BERI, C. J. - (1.) THIS is a petition under Art. 226 of the Constitution of India, wherein the petitioner prays that the orders of the Additional Commissioner II, Jaipur, dated August 16, 1960, and that of the Board of Revenue, Rajasthan, Ajmer, dated August 11, 1965, be quashed and the decree of the Assistant Collector (S. D. O.), Alwar, dated November 30, 1957, and June 13, 1960, be restored.
(2.) WAY back on January 6, 1888, a Patta was issued by the then Alwar State in the name of ancestor of the petitioners named Mansaram, for the purpose of the construction of Dharmashala, house, cultivating an orchard and digging of well for the benefit of the passengers. On May 24, 1949, the petitioner Badriprasad gave a Theka to respondents Nos. 1 and 2 for a period of 5 years and the consideration agreed upon was that the respondents Nos. 1 and 2 will pay Rs. 400/- per annum by way of Theka money. On September 16, 1957, the respondents made default in the payment and a sum of Rs. 600/- became due for a period of 1-1/2 years, adding interest Rs. 80/- thereto, petitioner Badriprasad (since deceased) instituted a suit in the Court of Sub-Divisional Officer, Alwar. On November 30, 1957; the suit was decreed for Rs. 620. An appeal was taken before the Additional Commissioner, Ajmer but it was rejected on July 12, 1958. The matter was then taken to the Board of Revenue, which, by its judgment dated July 27, 1959, remanded the case to the Court of Assistant Collector (S. D. O ), Alwar, to decide whether sec. 3 and 4 of the Rajasthan Agricultural Rent Control Act, 1954 (hereinafter referred to as "the Act") applied or not. The case came before the Assistant Collector (S. D. O ). On June 13, 1960, he expressed the view that the provisions of secs. 3 and 4 of the Act were not applicable and he again awarded a decree to Badriprasad in the sum of Rs. 620/ -. An appeal was taken by the respondents before the Additional Commissioner IT, Jaipur, who expressed the view that even though the land in dispute was not duly assessed under sec. 4, but the assessment of land revenue in regard to the neighbouring lands may be taken as a standard and he accordingly reduced the decree to the sum of Rs. 241/5/ -. This time it was Badriprasad, who went up to the Board of Revenue and the learned members of the Board of Revenue by their judgment dated August 11, 1965, agreed with the view taken by the learned Additional Commissioner II, Jaipur. Still dissatisfied Badriprasad filed the present writ petition. During the pendency of the petition Badriprasad died and his legal representatives Kailash Chandra and others have been brought on record. The respondents have joined the issue and reiterated their submission, which they had successfully made before the learned Additional Commissioner II, Jaipur, and the Board of Revenue, Ajmer. The Act was designed to provide for the fixation of maximum rents recoverable by landholders in the district of Alwar and Bharatpur and also to make provision for the law made in this behalf to be extended to other areas. Sec. 3 of the Act lays down that notwithstanding any custom, usage or practice to the contrary or anything contained in any law, enactment, rule, decree, order, agreement or instrument, no landholder shall recover or be deemed entitled to recover as cash rent for any holding in an area to which this Act for the time being applied, an amount exceeding twice the land revenue assessed on such holding or the cash-rent fixed under sec. 4 of the Act. It is not in dispute that this Act applied to the area of the erstwhile State of Alwar where the land is situated. Nothing more needs be noted in regard to sec. 3 because both the learned Additional Commissioner II, Jaipur, as well as the Board of Revenue, have clearly held sec. 3 to be inapplicable to this case because no land revenue was assessed on the land in question. Sec. 4 on which reliance was placed by the Additional Commissioner, the Board, and the learned counsel for the respondents, reads of follows: "4. Conversion of kind-rents into cash-rents. In areas to which this Act is made applicable the Tehsildar shall, on his own motion or on application being made to him in this behalf, fix cash rents on the basis of assessed revenue rates in the adjoining settled villages for similar soil classes. The rates so fixed shall be announced in the village and posted at a conspicuous place in the Tehsii headquarters and village Panchayatghar. Appeals against orders of the Tehsildar shall be heard and disposed of by the Collector and shall be filed within a period of 30 days from the date of the order. The order of the Collector shall be final. " The Board of Revenue observed as follows: "here the cash-rent payable by the appellant to the Government is capable of being fixed and it is that cash rent which the appellant can charge. It has been rightly held therefore by the learned Additional Commissioner that the appellant was only entitled to the payment of arrears of rent according to the 3 times Chahi rent already fixed for the village and the question therefore of fresh determination of the cash-rent in the holding does not arise. " Now it is not in dispute that no cash rent was fixed in regard to this holding, because neither suo moto nor on any application did the Tehsildar notify the fixation of cash rent for the area in which the land in dispute is situated. The reasoning given by the learned members of the Board of Revenue suffers from an obvious fallacy of begging the question. The argument is that because rent is capable of being fixed for the area and because the rent has been fixed in the village, therefore, that becomes the standard rent for the holding in question. In our opinion the conclusion is erroneous. Sec. 4 provides for a given situation, prescribes a procedure and is an appealable order. The steps having not been followed, it was unwarranted in law to apply the provisions of sec. 4 to the facts of this case by analogy. After having applied sec. 4 the learned members of the Board then travelled to sec. 3 and observed that because the land was situated in urban area the dash rent could not be more than 3 times of land revenue of Chahi land. This was also erroneous because the basis premise was erroneous. Although in the petition grounds have been raised regarding the validity of the Act but no arguments were advanced on the subject and, therefore, we need not say anything about it. Now comes the question of what relief are the petitioners entitled? On behalf of the respondents it was urged that the petitioners were only entitled to get the order of the Board of Revenue quashed. Reliance was placed on Prem Sagar vs. S. V. Oil Company (l ). In para 22 of the judgment the Supreme Court has observed, - "incidentally, we ought to point out that even if the Division Bench was right in holding that the impugned order should be corrected by the issue of a writ of certiorari, it would have been better if it had not made its own findings on the evidence and passed its own order in that behalf In writ proceedings if an error of law apparent on the face of the record is disclosed and a writ is issued, the usual course to adopt is to correct the error and send the case back to the Special Tribunal for its decision in accordance with law. It would, we think, be inappropriate for the High Court exercising its writ jurisdiction to consider the evidence for itself and reach its own conclusions in matters which have been left by the legislature to the decisions of specially constituted Tribunals. " Before the Supreme Court it was an employee of Messrs. Standard Vacuum Oil Company, Madras, who had filed an appeal before the Addl. Commissioner for workmen's compensation under sec. 41 of the Madras Shops and Establishments Act, 1947. The Commissioner recorded the evidence of the parties and came to the conclusion that the employee Prem Sagar was the servant of Messrs. Standard Vacuum Oil Company Madras, and he was not occupying the position of management The oil Company challenged the decision of the Commissioner before the High Court by means of a writ. Balakrishna Ayyar, J, took the view that the appellant was in a position of management and he did not agree with the conclusion of the Commissioner, but held that because the question involved was one of fact, it was not open to him to issue a writ of certiorari. This decision was challenged by the respondent under Latters Patent before a Division Bench of the Madras High Court which held that the view taken by Baiakrishna Ayyar, J. was an unduly narrow view about the scope of the High Court's jurisdiction under Art. 226 and allowed the writ of the company. It was in this context that the aforesaid observations were made by their Lordships of the Supreme Court. In the case before us, both, the learned Additional Commissioner II, Jaipur, and the learned members of the Board of Revenue proceeded on the assumption that the rent was payable by the Thekedar in accordance with the standard rent fixed under sec. 4 when no such rent was fixed. It is the petitioners' case before us that there was no fixation of cash rent as provided in sec. 4 of the Act. The question therefore, which confronts us for an answer is that what relief should be given in a situation such as this.
(3.) LEARNED counsel for the petitioners has brought to out notice a number of cases from which the nature of the relief that can be granted in a writ of certiorari, can be spelt out. The first is Han Vishnu Kamath vs. Ahmad Ishaque (2 ). In this case in an election to the House of People in 1952, Ahmad Ishaque was declared elected. The election petition filed by Hari Vishnu Kamath was rejected and the election of Ahmad Ishaque was upheld. Shri Kamath submitted a petition under Art. 226 of the Constitution in the High Court of Nagpur praying for the issue of a writ of certiorari for quashing the decision of the Election Tribunal on the ground of its bring illegal and without jurisdiction. The writ petition was rejected. On a certificate an appeal was filed before the Supreme Court and their Lordships of the Supreme Court allowed the appeal and quashed the judgment of the High Court as well as of the Election Tribunal and set aside the whole election. The relevant observations in this context are contained in para 38, which read: "in the result, we must hold that in maintaining the election of the first respondent on the basis of 301 votes which were liable to be rejected under Rule 47 (1) (c) the Tribunal was plainly in error. Mr. Chatterjee would have it that this error is one of jurisdiction. We are unable to take this view, because the Tribunal had jurisdiction to decide whether on a construction of Section 100 (2) (c) it could go into the fact of breach of Rule 23, and if it committed an error, it was an error in the exercise of its jurisdiction and not in the assumption thereof. But the error is manifest on the face of the record and calls for interference in certiorari. " Thus even in a case where there was a manifest error on the face of the record, the entire proceedings were quashed and the election was set aside. The next case is Narendar Kumar vs. Custodian General of Evacuee Property in India. New Delhi (3 ). In this case Gangadhar Vidhani had sold his house for Rs. 26,506/- on 26 7 45 to Mst. Sultan Jahan Begam under a sale-deed. Mst. Sultan Jahan Begam migrated to Pakistan and the house became an evacuee property in the year 1948 and vested in the Custodian. In Feb, 1949 Narendra Kumar and others filed a suit in a Civil Court at Delhi claiming that the sale by their father of the joint family property during their minority was without legal necessity and would not affect the rights of the petitioners. The Custodian contested the jurisdiction of the Court under the provisions of sec. 43 of Ordinance 27 of 1949 which is the same as sec. 45 of the Act of 1950, and an issue was framed on the point, besides issues regarding the validity of the sale and the nature of the property. On July 10, 1950, the parties arrived at a compromise that if the plaintiffs deposited Rs. 26,000/- in Court by August 22, 1950, their suit would be decreed and failing which the suit would stand dismissed. The amount was deposited and the suit was decreed. Subsequently the authorised Deputy Custodian by his order dated September 30, 1954, held that the decee of the civil court was void for want of jurisdiction and the property continued to be an evacuee property. The petitioner were given liberty to withdraw the amount of Rs. 26,000/-, deposited by them. A revision application was filed before the Deputy Custodian-General, who upheld the order of the authorised Deputy Custodian. On a petition under Art. 226 of the Constitution, a writ of certiorari was issued and the orders of the authorised Deputy Custodian and the Deputy Custodian-General were quashed on the ground that they suffered from an error manifest on the face of the record. In Basudeb Prasad Modi vs. Biswanath Modi (4) an order was passed by the District Magistrate, Cuttak in his capacity as Chairman of the Municipal Council by which no additions were allowed either in the background or in the open verandah in the first floor and alterations within the existing building were allowed. An appeal was taken to the Revenue Divisional Commissioner from the order of the District Magistrate, Cuttak. The former quashed the order of the District Magistrate and remanded the case for fresh inquiry and disposal to the District Magistrate, Cuttak. On a writ petition under Art. 226 of the Constitution of India, the order of remand was set aside. Subsequently all appeals pending before the Revenue Divisional Commissioner were transferred to the Board of Revenue. The petitioner Basudeo Prasad applied to the Board of Revenue for deciding the case on merits, as the order of remand had been set aside. The Board of Revenue said that the appeal could not be heard on merits, as the order of the Revenue Divisional Commissioner had been set aside. Against this order, a petition was submitted under Article 226 of the Constitution for issue of a writ of certiorari. This order of the Board of Revenue refusing to hear the appeal on merits was set aside and the case was sent back to the Board of Revenue for deciding the appeal on merits, because the High Court had not expressed any view on the merits of the case and something remained to be decided. ;