NAND KISHORE LAL Vs. BASDEO SINGH

JUDGEMENT

(1.) This is an appeal against the order of the learned District Judge of Gaya by which he summarily dismissed the appeal filed by the appellant in the following circumstances. The appellant as the decree-holder proceeded to execute his decree which he had obtained for arrears of rent against the judgment-debtor. In the same year the judgment-debtor made an application for reduction of arrears of rent to the revenue authorities and the rent was reduced by 8 annas 6 pies in the rupee or by 53 5 per cent. The judgment-debtor accordingly applied to the executing Court that the decree which was going to be executed should not be executed for a sum larger than the sum which would be payable to the decree- holder in accordance with the decision of the Revenue Officer reducing the rent. To this the decree-holder objected that the order of the rent reduction officer was without jurisdiction inasmuch as no notice was served upon the landlord decree- holder, that only one of the tenants had applied for reduction and I am told there were certain other objections also taken which are said to have gone to the root of the jurisdiction of the Revenue Officer. The learned Munsif declined to go into any one of those questions because he thought he was bound to follow the decision of this Court reported in Sree Kant Lal V/s. Ajodhya Singh A.I.R. 1941 Pat. 390. Accordingly, he held that the decree-money should be reduced in accordance with the reduction of the rent as fixed by the Revenue Officer.

(2.) Against this decision there was an appeal to the learned District Judge who, as already stated, dismissed it summarily. Hence the second appeal to this Court. It was decided by the Calcutta High Court in Gora Chand Haldar V/s. Rakhal Chandra A.I.R. 1933 Cal. 364 that no order for commutation of rent under Section 40, Ben. Ten. Act, is to be made till notice of the application has been served, and that an order made without service of notice is ultra vires, and that if the order is ultra vires such an order does not bind the civil Court. The judgment was delivered by Sir Ashutosh Mukherji and the reasonings which are given by the learned Judge at p. 474 are very illuminating. He points out that Section 40(2) provides that an application may be made to one of the revenue authorities mentioned therein for commutation and that such an application was made by the tenants and then observes: Although the section does not state explicitly that no order for commutation is to be made till opportunity has been afforded to the party liable to be affected thereby to appear and contest the application, it is obvious on first principles that no order should be made till notice of the application has been served. The object of the application for commutation is to secure an alteration of the most essential element of the tenancy, namely, the rent. It is of the utmost importance to the parties whether the rent is to be payable in kind or in cash; and if the rent is to be paid in cash what sum should be taken as the proper amount payable in lieu of rent previously paid in kind. An order of this description cannot justly be made without notice to the party affected. We must consequently hold that the order was made without jurisdiction. This is not a case where proceedings properly initiated have been notified to the parties concerned, but there has been an irregularity in the service of notice. Here the revenue authorities assumed jurisdiction over persons who would be affected by their order without any notice served upon them. In such circumstances, the order must be regarded as ultra vires. As was observed by Willes, J. in Cooper V/s. Wandsworth1863. 14 C.B. (N.S.) 180 at page 190 a tribunal which is by law invested with power to affect the property of one of Her Majesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds; that rule is of universal application and founded upon the plainest principles of justice.

(3.) For these reasons I am of opinion that the appeal should be allowed and an opportunity given to the decree-holder to show that the order passed by the Revenue Officer was without jurisdiction. If the order was without jurisdiction, obviously it could not be relied upon and the civil Court in the execution department was bound to ignore it. It must be made clear, however, that the appellant will be entitled to show only that the order was made without jurisdiction but not that in the exercise of his jurisdiction the Revenue Officer came to an erroneous conclusion. The appeal is, therefore, allowed, the decisions of the Courts below are set aside, and the learned. Munsif is directed to dispose of the objection of the appellant to the validity of Section 112-A proceedings and of the order passed by the Revenue Officer therein in accordance with law. The costs hitherto thrown away will abide the result both in this Court and in the Courts below and will be disposed of by the learned Munsif.