MEGH SINGH Vs. STATE

JUDGEMENT

(1.) THIS is a petition under Articles 226 and 227 of the Constitution of India for quashing the orders of the Board of Revenue (hereinafter 'the Board') dated August 20, 1970 and January 15, 1970 (Annex. 4 and 3) by which the order of the Revenue Appellate Authority, Bikaner, Camp Jodhpur dated June 17, 1964 (Anx. 2) was confirmed. The Revenue Appellate Authority, by its order dated June 17, 1964 (Anx. 2) had maintained the order of the S. D. O. (Assistant Collector) Bali, dated February 10, 1964 (Anx. 1 ).

(2.) PETITIONERS Nos. 1 and 2 and one Shivnathsingh (since dead) instituted a suit under S. 124 (4) of the Rajasthan Tenancy Act, 1955 (No. III of 1955) (hereinafter referred to as 'the Act') on September 15, 1959 against the State of Rajasthan (defendant-non-petitioner No. 1), in the Court of the S. D. O. , Bali (non-petitioner No. 4 ). The suit was dismissed on April 12, 1961. On appeal, the Revenue Appellate Authority (non-petitioner No. 3) remanded the case to the court of S. D. O. , Bali on March 13, 1962 and permitted the plaintiffs to convert the suit so instituted into a suit under S. 89 of the Act. Thereafter, petitioners Nos. 1 and 2 and late Shivnathsingh filed a suit under S. 89 in the court of the S. D. O. , Bali on November 1, 1962. This suit was registered as Revenue Suit No. 114 of 1962. During the pendency of the suit, Shivnathsingh died and Smt. Kesar Kanwar (his widow) was substituted as petitioner No. 3. Ex parte proceedings were ordered on March 30, 1962 against the Tehsildar, Desuri as he did not appear despite service. It may be mentioned here that the Tehsildar, Desuri had filed a written-statement in the earlier suit instituted under S. 124 (4) of the Act.

(3.) IT was next contended by Mr. Rajendra Mehta, that the finding of the Board that the agreement of the petitioners Istamrarars with the Jagirdars dated Ashadh Vadi 7 Vikram Samvat 1946 cannot govern the rent payable by the petitioners in the changed circumstances suffers from an arror apparent on the face of the record. In support of his contention, learned counsel strongly relied on the judgment dated August 6, 1955, passed by the Board in case No. 28/pali/of 1964, Appellant Motisingh vs. Respondent-Moolchand in which S. 54 of the Marwar Tenancy Act, 1949 was considered. IT was observed, - ". . . . . . In the present case a dispute arose between the parties as regards the rent and ejectment from this holding and it was decided by the Revenue Minister of the former Jodhpur State on 16-8-1933 that the appellants were liable to pay only a fixed rent of Rs. 20/- p. m. in perpetuity as the land was held by them in Istimrar tenure. This is evidently a decision of the highest court of the then State, former Jodhpur State, and is bound to be operative unless set aside in accordance with law. . . . . . . . . IT, therefore, becomes perfectly clear that the liability of the tenant to pay an enhanced rate of rent was directly in issue in that case and finding thereon was given by the court after enquiry. That decision must remain operative unless set aside in due course of law. The Settlement Officer was perfectly justified in passing the order that he did in the case. There was no ground for the Additional Settlement Commissioner to reverse that order. . . . . . " The Act came into force from October 15, 1955. Sec. 13 of the Act provides for acquisition of the khatedari rights, subject to the exceptions provided in this section. S. 93 lays down that every tenant shall be liable to pay rent in accordance with the provisions of the Act. S. 94 provides that subject to the other provisions of the Act, a tenant on being admitted to occupation of land in liable to pay such rent as may be agreed upon between him and his land-holder. S. 94 is, of course, qualified and governed by Ss. 96 to 105 of the Act and any contract between a tenant and his sub-tenant or a landlord and his tenant is not enforceable in so far as it seeks to determine rent in excess of the limits laid down in Secs. 95 to 105. Sec. 95 is worthy of notice. IT provides that the rent or rate of rent payable by a tenant shall be presumed to be the rent or rate of rent payable by him under sec. 94, until it is varied in accordance with the provisions of the Act. IT is, therefore, clear that S. 95 makes reference to S. 94. Sec. 115 deals with fixation of rent and sec. 118 provides for computation of rent. Next important section is 119 which reads as under, - "sec. 119. Period of currency of rent : When rent in respect of any land has been fixed under sec. 115 or commuted under sec. 118, it shall not be liable to modification until the period of the settlement of the area in which such land lies has come to as end or until it is varied in accordance with the provisions of this Act. " Section 3 deals with repeal and Sub-section (4) thereof reads as under: "sec. 3 (4 ). The provisions of any agreement relating to agricultural tenancies, existing and operative at such commencement, which are repugnant to or inconsistent with, the provisions of this Act, shall, subject to such savings as are elsewhere provided in this Act or in The Rajasthan Revenue Law (Extension) Act, 1957, become void and cease to be operative to the extent of such repugnancy or inconsistency. " This sub-section declares void and inoperative agreements relating to agricultural tenancies existing & operative at the commencement of the Act which are inconsistent with or repugnant to the Act. Sub-section (4) of s. 3 of the Act becomes applicable to a case when it is shown that there was an agreement relating to agricultural tenancies between the parties at the commencement of the Act and such an agreement was repugnant to or inconsistent with the provisions of the Act. The Act permits periodical increase in the rate of rent payable by a tenant. During the settlement operations, the rate of rent has been varied. Thus, the agreement dated Ashadh Vadi 7, Vikram Samvat 1946 being repugnant and inconsistent with the provisions of the Act, has become void and cease to be operative and the petitioners are liable to pay rent in accordance with the provisions of S. 93 of the Act. The rate of rent payable under the agreement of Ashadh Vadi 7, Vikram Samvat 1946 is, therefore, not applicable and it cannot have the binding effect so far as the question of determination of rent between the State and the petitioners are concerned. IT is not in dispute that the petitioners accepted the khatedari parcha of the land and had become khatedar tenants under the Act. The status of the petitioners having been recognised as of khatedar tenants, they are liable to pay rent in accordance with the Parcha Lagan granted to them which they had willingly accepted. IT is, therefore, quite evident that the agreement relied on by the petitioners which was between the grantee-Jagirdars and the petitioners is not binding on the State, after the resumption of the Jagir under the Act of 1952.