KAJOODMAL Vs. MOOLIA

JUDGEMENT

(1.) This reference has been made to us by a Division Bench of this Board for an authoritative pronouncement about the scope of the provisions of secs. 94, 99 and 104 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act). This reference has been occasioned by the fact that in case of Devi Sahay and Subh Karan Vs. Bhonria (Case No.29/ 1959/Jaipur) decided on 2.7.1960 by another Division Bench, it has been held that where a sub -tenant has contracted to pay to the tenant a fixed quantity of grains as rent, the provision of the Act that is applicable is sec. 94 and not sec. 104. The relevant observations in judgment may be quoted as follows: - -

(2.) On a careful examination of the provisions of Chapter IX of the Act, we find ourselves in respectful dis -agreement with the above decision. This Chapter of the Act deals with the initial fixation of rent and its subsequent modification under the circumstances specified therein. It opens with the general provision (sec. 93) that every tenant shall be liable to pay rent in accordance with the provisions of the Act, which means that the rent payable by a tenant will be limited to what is permissible under the provisions of the Act. Sec. 94 deals with the initial fixation of rent. It runs as follows : - -

(3.) There is no difficulty about the construction of sec. 94 which merely says that a tenant is liable to pay such rent as may be agreed upon between him and his land -holder, subject to the other provisions of the Act. In other words, rent is a matter of contract between the tenant and his land -holder, but that such a contract must be consistent and not in conflict with the other provisions of the Act. In the sections that follow sec. 94, provision has been made for limiting rent to such limits as were considered reasonable by the legislature. These provisions are of a per -emptory nature and are intended to protect the tenant, which term also includes a sub -tenant. Not only has provision been made for the limitation of the rent chargeable, but also for the recovery of any excess rent that a land -holder may have realised from his tenant. Sec. 96 places a ceiling on what Government may charge by way of cash rent from a tenant holding land direct from Government, Under sec. 97 read with sec. 98 authority has been given to the State Government to prescribe the maximum cash rent recoverable from a tenant by an estate holder, viz. a Jagirdar, a Biswedar or a Zamindar, in an area where land revenue has been settled. Likewise, under sec. 97 read with sec. 99, power has been further given to the State Government to prescribe the maximum cash rent recoverable by a tenant from his sub -tenant in areas where rent has been settled and sub -tenants pay rent in case. But under sec. 99 direction has been given to Government that the cash rent that it may prescribe for payment by the sub -tenant shall not exceed twice the amount payable by the tenant himself at the settled rates. Secs. 100, 101 and 101 -A relate to certain circumstances specified therein, in which the maximum limits of rent laid down in the preceding sections will not be applicable or will be relax able. Sec. 102 provides for the recovery from the land -holder of any rent realised by him from his tenant in excess of the maximum rent prescribed under sec. 97, read with secs. 98, 99 and 100. Sec. 103 goes so far as to say that where cash rent rates have not been evolved, determined and sanctioned, but assessment circles have been formed and circle rates have been determined, the Assistant Collector may on an application determine the rents in cash payable by tenants on the basis of such rates. Then follow sec;. 104 and 105 which deal with rent in kind. Sec. 104 lays down the limit of rent that is payable in kind, and sec. 105 provides for a higher rate of kind rent in certain circumstances