MT ATIQA BEGAM Vs. ABDUL MAGHNI KHAN

JUDGEMENT

(1.) The question referred to this Full Bench for decision is, whether the U.P. Regularization of Remissions Act (14 of 1938) is or is not intra vires the Legislature of the United Provinces. The reference arises under the following circumstances: A suit for arrears of theka money with respect to the years 1339 to 1341 Fasli (1932 to 1934 A.D.) was brought by the plaintiffs-appellants against the defendants-respondents under Section 132, Agra Tenancy Act (3 of 1926). The plaintiffs claimed the arrears at the rate of the annual rent reserved by the lease. The defendants inter alia pleaded that remissions in rent were allowed by the local Government in the years in suit and that, in calculating the amount due to the plaintiffs, the remissions should be taken into account. The plaintiffs, while admitting that in pursuance of the directions issued by the local Government remissions in rent were granted to the tenants in the years in question, maintained that the orders as to remissions were invalid and contrary to law. This contention of the plaintiffs was based on Section 73(1), Tenancy Act, which runs as follows: When for any cause the local Government, or any authority empowered by it in this behalf, remits or suspends for any period the payment of the whole or any part of the revenue payable in respect of any land, whether such revenue is payable to an assignee or to the Government, a Collector, or, if so empowered by the local Government, an Assistant Collector of the First Class, may order that the rents of the tenants holding such land or any portion thereof, mediately or immediately from the landlord, shall be remitted or suspended for the period of such remission or suspension of payment of revenue, to an amount which shall bear the same proportion to the whole of the rent payable in respect of the land as the revenue of which the payment has been so remitted or suspended bears to the whole of the revenue payable in respect of such land.

(2.) In accordance with this Section the remission of revenue is to precede the remission of rent, and the proportion of the rent remitted must not be in excess of the proportion of the revenue remitted. It is however admitted in the present case that remissions in rent were ordered in violation of the provisions of Section 73. No order for remission of revenue was passed before the orders as to remissions of rent were issued, and the proportion of the rent remitted was much in excess of the proportion of the revenue subsequently remitted by the local Government. The plaintiffs therefore contended that the action of the local Government in remitting the rent was ultra vires and the defendants were not entitled to the benefit of the remissions ordered. The Courts below relying on Section 74, Tenancy Act, disallowed the contention of the plaintiffs and, in calculating the arrears of theka money with respect to the years in suit, took the remissions into account. Section 74 runs as follows: 74. (1) An order passed under Sub-section (1) or Sub-section (2) of Section 73 shall not be questioned in any Civil or Revenue Court. (2) A suit shall not lie for the recovery of any rent of which the payment has been remitted in accordance with the provisions of Section 73, or during the period of suspension of any rent of which the payment has been suspended in accordance with the provisions of Section 73.

(3.) The plaintiffs filed a second appeal in this Court. One of the points raised in the appeal was that the remissions in rent, being in violation of the provisions of Section 73, were invalid, and must therefore be ignored. During the pendency of the appeal the scope and effect of Secs.73 and 74, Tenancy Act, formed the subject of consideration in Muhammad Abdul Qaiyum V/s. Secy. of State by a Bench of this Court of which I was a member. It was held in that case that Section 73 provides that the remission or suspension of revenue must precede the remission or suspension of rent and the proportion of the rent remitted or suspended must not be in excess of the proportion of the revenue remitted or suspended. It was further held in that case that if remissions in rent are in violation of the provisions of Section 73 and not in accordance with that Section, Section 74(2) of the Act is no bar to a suit in the revenue Court for recovery of the remitted rent, or to a suit in the Civil Court for recovery of the excess revenue realized.