JUDGMENT-The short question that arises in this petition under Article 227 of the Constitution is whether in a suit filed by the landlord against the tenant for recovery of arrears of rent in respect of land to which the provisions of sections 43A and 438 of the Bombay Tenancy and Agricultural Lands Act, 1948, (hereinafter referred to as the Act) are applicable, the civil Court is competent to make a reference to the Mamlatdar under section 85A of the Act to determine the reasonable rent of the land retrospectively for the years for which the rent is claimed by the landlord and the Mamlatdar is competent to determine the reasonable rent accordingly. 2. The petitioner is a tenant and the respondents are the landlords of Survey No.2/1 admeasuring 11 acres assessed at Rs. 18.59 of village Undirwadi, Taluka Yeola in Nasik district. The respondents filed Civil Suit No. 56 of 1962 and 84 of 1967 in the Court of the Civil Judge (Junior Division), Yeola, claiming arrears of rent for the years 1955-56 to 1961-62 and 1963-64. They claimed rent at the rate of Rs. 500 per annum which was the agreed rent. By his written statement in both the suits, the petitioner raised the contention that the agreed rent was excessive and that he was not liable to pay rent more than the reasonable rent and that the issue of determination of the reasonable rent of the suit land for these years be referred to the Tahsildar under section 85A of the Act. There is no dispute between the parties that the suit land is a sugarcane land to which the provisions of section 43A are applicable. Two separate references were made to the Tahsildar in the two suits and both the references were decided by the Tahsildar by a common order holding that the reasonable rent of the suit land for the years in question is Rs. 1,300 per annum. This order of the Tahsildar was confirmed in appeal and in revision filed before the Revenue Tribunal. The petitioner has filed this Special Civil Application under Article 227 of the Constitution challenging the order passed by the Revenue Tribunal. 3. Mr. Rege, the learned counsel appearing for the petitioner, did not challenge the concurrent finding of fact of the three authorities below that the reasonable rent of the suit land for the years in question is Rs. The petitioner has filed this Special Civil Application under Article 227 of the Constitution challenging the order passed by the Revenue Tribunal. 3. Mr. Rege, the learned counsel appearing for the petitioner, did not challenge the concurrent finding of fact of the three authorities below that the reasonable rent of the suit land for the years in question is Rs. 1,300 per annum. However, he contends that the Tahsildar had no jurisdiction to fix reasonable rent under section 43B retrospectively. He submits that section 43B which provides for determination of reasonable rent of a sugarcane land does not confer jurisdiction on the Mamlatdar to fix the rent for past years and that such a determination must necessarily be prospective from the date of application for fixation of rent before the Mamlatdar. According to him, so long as the tenant does not dispute the reasonableness of the agreed rent he is bound to pay rent at the agreed rate, nor can the landlord claim higher rent till such a dispute is raised by either the tenant or the landlord. His submission is that the orders passed by the three authorities below fixing the rent retrospectively are without jurisdiction. 4 Chapter III-A which was inserted in the principal Act by Bombay Act XIII of 1956 which came in force on August 1, 1956, contains special provisions for lands held on lease by Industrial or Commercial Undertakings and by certain persons for the cultivation of sugarcane and other Notified Agricultural Products. It is not disputed before me that the provisions of this chapter are applicable to the suit land as it was leased out to the petitioner for the cultivation of sugarcane. In view of the provisions of section 43A, several other provisions of the Act including sections 8 and 9 relating to the liability of the tenant to pay particular amount of rent to the landlord are not applicable to sugarcane land. Section 8 inter alia provides that the rent shall not exceed five times the assessment payable in respect of the land or twenty rupees per acre, whichever is less, and shall not be less than twice such assessment. Section 8 inter alia provides that the rent shall not exceed five times the assessment payable in respect of the land or twenty rupees per acre, whichever is less, and shall not be less than twice such assessment. Section 9, inter alia, provides that subject to the maximum and minimum limits of rent fixed under section 8, the Mamlatdar shall for each village or group of villages or for any area in such village or group, within his jurisdiction, fix the rate of rent payable by a tenant for the lease of different classes of land situate in such village, or group of villages, or areas, as the case may be. Section 9A makes a further provision regarding the quantum of rent payable by the tenant to the landlord subject to the maximum and minimum fixed under section 8. These provisions not being applicable to leases for cultivation of sugarcane, ordinarily a tenant would be liable to pay rent as agreed between him and the landlord. However, a special provision has been incorporated which is contained in section 438 regarding the liability of the tenants to pay reasonable rent as may be determined by the Mamlatdar and such amount of reasonable rent replaces the agreement between the parties. Section 43B provides: "Notwithstanding any agreement, usage, decree or order of a Court or any other authority, in the case of any land to which section 43A applies, the rent payable shall be reasonable rent as determined under the following clauses :- (1) A landlord or a tenant of such land may make an application in writing to the Mamlatdar for the determination of the reasonable rent in respect of such land. (2) On receipt of such application, the Mamlatdar shall give notice thereof to the other party to the lease and after holding an inquiry shall determine the reasonable rent. (2) On receipt of such application, the Mamlatdar shall give notice thereof to the other party to the lease and after holding an inquiry shall determine the reasonable rent. (3) In determining the reasonable rent regard shall be had to the following factors:(a) profits of agriculture of similar lands in the locality, (b) prices in the locality of the particular crop for the growing of which the land is leased, (c) the improvements made in the land by the lessee or the landlord, (d) the assessment payable in respect of land, (e) the profits realised by the lessee on account of the lease of the land, (f) profits earned by an industrial or commercial undertaking by the manufacture or sale of articles made out of the produce of the land leased, (g) such other factors as may be prescribed. (4) The reasonable rent determined by the Mamlatdar under clause (2) shall, with effect from the date specified by the Mamlatdar in that behalf, be deemed to be the rent fixed under the lease in lieu of the rent, if any, agreed between the parties." The preamble of this provision itself clearly shows that the tenant is liable to pay reasonable rent as determined by the Mamlatdar under the said provision and the reasonable rent so determined by the Mamlatdar replaces the agreement between the parties as regards the payment of rent. This is quite clear not only from the provisions of the preamble but also by the provision of sub· section (4) which states that the reasonable rent determined by the Mamlatdar shall be deemed to be the rent fixed under the lease in lieu of the rent. Subsection (1) shows that the application for determination of the reasonable rent can be made either by the landlord or the tenant, and sub-section (3) lays down the relevant factors for determining the reasonable rent. It would be worthwhile to refer to the definition of "rent" contained in section 2(16) which defines rent to mean any consideration, in money or kind or both, paid or payable by a tenant on account of the use or occupation of the land held by him. It would thus be seen from the provisions of section 438 read with the definition of rent that the tenant is under au obligation to pay reasonable rent to the landlord. It would thus be seen from the provisions of section 438 read with the definition of rent that the tenant is under au obligation to pay reasonable rent to the landlord. Ordinarily, so long as the tenant goes on paying rent at the agreed rate, it will be assumed that that is the reasonable rent. However, the question of determination of reasonable rent would arise if the tenant is' in arrears of payment of rent and raises a dispute that the agreed rent is not the reasonable rent. It is equally true that the landlord is also entitled to raise a dispute and get the reasonable rent determined by resorting to the provisions of section 43B. Sub· section (4) clearly shows that the Mamlatdar has been given the power to specify the date from which the tenant would be liable to pay reasonable rent fixed by him in lieu of the agreed rent. Undoubtedly, therefore, the Mamlatdar would be able to determine the rent with effect from the date of the application or on such other date as he may fix thereafter. The only question that arises is whether the Mamlatdar has jurisdiction to determine the reasonable rent for a period prior to the date of the reference made by the civil Court under section 85A of the Act. When the landlord files a suit claiming arrears of rent at the agreed rate, it would be for a period prior to die suit. If the contention of Mr. Rege is accepted, neither the landlord nor the tenant could raise a dispute in the plaint or the written statement so as to require the Court to make a reference to the Mamlatdar under section 85A for fixation of reasonable rent for the period for which the suit has been filed by the landlord. The result of such a contention being accepted would be that in spite of a dispute being raised by the parties regarding the reasonableness of the agreed rent, the landlord could claim or the tenant would be liable to pay only the agreed rent contrary to the provisions of section 43B, inasmuch as, it provides that the rent payable shall be reasonable rent notwithstanding any agreement between the parties. It is significant that the original words "the date of the order of the Collector made" were replaced by the words "the date specified by the Mamlatdar" in subsection (4) of section 43B. As per the unamended provision of sub-section (4) of section 43B, the effect of the determination of the reasonable rent by the Mamlatdar was controlled by the order of the Collector and was effective only when the Collector makes the order. The result of the said provision was that although the Mamlatdar determined the reasonable rent of the sugarcane land, the order of the Mamlatdar did not ipso facto become effective but could be made effective only by an order of the Collector and that too from the date of his order. The amendment has altered the position. The only question for consideration in this case is whether the past liability of the tenant claimed in suit by the landlord under the agreement is not subject to the provisions of section 438 and the Mamlatdar has no power to fix reasonable rent for such period. In view of the provisions of section 438, the tenant is liable to pay reasonable rent in spite of the agreement between the parties as by virtue of the provisions of sub-section (4) contract between the parties is replaced with effect from the date fixed by the Mamlatdar. On a plain reading of section 43B, therefore, it would appear that the tenant's liability even for the past period if he has fallen in arrears would be to pay reasonable rent, and if in a suit a dispute is raised regarding the reasonableness of the agreed rent, the competent authority must determine as to what is the reasonable rent. Under the provisions of sub-section (ma) of section 70, the Mamlatdar alone has jurisdiction to determine the reasonable rent, and the civil Court will have no jurisdiction to determine that question but has to mike a reference under section 85-A for determination of the reasonableness of the rent agreed to between the parties under a contract or the lease. In view of the clear provisions of section 43B, it is not possible for me to accept the contention of Mr. In view of the clear provisions of section 43B, it is not possible for me to accept the contention of Mr. Rege that the agreement between the parties could not be superseded retrospectively if the tenant falls in arrears and the landlord files a suit claiming arrears at the agreed rate, and a dispute about the reasonableness of the agreed rate of rent is challenged in the written statement. 5. In this connection, it would be useful to refer to a decision of this Court in Subraya Ram v. Pyara.1 That was a case prior to coming into operation of the Tenancy Act by Amending Act No. 13 of 1956 which came in force on August 1, 1956. Under the law as it stood prior to the said amendment, there was no provision similar to the one regarding sugarcane lands. However, section 12 of the Act, as it stood prior to 1956, prescribed procedure for determination of reasonable rent of leased lands. Under the said provision, both the tenant and the landlord could make an application to the Mamlatdar for determination of the reasonable rent. Subsection (3) of section 12 enumerated the factors to be taken into account by the Mamlatdar in determining the reasonable rent. However, the determination of reasonable rent was specifically made subject to the provision of section 6 of the old Act which provided that notwithstanding any agreement, usage, decree of order of a Court or any law, the maximum rent payable by a tenant for the lease of any land shall not, in the case of an irrigated land, exceed one-fourth and in the case of any other land exceed one-third of the crop of such land or its value as determined in the said Act. Sub· section (2) of section 6 also empowered tae State Government to fix a lower rate of the maximum rent payable by the tenants of lands situate in any particular area or to fix such rate on any other suitable basis, by notification in Official Gazette. Sub-section (5) of section 12 provided that every order passed by the Mamlatdar under the section if not appealed against, and every order passed by the Collector in appeal shall hold good for a period of five years and shall not be called in question during that period. Sub-section (5) of section 12 provided that every order passed by the Mamlatdar under the section if not appealed against, and every order passed by the Collector in appeal shall hold good for a period of five years and shall not be called in question during that period. Old section 7 further provided that the rent payable by a tenant shall, subject to the maximum rate fixed under section 6, be the rent agreed upon between such tenant and his landlord or in the absence of any such agreement the rent payable according to the usage of the locality or if there is no such agreement or usage, or where there is a dispute as regards the reasonableness of the rent payable according to such agreement or usage, the reasonable rent. In Subraya's case, the landlord filed a civil suit to recover arrears of rent in respect of the agricultural land against his tenant. In the written statement, the tenant raised a plea under section 7 of the Act that the rent claimed by the landlord was unreasonable and also contended that the matter must be referred to the Mamlatdar under section 70 (g) of the Act for determination of the reasonable rent. In that case, Gajendragadkar J., (as he then was), observed: "In normal cases falling under section 12 of the Bombay Tenancy and Agricultural Lands Act 1947, an application may be made by the landlord or the tenant for the determination of reasonable rent in future. But where the question about the reasonableness of rent falls to be considered under section 7 of the Act in a suit filed by the landlord for the recovery of arrears of rent, the determination of the reasonable rent must inevitably be retrospective. In such a case, the Mamlatdar would have to consider the question as to what should be regarded as the reasonable rent for the years in suit, and when the Mamlatdar determines the question, the civil Court will have to take up the threads of the suit once more and pass appropriate orders in accordance with the finding made by the Mamlatdar." The provisions of section 43B are in pari materia with those contained in sections 7 and 12 of the old Act, as it stood before August 1, 1956. In fact, to my mind, the provisions of section 43B seem to be more explicit and mandatory in nature as can be seen from the wording of the section that the reasonable rent fixed by the Mamlatdar would replace the contract regarding the rate of rent agreed to between the landlord and the tenant. If reasonable rent could be retrospectively determined under old section 12 in a reference by the civil Court, as observed in Subraya's case, I see no reason why the Mamlatdar would be incompetent to do so in a case falling under section 43B. The question can be approached from another angle as well. Take a case where the agreed rent is in fact more than the reasonable rent, and the landlord institutes a civil suit for recovering the arrears of rent at the agreed rate. In the contention of Mr. Rege is accepted, it would mean that the landlord would be entitled to recover rent which he is not otherwise entitled being in contravention of the provisions of the Act. Such cannot be the intention of the Legislature. In view of the mandatory provisions of section 43B, no distinction can be made between a case where the reasonable rent is found to be less than the agreed rent and the other where it is found to be more than the agreed rent. In Mohini Raje Khanderao Gaikwad v. Bari Subrao Zapate2, the facts were that the landlord had applied on July 28, 1956 for possession of the land on the ground that the tenant had committed defaults in payment of rent. The Mamlatdar held that the tenant had committed defaults as alleged by the landlord but that the defaults were not wilful. He, therefore, ascertained that an amount of Rs. 2,041 was payable by the tenant to the landlord' as arrears of rent and gave him three months to pay the amount. The matter went upto the High Court in a writ petition. The High Court set aside the orders passed by all the tenancy Courts and directed that the Mamlatdar should determine the amount of arrears of rent due from the tenant. The Court further directed that in determining the amount of arrears the Mamlatdar should proceed on the basis that the arrears due from the tenant upto the year 1955·56 were Rs. 2,041 as previously assessed by the Mamlatdar. The Court further directed that in determining the amount of arrears the Mamlatdar should proceed on the basis that the arrears due from the tenant upto the year 1955·56 were Rs. 2,041 as previously assessed by the Mamlatdar. This order of the High Court was made on October 13, 1961, and after remand the Mamlatdar heard the matter. For the first time before the Mamlatdar, the landlord raised the c0ntention that the land had been leased for the cultivation of sugarcane and that the reasonable rent payable by the tenant ought to be ascertained as provided under section 43B of the Act. The Mamlatdar rejected this contention and assessed the arrears of rent on the basis that the reasonable rent was the same as was decided for the previous years. In appeal, the Deputy Collector set aside the order of the Mamlatdar and directed that he should determine reasonable rent under section 43B and ascertain the amount due from the tenant on that basis. The Revenue Tribunal, however, set aside the order passed in appeal and restored that of the Mamlatdar giving further time to the tenant to pay arrears ascertained by the Mamlatdar. This was challenged by the landlord in a writ petition under Article 227 of the Constitution. On behalf of the landlord it was contended before the High Court that the lease of the land being covered by the provisions of section 43A, the arrears of rent could only be assessed after determining the reasonable rent under section 43B. Tarkunde J. rejected this contention on the ground that till the end of the year 1962·63 the landlord had not made any application for the determination of reasonable rent under section 43B and he raised the plea for the first time before the Mamlatdar in 1963. It was on these facts that Tarkunde J. observed that the landlord had no right to claim in 1963 that reasonable rent of the period prior to 1963 could be determined under section 43B. No arguments seem to have been advanced before the High Court in that case regarding the effect of the provisions to the effect that the reasonable rent determined by the Mamlatdar replaced the agreement or contract between the parties. The decision of this Court in Subraya's case cited above also does not seem to have been cited. No arguments seem to have been advanced before the High Court in that case regarding the effect of the provisions to the effect that the reasonable rent determined by the Mamlatdar replaced the agreement or contract between the parties. The decision of this Court in Subraya's case cited above also does not seem to have been cited. It appears to have been emphasised in that case that although the proceedings were pending since long and the matter was remanded by the High Court in 1963, no plea that reasonable rent under sec· tion 43B should be fixed for the years upto 1963 was raised by the landlord, and if it was raised, the High Court would have referred to it in the order of remand. The observations of Tarkunde J. in that case, with respect, must be held to be confined to the facts of that case. It must be noticed, and the Court seems to have been permuted to reject the argument of the landlord principally on the ground that he did not raise any such plea before the High Court at any time before the High Court remanded the matter back to the Mamlatdar. In the circumstances, the decision of Tarkunde J. in that said case cannot assist the petitioner. 6. It is further urged by Mr. Rege that even if the Mamlatdar is held to have jurisdiction to determine reasonable rent retrospectively for the years in question, the landlord in the facts of the present case would not be entitled to recover more than the amount claimed by him originally in the suit, which admittedly was at the agreed rate of Rs. 550 per year. It is unnecessary to decide this question in this petition as the only question that requires to be considered in this petition is whether the Mamlatdar has jurisdiction to fix reasonable rent of the land retrospectively for the years for which rent is claimed by landlord in his suit and the Mamlatdar is competent to determine the reasonable rent accordingly. 7. 7. The effect of the above discussion is that in a suit filed by the landlord against the tenant for recovery of arrears of rent in respect of a land to which the provisions of section 43A and section 43B are applicable, if a plea that the agreed rent is not reasonable rent is raised by the tenant, the civil Court is competent to make a reference to the Mamlatdar under section 85A to determine the reasonable rent of the land retrospectively for the years for which the rent is claimed by the landlord in his suit and the Mamlatdar is competent to determine reasonable rent accordingly. 8. In the result, the petition fails and the rule is discharged. The petitioner to pay costs of the respondent. Rule discharged.