross objection of the respondents against the decision of the Munsif decreeing the suit with respect to the order of reduction of rent by six annas in the rupee.

In order to appreciate the argument made on behalf of the appellant, it is necessary to state some further facts. It appears that on 7th February 1933, there was a compromise between the appellant and the respondents in a proceeding u/s 40 of the Act. On 22nd May 1934, a schedule was prepared by the revenue Court showing the extent of the commuted rent with the direction that it would take effect from 1st September 1933. It was pointed out that Section 40A of the Act directs that where the rent of a holding has been commuted u/s 40, it shall not be reduced for 15 years save on the ground of alteration of the area of the holding or under Clauses (b), (c) or (e) of Sub-section (1) of Section 112A. Before the Bihar Tenancy (Amendment) Act 1937 (Bihar Act 8 of 1937), the words "or on the ground specified in Clause (a) of Sub-section (1) of Section 38" appeared in Section 40A of the Act instead of the words "or under Clauses (b), (c) or (e) of Sub-section (1) of Section 112A." It was urged that s, 40A of the Act expressly prohibited reduction of rent which had been commuted u/s 40 before the expiry of 15 years from the date on which the order commuting the rent was to take effect except on the grounds mentioned in that section. Mr. Nawal Kishore Prasad No. 1 appearing for the appellant submitted that the reduction of rent in this case had not been made on the ground of alteration in the area of the holding. Indeed, that appears to be the admitted position. He urged that the only other ground on which there could be a reduction of rent within 15 years was under Clauses (b), (c) or (e) of Sub-section (1) of Section 112A. Section 40A however, does not provide for reduction of rent u/s 112 as one of the grounds on which reduction could be made within 15 years. As the Revenue Officers had reduced the rent u/s 112 and not u/s 112A, such a reduction was made without jurisdiction. The learned advocate for the appellant contended that this was not a case of improper exercise" of jurisdiction but one of want of jurisdiction. He further pointed out that in June 1937, Section 112A formed no part of the Act whereas Clause (a) of Sub-section (1) of Section 38 did. In short, his argument comes to this that in view of the provisions of Section 40A prohibiting reduction of rent commuted u/s 40 within 15 years except under the conditions mentioned therein, the Revenue Officers had no jurisdiction to reduce the rent u/s 112 of the Act. On behalf of the appellants it was also submitted that in any event the Settlement Officer had no jurisdiction to further reduce the rent to the extent of 6 annas in the rupee when the appellant had withdrawn his objection before him to the reduction made by the Assistant Settlement Officer. It was further contended on behalf of the appellant that, even assuming that rent could be reduced u/s 112 of the Act, the notification dated 19th June 1937, of the Government of Bihar published in the Bihar Gazette really directed reduction of rent which had been fixed between the years 1920 and 1932. As the rent in this case had been commuted in 1933 the Revenue Officers had no jurisdiction to reduce the rent which had been commuted after 1932. The learned advocate for the appellant laid emphasis on para. 1 of the notification which reads thus:

Whereas it appears to the Government of Bihar that between 1920 and 1932 in fixing or enhancing money rents and in commuting produce rents in the district of Patna regard, was had to the "exceptionally high prices of staple food crops which prevailed in and about that period, and that in view of the present exceptionally low level of prices, the rents so fixed may now be unfair and inequitable and whereas the Government of Bihar is satisfied that in the interests of the local welfare it is necessary to exercise the powers conferred on it by Section 112, Bihar Tenancy Act.

Mr. Nawal Kishore Prasad No. 1 reads these words to mean that it was only the rents fixed between the years 1920 and 1932 which were authorised by the Government of Bihar to be reduced. He laid particular emphasis on the words, "the rents so fixed may now be unfair and inequitable." These words according to him meant that it was only the rents fixed between the years 1920 and 1932 that were directed to be settled and, if necessary, be reduced. The learned advocate for the respondents contended that the Revenue Officers acted with jurisdiction, and, if in any way they acted improperly in the exercise of their jurisdiction, it was beyond the competence of the Civil Courts to give a declaratory decree of the kind asked for by the plaintiff. He pointed out that the notification of the Bihar Government dated 19th June 1937, did confer on the Revenue Officers concerned the power to settle all rents and, when settling rents, to reduce them if, in their opinion, the maintenance of the existing rents would be unfair, and inequitable. He urged that Section 112 of the Act was a general provision, uncontrolled by Section 40A, conferring authority upon the Provincial Government to invest Revenue Officers with the power to settle all rents and reduce them if they were unfair or inequitable. He pointed out that Sub-section (2A) of Section 112 of the Act directs that a settlement of rents under that section shall be made in the manner provided by Sections 104 to 104J (both inclusive) of the Act. He drew our attention to the proviso to Section 104A which reads as follows:

Provided that, in making any such settlement, regard shall be had to the principles laid down in Sections 6 to 9 (both inclusive), 27 to 36 (both inclusive), 39, 43, 50 to 52 (both inclusive), Clauses (b), (c) and (d) of Sub-section (1) of Section 112A, Section 180 and Section 191.

Sub-section (2A) of Section 112 and the proviso to Section 104A read together clearly indicate that a Revenue Officer, vested with the powers u/s 112, could reduce the rent which had been commuted u/s 40. Clause (b) of Sub-section (1) of Section 112A, specifically authorised reduction of rents commuted u/s 40 or by agreement between the tenant and the landlord of such holding. It was also urged in the alternative, on behalf of the respondents that, as the rent in this case had been commuted according to compromise arrived at between the landlord and the tenant, it could not be said that such a commutation was one u/s 40 of the Act. Accordingly, the provisions of Section 40A were inapplicable to the case. Therefore, even if Section 40A should at all be read as controlling Section 112, it was irrelevant for the purposes of this case. As for further reduction of rent to the extent of 6 annas in the rupee by the Settlement Officer, it was pointed out that u/s 104E, Sub-section (2), the Revenue Officer could, on his own motion, revise any rent, entered in a Settlement Rent-roll before it was submitted to the confirming authority u/s 104F.

The learned advocate for the respondents contended that the notification dated 19th June 1937 of the Government of Bihar u/s 112 of the Act did not limit the authority of the Revenue Officer concerned to the reduction of rents fixed between the years 1920 and 1932 only. There was a general authority conferred on the Revenue Officers concerned to settle all rents. I have given the respective submissions made before us on behalf of the parties as far as possible in detail. It is obvious that the meaning of the notification of the Government of Bihar dated 19th Jane 1937, u/s 112 of the Act should be construed in the first instance before dealing with the other aspects of the arguments made before us. In my opinion, para. 1 of the notification of the Government of Bihar dated 19th June 1937 merely declared the reasons which caused the Government to invest certain Revenue Officers with the power to settle rents u/s 112 of the Act. The words "so fixed" undoubtedly refer to the period between the years 1920 and 1932; but the latter parts of para. 1 gives another reason why the Government of Bihar decided to invest certain Revenue Officers with the power to settle rents u/s 112. The words,

and whereas the Government of Bihar is satisfied that in the interests of the local welfare it is necessary to exercise the powers conferred on it by Section 112, Bihar Tenancy Act

clearly indicate that independent of all considerations regarding fixing, enhancing or commuting of rents between the years 1920 and 1932, the Government of Bihar felt satisfied that in the interests of the local welfare action should be taken u/s 112 of the Act to settle rents. This construction of para. 1 of the notification is justified, in, my opinion, by the concluding portion of what may be called the directory part of the notification. The notification after having declared the reasons for action u/s 112 and after having named certain Revenue Officers who were invested with the power to settle rents states that they may, when settling rents, reduce them in the cases of money rents of occupancy raiyats now payable or being paid which became payable or commenced to be paid on or after 1st day of January 1920 and on or before 31st day of December 1933.

This contention, on behalf the appellant, therefore, must be negatived. Section 40A of the Act undoubtedly prohibits reduction within 15 years from the date on which the order commuting rent u/s 40 takes effect save on the ground of an alteration of the area of the holding or under Clauses (b), (c) or (e) of Sub-section (1) of Section 112A. Does this mean that there can be no reduction of rent within 15 years u/s 112? If it be held that Section 40A overrides the provisions of Section 112 then there is much to be said for the contention that the Revenue Officers concerned bad no jurisdiction to reduce the rent. I am, however, inclined to take the view that Section 112 is quite independent of Section 40A. I think that Section 40A intended to prohibit further reduction of rent within 15 years at the instance of the tenant just as much as it intended to prohibit enhancement of the rent within 15 years at the instance of the landlord when rent had been commuted u/s 40, except under certain conditions.

On the other hand. Section 112 is to be found in chapter 10 which deals with record of rights and settlement of rents. This chapter deals generally with matters concerning record of rights and settlement of rents and is self-contained. Section 113 (which is in chap. 10) even prohibits enhancement or reduction of rent once settled under this chapter before the expiry of a certain period except under the circumstances mentioned therein. In the matter of settlement of rents under this chapter, the Provincial Government was authorised by Section 112 in the interests of public order or of the local welfare to invest a Revenue Officer with the power to settle all rents and when settling rents to reduce them if, in his opinion, they were unfair or inequitable. Interest of public order or of local welfare is the foundation for the exercise of the Provincial Government''s authority to invest a Revenue Officer with such power. If Section 40A were to be read as overriding the provisions of Section 112 then although it may have become necessary in the interests of public order or of the local welfare to settle all rents, the Provincial Government would be powerless to render relief in the interest of public good. To read Section 40A in this manner would be to destroy the very purpose of Section 112. I think a fair reading of Section 112 must be that if it became necessary in the interests of public order or of the local welfare the Provincial Government had the authority to invest a Revenue Officer with the power to settle all rents without exception. The power which is vested in a Revenue Officer by Section 112 is not merely to settle ''rents'' but to settle ''all rents'' and the expression ''all rents'', I think, must be interpreted to include even rents which have been commuted u/s 40. Sub-section (2a) of Section 112 provides that a settlement of rents u/s 112, shall be made in the manner provided by Sections 104 to 104J (both inclusive.). The proviso to Section 104A enjoins that in making any such, settlement, regard shall be had to the principles laid down in various of the Act including Clauses (b), (c) and (d) of Sub-section (1) of Section 112A. Clause (b) of Sub-section (1) of Section 112A permits the reduction of rent of any occupancy holding which was commuted either u/s 40 or by agreement between the tenant and the landlord, between the 1st day of January 1911 and the 31st day of December 1936. I think, it must, therefore, be held that the Revenue Officers had jurisdiction to reduce the rent.

The contention on behalf of the respondents that the rent commuted in this case was not u/s 40 of the Act is invalid. Although the rent was reduced according to a compromise arrived at between the landlord and the tenants, the Revenue Officer drew up a schedule u/s 40 wherein it was specifically stated that it would take effect from 1st September 1933. The compromise may have been the basis as to the extent of the commutation but the order commuting the rent was one made u/s 40 of the Act. The further reduction by way of revision of the Settlement Rent-rolls made by the Settlement Officer to the extent of 6 annas in the rupee could have been made by him on his own motion u/s 104E, Sub-section (2) of the Act. Even if the appellant had withdrawn his objection to the reduction of rent by the Assistant Settlement Officer, the-Settlement Officer was not thereby prevented from dealing with the matter u/s 104E. The proviso to Section 104E, however, states that no revision of an entry in a Settlement Rent-roll shall be made until reasonable notice has been given to the-parties concerned to appear and be heard in the matter. It has not been established to-my satisfaction that this proviso was not complied with. Even assuming that the Settlement Officer revised the rent settled by the Assistant Settlement Officer without giving an opportunity to the parties to appear and be heard, it would at best be a case of exercising jurisdiction illegally and not a case of acting without jurisdiction. As was pointed out in the cases in Central Co-operative Bank Ltd. Vs. Dasrath Pandey, and Sreekant Lal Vs. Ajodhya Singh and Others, a Court has jurisdiction to decide wrong as well as right and that there is a confusion between the existence of jurisdiction and the exercise of jurisdiction. A Civil Court, therefore, cannot in the circumstances of this case give a, declaration that the reduction of rent to the extent of 6 annas in the rupee by the Settlement Officer was without jurisdiction. Having regard to the view which I take as to the scope of Section 112 of the Act, this appeal must be dismissed with costs.

Fazl Ali, C.J.

I am also of, the opinion that this appeal should be dismissed with costs. Section 40A, Bihar Tenancy Act, provides that where the rent of the holding has been commuted u/s 40, Bihar Tenancy Act, it shall not be reduced for 15 years save on the ground of alteration of the area of the holding or under Clauses (b), (c) or (e) of Sub-section (1) of Section 112A. It is contended that as in the present case the rent has not been reduced u/s 112A, the order of the Revenue Officer reducing it is ultra vires. What appears to have happened in this case is that the rent was reduced u/s 104A which provides that in making settlement of rent, under that section regard shall be had to the principles laid down in certain sections of the Bihar Tenancy Act and also to Clauses (b), (c) and (d) of Sub-section (1) of Section 112A. If therefore the rent has been reduced according to the principles laid down under any of the specific clauses of Section 112A under which it is permissible to reduce rent u/s 40A, it is difficult to hold that the provisions of Section 40A have been violated.

In my opinion the rent having been reduced according to the principles laid down in the clauses mentioned in Section 40A, there was substantial compliance with the requirements of, that section and-the order of the Revenue Officer cannot be said to be without jurisdiction.