- (1.) THIS is a reference from the Division Bench consisting of Sarvshri M. U. Menon and Z. S. Jhala on the point of law arising out of an appeal in the case of Shri Shiv Narain vs. The State of Rajasthan.
(2.) THE reference has not been precisely framed by the aforesaid Division Bench. However, the purport of the reference to this larger Bench could be briefly stated as follows: Whether the effect of proviso to clause 2 of the, Second Schedule of the Jagirs Act 1952 is that a fixed sum of money which was received or would have been received by a Jagirdar from any person in respect of any of the aforesaid heads of income mentioned in Schedule II should be allowed to Jagirdar and be substituted for the income from any such head notwithstanding anything contained in cl. 3 of the same Schedule, or, whether in the alternative, the rule laid down by an earlier Division Bench in appeal No. 43 of ,1960 (District Chittorgarh), Shri Udailal s/o Nandlal vs. THE State of Rajasthan decided on 6. 1. 1961 be followed, wherein it was held that, the proviso to cl. 2 of the Second Schedule, would not govern the provisions relating to the income from rent as it would lead to an absurd result. If this were allowed it would mean that whatever might be the assessed rate of rent, a jagirdar would always circumvent it by requiring a tenant to enter into an agreement for a different rate or rent. This interpretation allowing the difference in land rate, will also negative the salutary principle of fixity of rent. In other words, the reference would mean whether the income from rent and revenue should continue to be calculated under cl. 3 of the Second Schedule on the basis of the principle laid down in secs. 6 and 7 of the Jagirs Act, where the jagir land is settled or unsettled respectively, or whether the jagirdar should be allowed to claim a fixed sum of money which he was receiving or would have received from his tenants over and above the prescribed rent rates or the rent rates assessed in unsettled jagir lands on the principle laid down in sec. 7 of the Act. Shri R. N. Sharma, counsel for the appellant argued that the language of the proviso to cl. 2 of the Second Schedule was so clear that it excluded the application of cl. 3 of the Second Schedule in calculation of income from rent, where a jagirdar had been receiving a fixed sum of money, and the rules laid down by the Board of Revenue in the case of Udailal s/o Nandlal vs. The State of Rajasthan, should not apply. He also urged that the intention of the Legislature was clear from the fact that initially this proviso to cl. (e) was omitted in the Jagir Ordinance, but when the IXth amendment was made and this Ordinance became Act No. 43 of 1958, this proviso was again restored. He also urged on the basis of several rulings that while interpreting the statutes, a proviso is always inserted to allay fears or remove doubts regarding the application of particular sections in the Act. He cited Rambul Singh petitioner vs. Board of Revenue for Rajasthan, opposite party (AIR 1957 Raj. p. 21) to show that while interpreting the statutes where the language of the Act is clear and unambiguous the parties are not permitted to interpret the proviso in their own way. He also quoted Chitley's. Code of Civil Procedure (Edition 1964) at page 35 Note 14 to show that the proviso is subordinate to the main enactment and it is incorporated to allay fear, offer explanation or to provide exceptions. He further argued that where a proviso provides a substantive law, it cannot be controlled by an Act. He cited A. W. Meads vs. Emperor (AIR 1945 Federal Court p. 21) to show that the court should not interpret the law on the sole basis of results when the language is clear. Shri Sogani appearing amicus curie supported Shri Ridh Narain Sharma by pleading that the question of payment of compensation under the Jagir Act is purely arbitrary and market values are not to be taken into account. Therefore, instead of arbitrarily determining the amount of income under various sources, an agreed sum as provided under proviso to cl. 2 may be appropriately taken as the income of the claimant. The legislature in inserting the proviso had expressed their intention clearly. The language also lends itself to no other interpretation. Shri P. D. Kudal,. the Government Advocate strongly opposed the argument advanced by the counsel for the appellant and pleaded that the proviso to clause 2 should be interpreted in consonance with the scheme of the Act so as to render a harmonious construction of the various provisions thereof. He, therefore, urged that if a fixed sum was allowed to the claimant appellant instead of the settled or assessed rent under the proviso to clause 2 of the Second Schedule, the provisions contained in secs. 6 and 7 of the Act would be made nugatory. He cited Cheladman Venkata Ram Rao vs. Engu Narayana (AIR 1963 Andhra Pradesh page 171), and Siraji-ul-Haq Khan vs. The Sunni Central Board of Wakf, U. P. (AIR 1959 Supreme Court page 198 ). Shri G. C. Kasliwal, Advocate General of the Government of Rajasthan also appeared and argued that the wording of the proviso in question is clear. The object of inserting the proviso was to minimise the difficulties of calculation. He, therefore, urged that clause 3 of the Second Schedule does not come in the way of disallowing an income to a jagirdar which he might claim under clause 2 as an agreed or fixed sum of money by way of rent. We have considered the arguments advanced by all the sides and perused the order of reference as well as the rule laid down in the previous judgment of the Division Bench, Udailal versus The State of Rajasthan, and have closely examined the relevant proviso to clause 2 of the Second Schedule of the Act. Before we determine the law point under reference, we may examine the relevant provisions of the Jagir Act. The Second Schedule to the Act lays down the principles for the determination of gross income, the net income and the payment of compensation to a jagirdar claimant. Clause 2 recites the various heads from which the gross income of a jagirdar for the basic year has to be calculated. The proviso to clause 2 runs as follows: "provided that where a jagirdar received, or would have received, a fixed sum from any person in respect of any of the aforesaid heads of income or any part thereof, such fixed sum shall, notwithstanding anything contained in clause 3 be substituted for the income from any such head or part thereof. " Clause 3 runs as follows: 3. Calculation of income from rent: "the income from rent shall be calculated in accordance with the provisions of sec. 6 and 7. " Clause 2 (a) relating to the gross income from rent and revenue runs as follows: (a) "income from land revenue and rents from occupied lands which accrued to him or in relation to a jagir land resumed on or after the 20th day of August, 1958 would have accrued to him, but for resumption thereof. " From the various rulings cited and arguments advanced by the counsel who appeared for and against the proposition of law referred to us, there seems to be no conflict with regard to the well settled principle of interpretation laid down by the Supreme Court, Federal Court and the various High Courts. On the side of the appellants, it has been properly argued that where the language of the statute is clear and unambiguous the parties are not permitted to interpret the statute in any other way. On the side of the Government Advocate, it was contended while agreeing with the general principles of interpretation of statutes laid down by the various High Courts and Supreme Court that where two sections in a statute are contradictory to each other, the interpretation by the Court should be a harmonious one and the two sections should be properly reconciled. Thus, the question before us now is whether there is a real conflict between the proviso to clause 2 of the Second Schedule and Clause 3. As stated above, clause 3 of the Schedule requires that the rental income from jagir land shall be calculated in accordance with provisions of sec. 6 and 7 of the Jagir Act, whereas proviso to clause 2 says that where a jagirdar received or would have received a fixed sum from any person in respect of any of the heads of income in clause 2, that income should be substituted for the income for any of the heads enumerated in clause 2 notwithstanding anything contained in clause 3. The intention, therefore, of the legislature is clear that where the rental income is an agreed income between the land-holder and a tenant it should always be substituted and no income should be calculated under the provisions contained under secs. 6 and 7. This in our opinion is the plain and clear meaning of the proviso to Cl. 2. This proviso further lays down that this fixed sum of money should be allowed to a jagirdar notwithstanding anything contained in Clause 3. The Government Advocate's only fear is that if the proviso to clause 2 is interpreted in the manner suggested by the counsel for the appellants, the provisions contained in secs, 6 and 7 for the determination of rental income of the jagir land would be defeated. The Government Advocate rightly feels that the proviso to clause 2 does not interfere in the calculation of income from the different sources other than rent and revenue as laid down in clause 2 of the Second Schedule, because none of these sources of income are settled by law and they would naturally differ in each case. But the fear, of the Government Advocate that the interpretation of proviso to cl. 2 in the manner proposed by the counsel for the appellant, would lead to an abuse by the land-holder or a jagirdar is unfounded. Chapter IX of the Rajasthan Tenancy Act, 1955 provides for the determination and modification of rent. The above chapter provides how the rent is to be calculated on the basis of rent rates sanctioned for the area. That chapter also provides the maximum rent that could be claimed by an estate holder. The same chapter further provides for the modification of rent by enhancement as well as abatement. In a way Chapter IX of the Rajasthan Tenancy Act controls rent which is payable by a tenant to the State Government as well as to an estate holder. That Chapter also provides the maximum rate of rent in cash as well as in kind. Some of the jagirs, no doubt, were resumed before the passing of the Rajasthan Tenancy Act and their basic year fell prior to the enforcement of the Act, but quite a large number of jagirs came to be resumed after the Rajasthan Tenancy Act came into force and thus the provisions with regard to the rent under the Rajasthan Tenancy Act would naturally apply to all such estate-holders. Therefore, if any such estate-holder entered into an agreement with a tenant for rent in excess of and contrary to the provisions contained in the Tenancy Act, that agreement would be illegal and it would not be enforceable in law, nor can such agreed rent be made the basis of calculation of the rental income of the jagirdar for the purposes of payment of compensation. In the case of those jagirs which were resumed prior to the date of enforcement of the Rajasthan Tenancy Act and the basic year of which falls earlier than the aforesaid date, there is no alternative, but to accept those rents which were agreed or settled between the jagirdar and a tenant under the existing Tenancy Law. In cases where no settlement was made and Batai rents were enforceable, the provision of assessment of those rents on the basis of Sec. 7 of the Jagir Act would come into operation and the rents would have to be determined accordingly. Thus, in our opinion the proviso to Clause 2 of the Second Schedule does not come into real conflict with Clause 3 of the same Schedule. In the result, we find that the fears of the Government Advocate are entirely unfounded. The Advocate General, also, after pointing out the various provisions for the determination of rental income urged that the proviso to clause 2 of the Second Schedule does not, in any way, come into conflict with clause 3 but on the contrary, its object was to minimise calculation difficulties. The Advocate General, therefore, was of the opinion that the meaning of the proviso to clause 2 was clear and called for no other interpretation. Accordingly, we feel that the decision of the Board of Revenue in appeal No. 43 of 1960, district Chittorgarh in the case of Udailal vs. The State of Rajasthan decided on 6. 1. 1961 referred to in the present order of reference by the Division Bench cannot be accepted as sound. The learned Members of the Board in deciding that case and interpreting the proviso to clause (2) of the Second Schedule ignored the provisions contained in Chapter IX of the Rajasthan Tenancy Act regarding the determination and modification of rent. Instead, the learned Members of the Board decided that case where income from rent is not being received by the jagirdar, but instead thereof a fixed sum was allowed to him as that application was capable of offending against the principle of fixity of rent. At the same time, the present reference before us has also been made without examining the provisions contained in Chapter IX of the Rajasthan Tenancy Act. In our opinion, however the proviso to clause 2 of the Second Schedule would apply to clause 3 of the Second Schedule in the determination of the rental income of a jagirdar subject however to the provisions contained in Chapter IX of the Rajasthan Tenancy Act with regard to the determination and modification of rent. Sec. 93 of the Rajasthan Tenancy Act provides that every tenant is liable to pay rent in accordance with the provisions of that Act. Sec. 94 provides that a tenant on being admitted to the occupation of land is liable to pay such rents agreed upon between him and his land-holder. Under sec. 97 the State Government has the authority to prescribe maximum cash rents. Sec. 98 provides that in those arears where land revenue has been settled and rent is payable by a tenant in cash, the estate holder is entitled to recover rent equivalent to 3 times the amount of such land revenue. Sep. 99 provides that where rent has been settled, the maximum rent recoverable by a tenant from his sub-tenant should not exceed twice the amount payable by such tenant to the Government. This applies to the cases where a Khudkasht holder is entitled to recover rent on an agreed basis from his subtenants. Sec. 100 gives the concession of higher maximum rents to a widow, a minor or a student below 25 years of age by permitting them to collect rent to the extent of 1, 1/2 times the maximum prescribed u/ss. 98 and 99 where the holding is in an urban area. Some of the provisions under the aforesaid Chapter relate to the enhancement and abatement of rent. Thus, when the proviso to clause 2 of the Second Schedule is to be applied to the determination of an agreed rental income claimed by a jagirdar it has to be done subject to the provisions contained in Chapter IX of the Rajasthan Tenancy Act relating to the legal rental income admissible to a claimant jagirdar. Any agreement relating to a rental income in contravention of the provisions of the Tenancy Act contained in Chapter IX would be illegal in those cases where rent has been determined and fixed under the Rajasthan Tenancy Act. In the case of those resumed jagirs whose basic year falls prior to the enforcement of the Rajasthan Tenancy Act on 15. 10. 55 the proviso to clause 2 of the Second Schedule would have to apply to the rental amount settled or agreed between a jagirdar and a tenant or in accordance with the provisions contained in the tenancy law then in force in that area regulating the rent payable by a tenant to estate-holder. Where no such law for regulating the rent existed the rent agreed to between the tenant and the estate-holder must be taken into consideration for purpose of payment of compensation to him. We, further hold that as far as the other sources of income enumerated in clause 2 of the Second Schedule are concerned the proviso to clause 2 would operate without any reservation. We, therefore, answer the reference in the manner set out above and return this case to the Division Bench for disposal. . ;