Rawat v. State of Rajasthan — 1957 DIGILAW 86 (RAJ)

Wanchoo, C.J.—This is an application under Art. 226 of the Constitu-tion by Rawat and 141 others against the State of Rajasthan the Tehsildar of Phalodi, and Shri Vikramsingh and others in connection with proceedings under sec. 4-A of the Rajasthan Produce Rents Regulating (Second Amendment) Act (No. XXII) of 1953 (hereinafter called the Act). 2. The case of the applicants was briefly this— The applicants are residents of village Bhaniyana in Tehsil Pokran, and are tenants of Shri Vikramsingh and other Jagirdars of Pokran. They say that they are liable to pay one-eighth share of the produce of Bajra, Moong, Mouth, Til and Juar as rent to the jagirdar, but that no share of the produce of Guar is payable by them. The share is determined by estimate or appraisement of the standing crop, which is known as Kunta in local parlance. They further say that they were prepared in the year 1953 to have the estimate or appraise-meat made according to the above share ; but the jagirdars demanded a greater share, i.e. 2/13ths in respect of Bajra, and one-sixth in respect of Moong, Mouth, Til, Juar and also Guar. Because of this dispute between the jagirdars and the applicants, the jagirdars of Pokran made an application to the Tehsildar on the 22nd December, 1933, under secs. 4-A and 4-B of the Act. In this application, the jagirdar said that he was entitled to 2/13ths share of Bajra and one-sixth share of other grain, bat the 139 tenants against whom this application was made were not willing to have the appraisement made, and were dishonestly removing the crop. Consequently, it was prayed that the Tehsildar should come and make the appraisement. 3. The Tehsildar thereupon Issued notices to the tenants fixing 24th December, 1953, as the date for making the appraisement on the spot. Only a few tenants were served for the 24th of December, and therefore the Tehsildar issued further notices on the 24th of December for service on the remainder. Eventually the Tehsildar made the appraisement in connection with the crop of the 139 tenants between the 25th and the 28tn of December, 1953. Only a few tenants were served for the 24th of December, and therefore the Tehsildar issued further notices on the 24th of December for service on the remainder. Eventually the Tehsildar made the appraisement in connection with the crop of the 139 tenants between the 25th and the 28tn of December, 1953. During these proceedings, a number of tenants made an application to the Tehsildar on the 28th of December, 1953, in which they said that the jagirdars share of the crop was only one-eighth, except in the case of Guar where the jagirdar was entitled to no share at all. It was also said that the tenants were prepared to agree to an appraisement according to this share and not otherwise. The Tehsildar ordered the tenants, who had made this application, to produce evidence in support of their case on the 2nd of January, 1954. The applicants case is that that they were not informed that they were to produce evidence in support of their application on the 2nd of January, 1954. Consequently, they did not appear at Phalodi Tehsil on the 2nd of January Thereupon, the Tehsildar passed an order recording that the tenants were absent, and called upon the jagirdar to substantiate his claim as to the share he was entitled to get. 4. On the 4th of January ex parte evidence was taken, and the Tehsildar held in favour of the share claimed by the jagirdar, and passed an order to the effect that the jagirdar was entitled to the price of the grain according to the present rate in accordance with the appraisement nude by him between the 25th of December and 28th of December, 1953, It may be mentioned that no decrees were apparently prepared and signed by the Tehsildar in pursuance of this order fixing the actual sum due from each of the 139 tenants. 5. The applicants filed an appeal against the order of the 4th of January, 1954, before the Collector of Jaisalmer. That was dismissed on the ground that no appeal lay. The applicants then went in second appeal to the Additional Commissioner. That appeal was also dismissed on the ground that no appeal lay. The applicants then filed a revision "before the Board of Revenue. That was dismissed on the ground that no appeal lay. The applicants then went in second appeal to the Additional Commissioner. That appeal was also dismissed on the ground that no appeal lay. The applicants then filed a revision "before the Board of Revenue. The Board held that it had no jurisdiction to interfere in revision, on the basis of an unreported judgment of this Court, In re Motisingh vs. Revenue Board, dated 5.5.1952. Thereupon, the present application was filed in this Court. 6. The applicants" contentions before us are three-fold— (1) that the Tehsildar had no jurisdiction to do what he actually did in this case, (2) that the principles of natural justice were violated, and therefore the order of the Tehsildar, even if he had jurisdiction, should be set aside, (3) that sec. 4-B of the Act was hit by Art. 14 of the Constitution inasmuch as two different procedures were prescribed when the matter was dealt by the Tehsildar, and when it was to be dealt by an officer deputed by the Tehsildar. 7. The application has been opposed mainly on behalf of the jagirdars Shri Vikramsingh and others. No reply has been filed on their behalf, but their contention is that that the Tehsildar had jurisdiction and that there was no violation of the principles of natural justice, and that sec. 4-B of the Act is not discriminatory. 8. We shall first consider the question of jurisdiction. The point that has to be considered in this connection is the extent of the powers of the Tehsildar in a case arising under sec. 4-A of the Act. We may in this connection set down the relevant portion of sec. 4-A, which is as follows— "(1)" When the rent is payable by a division of the produce or is based on an estimate or appraisement of the crop— (a) if either the landholder or tenant neglecti to attend at the proper time. or (b) if there is a dispute about the division, quantity or value of the produce, the Tehsildar may, on the application of either party, proceed to make or depute an officer to make the division, estimate or appraisement: .................." 9. Then follows sec. 4-B which provides the procedure. Under sub-sec. (1), the Tehsildar has to issue a written notice to the opposite party to attend on a date, time or place specified in the notice. Then follows sec. 4-B which provides the procedure. Under sub-sec. (1), the Tehsildar has to issue a written notice to the opposite party to attend on a date, time or place specified in the notice. Thereafter, if the Tehsildar decides himself to make the division, estimate or appraisement, he has to go to the place specified in the notice on the date so fixed, hear the parties, record their objections, and inspect the produce or the crop. The Tehsildar has then to decide all objections and divide the produce in such a manner as he thinks best and most equitable. Where, however, the rent is based on an estimate or appraisement of the crop, the Tehsildar has to make an estimate of the value of the crop, determine the amount to be paid and pass an order for the payment of such amount and costs, if any, and such an order has the effect of decree of arrears of rent. 10. Where, however, the Tehsildar deputes another officer to make a division or an appraisement, a slightly different procedure is provided. This officer has to appoint assessors with him in the division of produce or in the appraisement of the crop He has to record the opinion of the assessors before making what is called his award. Clause (vi) of sub-sec. (4) of sec. 4B provides that if it is a case of division of the produce, and the parties agree to the manner of division proposed by the officer, the division shall be made accordingly. But if the parties do not agree to such manner of division, and in all cases in which the rent is based on an estimate or appraisement of the crop, or if it is claimed that no rent is payable, the officer shall make an estimate of the value of the produce or crop and determine the amount to be paid, and submit his report to the Tehsildar. Thereafter, the Tehsildar under cl. (vii) issues notice to the parties to file objections before him within one week. The Tehsildar, thereafter, after hearing objections and making further enquiry as may be necessary, confirm, modify or set aside the award, and, if any amount is found due, pass an order for the payment of such amount and costs, if any, and such order shall have the effect of a decree for arrears of rent. 11. The Tehsildar, thereafter, after hearing objections and making further enquiry as may be necessary, confirm, modify or set aside the award, and, if any amount is found due, pass an order for the payment of such amount and costs, if any, and such order shall have the effect of a decree for arrears of rent. 11. The most important question is the extent of the power of the Tehsildar in a case under secs. 4A and 4B of the Act. The contention on behalf of the applicants is that the Tehsildar has no power to decide any dispute between the landlord and the tenant as to the share which the landlord is to gel. It is urged that such a dispute amounts to a dispute a to determination of rent which is provided under Group B of the First Schedule of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. I) of 1915 which was in force at that time, and under which such a dispute has to be tried out in a suit which can only be tried by an Assistant Collector. It is urged that secs. 4-A and 4B of the Act were not meant to modify the Revenue Courts Procedure and Jurisdiction Act, and were only confined to cases of division and appraisement where there was no dispute as to the share which the landlord would get. 12. We are of opinion that there is force in this contention of the applicants, and the Tehsildar has no jurisdiction to decide in these proceedings the share of rent to which the landlord will be entitled if there is any dispute about it. The jurisdiction is conferred on the Tehsildar under sec. 4A, and that jurisdiction is merely this— Where the rent is payable by a division of the produce or an appraisement of the crop, the Tehsildar can proceed to make, or depute an officer to make, a division, estimate or appraisement only under two conditions, namely where either the landlord or tenant neglects to attend at the proper time, or if there is a dispute about the division, quantity or value of the produce. Cls. (a) and (b) of sub-sec. (1) of sec. 4A, and sec. 4B, do not, in our opinion, contemplate that the Tehsildar would decide the share of the produce payable as rent under sec. Cls. (a) and (b) of sub-sec. (1) of sec. 4A, and sec. 4B, do not, in our opinion, contemplate that the Tehsildar would decide the share of the produce payable as rent under sec. 4-A. Both these clauses in our view assume that there is no dispute as to the share which the landlord is to get from the tenant, and the dispute is only about the neglect of one party or the other to be present for purposes of appraisement, or about the actual division or the quantity or value of the produce. As soon as there is a dispute between the landlord and the tenant about the share whith the landlord should receive as rent, a question of determination of rent arises, and that can only be decided by an Assistant Collector under item 15 of Group B of the First Schedule of the Rajasthan Act No. I of 1951, and now under item 6 of Part I of the Third Schedule of the Rajasthan Tenancy Act (No. III) of 1955. The jurisdiction to decide this matter is in the Assistant Collector, and not in the Tehsildar. There is nothing in sec. 4A of the Act which, to our mind, gives jurisdiction to the Tehsildar, if a dispute is raised as to whether the share is say one-sixth or one-eighth, to decide that dispute. It could hardly have been the intention of the legislature when it enacted sec. 4A of the Act to amend item 15 of Group B of the First Schedule of the Rajasthan Act No, I of 1951. It is also remarkable that no appeal is provided against proceedings under secs. 4A and 4B, and that also shows that the scope of proceedings under these secs, was a limited one namely the Tehsildar was to go to the spot or send an officer to the spot, and make the division or appraisement of the crop. In such a case, one could understand there being no appeal provided against the findings of an officer who had visited the spot and seen the produce or the crop. But so far as a suit for determination of rent is concerned, the law provided that it should be tried out by an Assistant Collector, and there should be the usual appeals. The only exception that is made in sub-sec. (3), and clause (vi) of sub-sec. (4) of sec. But so far as a suit for determination of rent is concerned, the law provided that it should be tried out by an Assistant Collector, and there should be the usual appeals. The only exception that is made in sub-sec. (3), and clause (vi) of sub-sec. (4) of sec. 4B of the Act is that if it was claimed that no rent was payable, the Tehsildar could still make an estimate of the value of the crop, and determine the amount payable. The reason seems to have been that where it is a case of payment of rent by division of produce or by appraisement, the objection of a tenant to the effect that no rent was payable, (i.e. that it had been paid) would be frivolous, and the Tehsildar should disregard such a plea. In any case, there is nothing in secs, 4-A and 4-B which gives power to the Tehsildar to decide a dispute as to the actual share of the produce or of the crop which the landlord would be entitled to receive. Such a dispute would immediately be a dispute as to determination of rent and would have to be decided by an Assistant Collector under the law which was then in force. We may also point out that the position has been made perfectly clear under the Rajasthan Tenancy Act of 1955 under secs. 148 and 149 which deal with a similar state of affairs. Sub-sec. (8) of sec. 149 makes it clear that in case any party objects that the rent is not based on an estimate or appraisement of the crop, or a divi-sion of the produce, or that no amount is to be paid, or that the proportion of produce claimed by the landholders as rent is higher than is really due, the Tehsildar shall not decide such objection, but shall direct the parties to get their rights decided by a court of competent jurisdiction, and in such cases the Tehsildar may on the application of a landholder direct the tenant to furnish a bond, with or without sureties to pay the rent according to the final decision of the suit, within one month of such decision. As we have said before, sec, 4A makes only one difference from the law as it now stands under sub-sec. (a) of sec. As we have said before, sec, 4A makes only one difference from the law as it now stands under sub-sec. (a) of sec. 149, namely that it allowed the Tehsildar, even where it was objected that no rent was payable, to pass a decree. That, as we pointed out above, might very well have been due to the fact that the case being of payment of rent by division or appraisement of crop, an objection that no rent was payable, meaning thereby that the rent had been paid, might have been considered frivolous. But apart from this, secs. 4-A and 4-B, as they stand, do not, in our opinion, give any power to the Tehsildar to decide a dispute as to the share of the rent claimed by the landholder. It is remarkable in this connection to note that the jagirdar, when he made his application on the 22nd of December, 1953, did not say that there was a dispute as to the share of produce. All that he said was that these tenants were not agreeable to have the appraisement made, and the application was really under clause (a) of sub-sec. (1) of sec. 4-A. It is only the tenants who raised the dispute as to the share of the produce payable to the jagirdar when the Tehsildar reached the spot. We are, therefore, of opinion that inasmuch as a dispute was raised by the tenants as to the share due to the jagirdar, the Tehsildar had no jurisdiction to pass a decree after appraisement. We should not be taken to say, however, that as soon as such a dispute is raised, the Teh-sildar should not make the appraisement. He certainly could make the appraisement after having seen the crop, but he cannot pas» a decree as is said to have been done in this case. The appraisement, which the Tehsildar makes, can be used as evidence in a suit for determination of rent, and arrears of rent following thereon. Inasmuch as the Tehsildar in this case purported to pass a decree in favour of the jagirdars according to the price of the amount found by him on appraisement, he had no jurisdiction to do so. The appraisement, which the Tehsildar makes, can be used as evidence in a suit for determination of rent, and arrears of rent following thereon. Inasmuch as the Tehsildar in this case purported to pass a decree in favour of the jagirdars according to the price of the amount found by him on appraisement, he had no jurisdiction to do so. Of course, the formal defect is there that the Tehsildar never calculated the exact amount due, and it is not known how the exact amount due from each tenant which the jagirdar later tried to execute was found out. It is enough to point out that even where there is no dispute as to the share due to the landholder, it is the Tehsildar who has to determine the amount to be paid on appraisement. He cannot pass a decree of the type passed in this case, namely that the landholder would get the price of his share of the grain according to the prevailing market price. The Tehsildars decree has to be specific, and he has to State actual sum of money due to the landholder after he has calculated the value of the produce of the share of the jagirdar in the best manner possible. 13. Another defect in the appraisement in this case, which also concerns the jurisdiction of Tehsildar under secs.4A and 4B is this. Sec. 4-B contemplates that the Tehsildar or the officer, deputed by him, would go to the spot and inspect the produce or the standing crop and either divide the produce or make an appraisement or estimate of the standing crop. It is no part of she jurisdiction. of the Tehsildar to decide whether any part of the crop had been removed, and to take that into account in maliing the division or making his appraisement. What secs. 4A and 4B contemplate is that the Tehsildar should deal with the produce actually found by him, and divide it according to the shares of the landholder and the tenant, or make an appraisement of the standing crop which he finds on the spot, and calculate its value, and then find out the amount due as the sha?e of the landholder, and pass an order accordingly. In the case of many of the tenants, however, the Tehsildar has not only considered the crop or the produce which he found at the spot, but also the grain supposed to have been removed or eaten up by the tenants. It is enough to point out that the jurisdiction of the Tehsildar under secs. 4-A and 4B is confined only to divide the produce found by him, or to appraise the crop found standing by him, and no more. If he goes beyond that, as he has done in the case of many of the tenants, he is acting beyond his jurisdiction. 14. The second point that has been urged is that the principles of natural justice have been voilated. We do not think it necessary in this connection to go into the matter in great detail, because the application must be allowed in view of what we have said on the question of the jurisdiction of the Tehsildar. But we do think it necessary to point out that each case of appraisement against a tenant is a separate case, and should be dealt with separately, and a separate record with a separate number should be assigned to each case That will avoid the confusion which has occurred in this case, and has in some cases certainly resulted in violation of the provisions of the Act which provide for notice, and notice to the opposite party is also one of the principles of natural justice. Sec. 4-B provides that the Tehsildar shall issue a notice to the opposite party asking him to attend on a certain date and at a certain place and time. As 139 cases were mixed up into one, there has been a lot of confusion in this connection. We understand that 17 out of the present applicants were not served at all. but the Tehsildar has proceeded on the basis as if they were served. 64 were served, while in the case of 26 it is doubtful whether they were served before the date fixed. As we have said earlier, many of the tenants could not be served for the 24th, and notices were issued then for the 25th of December. But these notices were were returned on the 2nd of January, and the officer returning the notices did not specify on which date he had served them. As we have said earlier, many of the tenants could not be served for the 24th, and notices were issued then for the 25th of December. But these notices were were returned on the 2nd of January, and the officer returning the notices did not specify on which date he had served them. The contention of the applicants is that the notices were served days alter the appraisement had been made. All this confusion would have been avoided if the case of each tenant had been separately registered as one case and separately dealt with. This is the intention of sec, 4-A, and this is what the Tehsildar should always do. 15. Another point, which was pointed out in this very connection, is that the notice issued by the Tehsildar was also defective. Section 1-B requires that the notice should tell the opposite-party the date, time and place where he should attend. The Tehsildar, in his order of 22nd of December, 1953, said that he would be at Boniyana on the 24th of December, 1953, for making appraisement, and the tenants should file objections on the spot before him. The first defect in the notice is that the time was not mentioned. It is also urged that though the tenants were directed to be present at the spot, namely at their fields, on the 24th of December, the Tehsildar never went to the tie fields on that day. We need not pursue this matter further except to say that there is a good deal of force in the contention of the applicants that the service of the notice on many of them was perfunctory, and the Tehsildar assumed their absence without taking care to see whether they had been properly served or not. 16. The last point, that has been urged, is that the difference in procedure when the Tehsildar himself goes to the spot and when he sends an officer is bad, and is hit by Art. 14. So far as that is concerned, it is enough to say that the objection has no force. Obviously when the Tehsildar goes to the spot for deciding the limited question which alone he has jurisdiction to decide under secs. 4-A and 4-B of the Act, the law leaves it to him to decide it as best as he can on the spot after notice to parties and hearing their objections. Obviously when the Tehsildar goes to the spot for deciding the limited question which alone he has jurisdiction to decide under secs. 4-A and 4-B of the Act, the law leaves it to him to decide it as best as he can on the spot after notice to parties and hearing their objections. Where, however, he sends an officer subordinate to him the law provides a procedure which this officer has to follow. The decision of this officer is not final. He has to make a report which is in the nature of an award to the Tehsildar. The Tehsildar then issues notice to the parties on the report, and after hearing the objections of the parties to the award decides the matter as best as he can. In effect, therefore, there is no difference between the procedure provided for the Tehsildar in the one case or the other. It is only so far as the subordinate officer is concerned that a certain difference is made because he is not the person who will give the final decision which is in the hands of the Tehsildar. Where the Tehsildar goes to the spot and appraises the crop, the law did not think it necessary that he should be assisted by assessors ; but where he sends a subordinate officer the law thought it necessary that there should be assessors to help this subordinate officer and also to help the Tehsildar who will make a decision without going to the spot and seeing the produce or the crop. The difference in the procedure in the circumstance is obviously justifiable as a matter of classification, and cannot, in our opinion, be hit by Art. 14 of the Constitution. 17. Lastly, it was urged on behalf of the jagirdar that the applicants should have come to this Court immediately alter the Tehsildars order of January, 1954, and should not have wasted time in going in appeal to the Collector, second appeal to the Commissioner and in revision to the Board. 18 It is true that no appeal is provided against an order under sec. 4B. In the Marwar Tenancy Act of 1949, which was in force in 1953 so far as substantive law is concerned, an appeal is provided in item 7 of Group C of the Second Schedule to the Act. 18 It is true that no appeal is provided against an order under sec. 4B. In the Marwar Tenancy Act of 1949, which was in force in 1953 so far as substantive law is concerned, an appeal is provided in item 7 of Group C of the Second Schedule to the Act. In the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. I) of 1951, which was also in force, and dealt with procedure only, there was an appeal under item 10 of Group E of the First Schedule, but that appeal was of a circumscribed nature in favour of the tenant. The applicants are tenants, and it is they who went in appeal. It may be that they might have been advised that an appeal was possible. In the circumstances, we are not prepared to penalise them for the delay that has taken place on account of the appeals that they filed. 19. We may also in passing point out that the learned Members of the Revenue Board were not right in saying that they had no power in this case. Reliance in this connection was placed on an unreported judgment of this Court in Motisingh vs. Revenue Board (D.B. Civil Misc. Writ No. 74 of 1951). We have looked into that judgment. All that we need say is that the judgment does not deal with the powers of the Revenue Board under sec. 12 of the Rajasthan Board of Revenue Ordinance (No. XXII) of 1949 which was then in force. In that case, this Court dealt with sec. 11 (2) of the Ordinance. The Board has, however, the power of general superintendence and control over all other revenue courts and officers under sec. 12 of the Ordinance which was not dealt with in that case at all. Whether the Tehsildar acting under sec. 4A is a court or an officer, the Board has power of superintendence over him under sec. 12, and can interfere with his orders in appropriate cases. The Board was, therefore, not right in saving that it had no powers of interference at all, though there may be no power of revision as such under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act But even that would depend upon whether the Tehsildar in proceedings under sec. 4A was a court. The Board was, therefore, not right in saving that it had no powers of interference at all, though there may be no power of revision as such under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act But even that would depend upon whether the Tehsildar in proceedings under sec. 4A was a court. If he was the Board would have power even under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act of 1931 under sec. 26 to call for the record and correct errors of jurisdiction. The delay, therefore, which has occurred in this case, has been sufficiently explained, and we should give relief to the applicants in the circumstances when we are satisfied that the Tehsildar has clearly exceeded his jurisdiction. 20. We, therefore, allow the application, and set aside the order of the Tehsildar, which has in effect passed a decree for arrears of rent against these applicants. The parties will have to get their dispute as to the share of the produce payable to the landholder decided in a proper court according to law. In view however of the fact that the implications of the law as contained in secs. 4-A and 4-B were not quite clear, we order parties to bear their own costs of this proceeding.