Decided on July 13,1954

Maharana Jaywantsinhji Ranmalsinhji Thakore Saheb Of Sanand Appellant

Cited Judgements :-



M.C.CHAGLA, J. - (1.)THE petitioner is a talukdar of Sanand and Koth Estate and he requires by this petition that the Collector of Ahmedabad where his villages are situated should give him necessary assistance in recovering the local fund cess from his tenants as provided by the Bombay Land Revenue Code. This petition affects the lands leased to 53 tenants and we have before us the kabulayat executed by these tenants and the kabulayat provided for payment by the tenant of a certain amount as darbari haq which is the same as rent, and also whatever local fund cess which the landlord would be liable to pay. It appears that the petitioner was recovering from his tenants both the rent and this local fund cess, but in 1954 when the petitioner attempted to recover the local fund cess from his tenants, the tenants refused to pay this cess on the ground that they had been instructed by the talatis and other officers of the State of Bombay that they were not liable to pay to the petitioner this cess. Thereupon on March 27, 1954, the petitioner addressed a letter to the Collector of Ahmedabad and called upon him to render him assistance to recover this cess under the provisions of Section 86 of the Land Revenue Code. The Collector replied on the same day stating that according to Section 86 of the Land Revenue Code assistance could be granted for recovery of land revenue or rent only, and as the petitioner was seeking assistance for recovery of local fund cess from his tenants, the assistance asked for could not be granted and therefore the application of the petitioner was not admitted. On receiving this reply the petitioner came to Court with this petition.
(2.)NOW , turning to the legal provisions, we must first turn to the Local Boards Act, and Section 93 of that Act empowers the State Government to levy a cess of 3 annas on every rupee. Section 90 provides that the cess shall be levied, so far as may be, in the same manner, and under the same provisions of law, as the land revenue. Section 98 provides : The provisions of law relative to the assistance to be given to superior holders and owners of water -courses for the recovery of their dues from their tenants and occupants under them, or from persons authorized to use their water -courses, shall be applicable to all superior holders, whether of alienated or unalienated land, and to all owners of water -courses in respect of the recovery of the said cesses from their tenants, occupants or persons authorised to use their watercourses, and shall be applicable also to occupants of land under the Bombay Land Revenue Code, 1879, for the recovery of the said cesses from their tenants or joint occupants. Therefore, by this section the provisions of the Land Revenue Code have been made applicable to enable the landlord to recover this cess from their tenants or the joint occupants. Turning to the provisions of the Land Revenue Code, Section 85 provides : Superior holders shall, upon written application to the Collector, be entitled to assistance, by the use of precautionary and other measures, for the recovery of rent or land revenue payable to them by inferior holders, or by co -sharers in their holdings under the same rules, except that contained in section 137, and in the same manner as prescribed in Chapter XI for the realization of land revenue by the State Government. Section 87 lays down the procedure as to how the application has to be made and how the Collector has to proceed on such application being made. Sub -section (1) of Section 87 provides that when an application is made to the Collector, he shall cause a written notice thereof to be served on the inferior holder or co -sharer fixing a day for inquiry into the case. Sub -section (2) provides : On the day so fixed he shall hold a summary inquiry, and shall pass an order for rendering assistance to the superior holder for the recovery of such amount, if any, of rent or land revenue as appears to him upon the evidence before him to be lawfully due. Sub -section (3) confers a certain discretion upon the Collector and that discretion is that if it appears to the Collector that the question at issue between the parties is of a complicated or difficult nature, he may in his discretion either refuse the assistance asked for, or, if the land to which the dispute relates, has been assessed under the provisions of this Act, grant, assistance to the extent only for the assessment so fixed upon the Maid land. Now, the contention of the petitioner is that unless the Collector is of the opinion that the question at issue between the parties is of a complicated or difficult nature, it is incumbent upon him under Sub -section (2) to pass an order rendering assistance to the petitioner, and it is pointed out that when the application was made by the petitioner under Sub -section (1) of Section 87 the Collector did not refuse assistance on the ground that the issue between the parties was of a complicated or difficult nature, but refused assistance on the ground that what the petitioner was seeking to recover was not rent but local fund cess. It is urged that the Collector in sending his reply obviously overlooked the provisions of Section 98 of the Local Boards Act and confined his attention only to Section 86 of the Bombay Land Revenue Code. Therefore, the refusal on the part of the Collector was not due to any exercise of discretion on his part, but was due to his taking the view that the petitioner was not entitled to the relief at all. It is rather curious to note that it is only in the affidavit of Mr. Bakhle that he points out in para. 7 that when the question which arises between the parties is of a complicated or difficult nature as appears to be the case in these proceedings, it would be within the discretion of the Collector to refuse or grant assistance under Section 87(3). But it is not for Mr. Bakhle to decide that the question which arises between the parties is of a complicated or difficult nature. The statute confers that discretion upon the Collector, and as we have already pointed out, the Collector has not exercised that discretion and has not formed the opinion that the matter is of a complicated or difficult nature. On the contrary, judging by the very short and brusque reply sent by him, he felt no difficulty in coming to the conclusion that the petitioner was not entitled to the relief because what he was claiming was not rent but local fund cess.
Our attention has also been drawn by Mr. Palkhivala to the rather inconsistent attitude taken up by the Government on the right of landlords to recover local fund cess from their tenants. At one time Government's view was that where rent was paid by tenants as a crop share, there could be no separate levy for local fund cess, but where rent was paid in cash, local fund cess at the rate of 3 annas in a rupee of assessment would be payable by the tenants. A little later the view taken by Government was that where cash rent equal to or less than the assessment was paid, the local fund cess would be payable by the person who paid such rent. As in this case the rent payable by the tenant is more than the assessment, the Government have taken the view that the petitioner is not entitled to the collection of the cess. But in the affidavits made and on the submissions made by the Advocate General, the view that is now put forward by the State is that under no circumstance on a proper construction of the relevant provisions of the Tenancy Act is the landlord entitled to recover any cess from the tenant. Therefore, the position is clear that if the landlord is lawfully entitled to recover local fund cess from the tenant and if the tenant refuses to pay, the landlord is entitled to obtain assistance from the Government for the recovery of this cess in the same manner and to the same extent as he would be entitled to for the recovery of rent, and that assistance can only be denied to him provided the Collector comes to the conclusion that the question raised and at issue between the parties was of such a complicated character that it would not be right to compel the tenants to pay the amount claimed but that the parties should be referred to litigate their rights in a civil Court. But the right of the petitioner to claim assistance can only arise provided he satisfies us that he is entitled to claim this local fund cess from the tenants, and the contention of the Advocate General is that on a true construction of Section 11 of the Tenancy Act the landlord is not so entitled.

(3.)NOW , turning to Section 11, it provides : Notwithstanding any agreement, usage or law, it shall not be lawful for any landlord to levy any cess, rate, vero, huk or tax or service of any description or denomination whatsoever from any tenant in respect of any land held by him as a tenant other than the rent lawfully due in respect of such land. Before we construe Section 11 it would be perhaps advisable once again to look at the general scheme of the Tenancy Act with regard to the rights of the tenants and also the rights of the landlords. The broad scheme of the Act is that a landlord is not entitled to charge any rent in excess of the maximum rent which Government may fix under Section 6(1). If the rent fixed under the agreement between the landlord and the tenant does not exceed this maximum, there is nothing in the law to prevent the landlords from recovering such a rent subject to one important qualification, and that qualification is that notwithstanding the fact that the rent is less than the maximum it is open to the tenant to complain that even so the rent is not reasonable, to apply to the Mamlatdar for fixation of reasonable rent, and to get the reasonable rent fixed, but until such an application is made by the tenant and until the reasonable rent is fixed, the obligation of the tenant under Section 7 to pay the fixed rent continues. The only other qualification upon the right of the landlord to recover rent is Section 9 which prohibits him from receiving rent in terms of service or labour. It is against this background that we must look at and construe Section 11. The marginal note to Section 11, which may be looked at in order to understand the drift of the section is, 'Abolition of all cesses, etc.' and what is rendered unlawful and what is prohibited is the levying by the landlord of any cess, rate, vero, huk, tax or service of any description or denomination wnatsoever from any tenant. But it is pertinent to note that the Legislature has made it clear that the landlord is entitled to recover rent lawfully due from the tenant and what is prohibited is the landlord charging the tenant something more than or other than the rent which he is lawfully entitled to recover.

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