Decided on February 19,1960



- (1.)THIS appeal under sec. 39 of the Rajasthan Land reforms and resumption of Jagirs Act (hereinafter referred to as the Act) has been filed against the order of the Collector, Jagir Jhunjhunu dated 17. 1. 59 in a case under sec. 5 of the Act.
(2.)WE have heard the learned counsel for the parties and have examined the record as well. The validity of the lower court's decision has been challenged before us on two grounds only and we shall deal with each one of them separately.
The first contention is that the land revenue held payable by the Jagirdar in respect of his Jagir lands for the agricultural year 1951-52 under sec. 8 (a) of the Act should have been reduced by Rs. 16977/4/6 per annum for the reason that this amount was realised by the appellant from his sub-grantees. Reliance in this connection has been placed upon the explanation appearing after sec. 8 (b) (ii) which runs as below : - Explanation for the purpose of this clause-: the amount of tribute payable by a Jagirdar to the Government for the agricultural year 1950-51 shall be deemed to be the amount of such tribute less the amount of any. tribute payable to such Jagirdar by any person to whom the Jagirdar may have granted any of his Jagir lands. " This explanation is intended to explain the contents of clause (b) of sec. 8 of the Act only and has no applicability whatsoever to clause (a) of the Act. Sec. 8 is divided in 3 clauses. Clause (a) deals with land revenue payable for the agricultural year 1951-52 and according to the provisions of this clause the land revenue shall be equal to the amount of tribute payable by the jagirdar to the Government for that year. Clause (b) deals with the agricultural year 1952-53 and each of the six succeeding agricultural years. The Explanation relied upon by the learned counsel for the appellant follows this clause and as the Explanation itself shows the purpose is to explain this clause alone. Clause (c) makes a provision for the agricultural year 1959-60 and subsequent years. There is thus no ambiguity on the point that as far as the agricultural year 1951-52 is concerned the land revenue shall be equal to the amount of tribute payable by the Jagirdar to the Government for that year. The deduction on account of the tribute received by the Jagirdar from his sub-grantees can be made only in respect of the agricultural years 1952-53 and six succeeding years. There is thus no substance in this contention which is hereby rejected.

The other contention is that the lower court had no jurisdiction to order that the amount of Rs. 24731/13/- already realised by the appellant as tribute from the sub-grantees should be taken back from to the Thikana as it relates to the period prior to resumption of the grant. It has not been disputed before us that the amount in dispute was realised by the appellant prior to resumption. The contention of the appellant before us is that prior to resumption it was open to the appellant to realise tribute from the sub-grantees whose rental income determined under sec. 6 or 7 of the Act was less than Rs. 500. Sec. 4 of the Act lays down that notwithstanding anything contained in any existing Jagir law or any other law, all Jagir lands shall from the commencement of the Act liable to payment of land revenue to the Government under any existing Jagir law shall cease and likewise any grantee of Jagir land from a Jagir shall cease to pay any sums to the Jagirdar in respect of such grant. There is, however, a proviso added to this section which clearly lays down that nothing contained in this section shall apply to any Jagir land the rental income of which as determined under sec. 6 or sec. 7 is less than Rs. 500/ -. (The other clause of the proviso need not be discussed here as it has no relevancy to the present case.) The argument is that in case of sub-grantees covered by this provision the liability to pay tribute to the parent grantee was not affected in any way and hence the appellant was well within his rights to realise the same from the sub-grantees till the parent grant was resumed under sec. 21 of the Act. The learned Government Advocate has argued that the scheme of the Act provides a clear indication to the intention of the Legislature which is to the effect that on the enforcement of the Act the liability of Jagirdars to pay tribute to the State Government and that of sub-grantees towards the parent grantee came to a termination. The proviso should be so construed as to mean that the liability to pay land revenue was not to be enforced and as a consequence thereof no sub-grantee was thereafter to be liable to pay any tribute to the parent grantee and if any payment was made in that behalf it should be deducted from the compensation of the parent Jagirdar under sec. 25 of the Act. It is of course true that a proviso is subordinate to the main enactment to which it is appended either to allay unfounded fears or for explaining those particular matters as are not within the meaning of the enactment or for providing exceptions and qualifications for the enactment. Ordinarily a proviso must be taken to govern the main provision of law which immediately precedes such proviso but where a proviso in clear and explicit terms indicates a substantive provision it cannot necessarily be controlled by the language of the main enactment (A. I. R. 1951 Bom. , 385 ). The proviso contained in sec, 4 of the Act leaves no room to doubt that nothing contained in the main enactment will apply to cases falling under the two categories given in the proviso. Thus in case of these two categories the liability of a sub-grantee to pay tribute to the parent grantee would continue unless either of the grant is resumed. We may also refer to the provisions contained in sec. 25 of the Act. It lays down that on and from the date of resumption no Jagirdar shall recover or receive from any tenant or resident of the Jagir or from any contractor or other person any rent, cess or other dues, which he is not entitled to recover or receive under the provisions of this Act. Obviously this relates to a period coming after the resumption and sub clause (2) of this section authorises the Collector to direct the refund of any recovery which has been in contravention of the provisions of sub-see. (1 ). Thus sec. 25 has no application to recoveries or receipts for the period prior to the date of resumption. Thus the result is that tributes recovered by the appellant from sub-grantees falling within (B) Part of the proviso to sec. 4 of the Act prior to the resumption of the Jagir shall not be recoverable from the appellant under the provisions of the Act. We, therefore, partly allow this appeal and set aside the order of the learned lower court relating to the deduction of Rs. 25781/13/- and remand the case back to it with the direction that a further enquiry should be held in it to determine as to whether the amount of tribute was realised from the sub-grantees falling under (b) part of the proviso appended to sec. 4 of the Act and to decide it afresh in the light of the observations made above. .


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