BEEPATHUMMA & OTHERS Vs. SHAMBHATTA & OTHERS

JUDGEMENT

(1.) THE question raised in these seven Civil Revision Petitions is of the court -fee payable on applications under Section 9 sub -section (3) of the Kerala Agriculturists Debt Relief Act, 1958. The courts below have held the applications under sub -section (3) to be a species of applications under subsection (1) of section 9 of the Act which are chargeable under sub -section (4) of the section. Counsel for the applicants contend that sub -section (3) of section 9 is independent of sub -section (1), that the court -fee payable on an application under sub -section (3) is as provided in Rule 7 (2) of the Kerala Agriculturists Debt Relief Rules, 1958, or in sub -section (3) of Section 11 of the Act Notice of these Civil Revision Petitions has been given to the State and the Government Pleader is also heard on the matter, The relevant Sections of the Kerala Agriculturists Debt Relief Act 1958, as amended by Act II of 1961 (which will be referred to hereinafter as the Act) read thus:

(2.) UNDER sub -section (1) of Section 9 it is open to an agriculturist to plead and prove any subsisting transaction to be a transaction of debt in reality and claim consequential reliefs. Sub -section (3) provides likewise that any agriculturist who is a party to a "transaction entered into on or after 1st January 1946 and purporting to be a sale of immovable property or a lease of usufructs" may plead and prove it to be 'really a debt' and claim the income of the property taken by the vendee or lessee to be re -appropriated towards interest calculated at the rate specified in Section 5 and then towards the principal of the debt, the outstanding amount, if any, being liable to be repaid in accordance with sub -sections (2), (3) and (5) of Section 11 of the Act. Though the sub -section (1) is general in its expression and comprehensive of all transactions, it appears that the sub -section (3) has taken out transactions of sales and leases of usufructs for a special treatment in sub -section (3), wherein a separate provision self -contained in all respects is enacted for them. Even the non obstante clause that in sub -section (1) is re -enacted separately in sub -section (3). The indication can only be that in regard to matters dealt with in sub -section (3), the sub -section (I) has no bearing. It then follows that sub -section (4) which relates to applications under sub -section (1) cannot govern applications under sub -section (3). Such inference becomes confirmed when we remember that different sets of applications are contemplated under sub -sections (1) and (3) of Section 9 as is evident from Rule 7(1) and (2) of the Rules, which are to be deemed part of the Act by virtue of 'the Henry VIII clause' in Section 24 of the Act

(3.) COUNSEL for the applicants contended that under Rules 7(2) of the Rules, an application under sub -section (3) of Section 9 need bear a court -fee of 75 nP. only. The Rules are dated 5th November 1958, obviously before the amendment in the Act which came to be in 1961 only. Under the original Act there was no provision regarding court -fee in regard to applications under Section 9. In regard to other applications, court -fee was provided for in Sections 8 and 11 of the Act. It was in such circumstances that the Rules came to prescribe court -fee for applications under sub -sections (1) and (3 of Section 9 of the Act. But, the amending Act II of 1961 has added sub -section (4) to Section 9 to prescribe court -fee chargeable on applications under sub -section (1) thereof, and incorporated sub -section (3) of Section 11, which contains a provision for court -fee, in subsection (3) of Section 9, and thus made its own provisions in supersession of the Rule 7. "The cardinal rule in regard to promulgation of by -laws or making rules" observed the Supreme Court in Newspapers Ltd. v Industrial Tribunal ( : A.I.R. 1957 S.C. 532,537) "is that they must be legi fidei rationi consona, and therefore all regulations which are contrary or repugnant to statutes under which they are made are ineffective". Hence, even though the Rule 7 has not been removed from the Rules, the addition of sub -section (4) to Section 9 and the incorporation of sub -section (3) of Section 11 in sub -section (3) of Section 9 must be held to have abrogated it. No reliance can therefore be had in Rule 7 of the Rules after the commencement of the amending Act, II of 1961. It is also contended that Section 9 contemplates only a declaratory relief and therefore the prescription of court -fee in sub -section (3) of Section 11 to an application for discharge of a debt cannot be applied to applications under sub -section (3) of section 9. Reliance was placed on the Forms of Applications prescribed under the Rules in this regard. But in C.R.P. 1281 of 1960 I have had occasion to point out the emptiness of another Form in the Rules and hold that the forms given merly as models for drafting cannot be taken as guides to the meaning of the statute, following the weighty observations of Blagden J. in Ma Tin Tin v Maung Ayo (A.I.R. 1941 Ran 135, 140) and of Wadsworth and Patanjali Sastri JJ. in Pandiri Sarveswara Rao v Maturi Umamaheswara Rao (A.I.R. 1941 Mad 152). To me it appears incorrect to say that Section 9 of the Act is designed for declaratory reliefs. Being an Act designed to give relief to indebted agriculturists, its provisions aim at practical reliefs in discharge of indebtedness. Sub -section (1) of Section 9 provides for reopening any transaction and exposing it as one of debt and then passing "an order in conformity with the other provisions of this Act"; which, in the context, can only be for the discharge of the newly exposed debt under the beneficent provisions of the Act. Sub -section (3) also provides likewise to rend the camouflage of certain transactions to expose their real nature of debt and to have them discharged as provided in the sub -section. It is then clear that neither sub -section (1), nor sub -section (3) is for a mere declaratory relief, and that the contention has to be overruled.