- (1.) THIS is a petition under Articles 226 and 227 of the Constitution of India for quashing the orders of the Board of Revenue (hereinafter 'the Board') dated August 20, 1970 and January 15, 1970 (Annex. 4 and 3) by which the order of the Revenue Appellate Authority, Bikaner, Camp Jodhpur dated June 17, 1964 (Anx. 2) was confirmed. The Revenue Appellate Authority, by its order dated June 17, 1964 (Anx. 2) had maintained the order of the S. D. O. (Assistant Collector) Bali, dated February 10, 1964 (Anx. 1 ).
(2.) PETITIONERS Nos. 1 and 2 and one Shivnathsingh (since dead) instituted a suit under S. 124 (4) of the Rajasthan Tenancy Act, 1955 (No. III of 1955) (hereinafter referred to as 'the Act') on September 15, 1959 against the State of Rajasthan (defendant-non-petitioner No. 1), in the Court of the S. D. O. , Bali (non-petitioner No. 4 ). The suit was dismissed on April 12, 1961. On appeal, the Revenue Appellate Authority (non-petitioner No. 3) remanded the case to the court of S. D. O. , Bali on March 13, 1962 and permitted the plaintiffs to convert the suit so instituted into a suit under S. 89 of the Act. Thereafter, petitioners Nos. 1 and 2 and late Shivnathsingh filed a suit under S. 89 in the court of the S. D. O. , Bali on November 1, 1962. This suit was registered as Revenue Suit No. 114 of 1962. During the pendency of the suit, Shivnathsingh died and Smt. Kesar Kanwar (his widow) was substituted as petitioner No. 3. Ex parte proceedings were ordered on March 30, 1962 against the Tehsildar, Desuri as he did not appear despite service. It may be mentioned here that the Tehsildar, Desuri had filed a written-statement in the earlier suit instituted under S. 124 (4) of the Act. It was alleged in the plaint that the petitioners had been in possession of khasras Nos. 275 and 278 including the well known as 'bajuria Dhsemara' situate in village Dhanedi, since generations and the said well was dug by their ancestors, that Mool Singh, Kesar Singh Mehtab Singh, Labu Singh were the Jagirdars of the aforementioned kharas and the petitioners were the istamatars vide document dated Ashad Vadi 7, Vikram Samvat 1946, that since then, they and their ancestors have been paying only Rs. 13/- as 'mukata' in respect of the above fields and that the Jagirdars could not realise anything more than Rs. 13/- from them. Their case further was that the State of Rajasthan, after resumption, wanted to realise from them the rent as entered in the settlement parcha, namely Rs. 321/13 per year issued by the Settlement Department which it could not do so in law. In these circumstances, they prayed for permanent injunction restraining the State from realising more than Rs. 13/- per year for the aforesaid fields as rent from them. The S. D. O. , Bali (non-petitioner No. 4) dismissed the suit on February 10, 1964 and held that there is no provision in the Act under which the rent fixed by the Settlement Department could be varied. Being aggrieved by the judgment of dismissal of the suit, the petitioners preferred appeal but the Revenue Appellate Authority, Bikaner, camp Jodhpur dismissed the appeal on June 17, 1964. He, inter alia, held hat the status of the petitioners (plaintiffs-appellants) having been recognised as khatedars, they are liable to pay rent in accordance with the Parcha Lagaan granted to them which they have willingly accepted. The petitioners assailed the judgment of the Revenue Appellate Authority (non-petitioner No. 3) before the Board by filling a revision against. The Board (non-petitioner No. 2) rejected the revision on January 15, 1970. The petitioners filed a review petition before the Board on January 19, 1970 which was dismissed on August 20,1970 on the ground that no review lay. The petitioners have, therefore, filed the present writ petition for issue of a writ of certiorari or any other appropriate writ, direction or order for quashing the aforesaid orders of the Board and its subordinate revenue authorities mentioned hereinabove. It has also been prayed that the non-petitioners may be permanently restrained from realising rent fixed by the Settlement Department from the petitioners for the fields in dispute. The non-petitioners have contested the writ petition by filing a reply on May 8, 1972. It was, amongst others, contended that the agreement dated Asadh Vadi 7, Vikram Samvat 1946 on which reliance is placed by the petitioners has no binding effect in view of the provisions of s. 3 (4) of the Act and Sections 4, 5 and 6 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (hereinafter referred to as 'the Act of 1952') and the provisions contained in Chapter VIII-C of the Rajasthan Land Revenue Act, 1956 (hereafter called 'the Act of 1956') have full application to the petitioners case. In the writ petition, the petitioners have placed reliance in support of their case on the judgment of the Board dated August 6, 1955 paseed in case No. 28/pali of 1964 Motisingh vs. Moolchand to show that the Board upheld and enforced the agreement in respect of the rent payable under that agreement against the State notwithstanding the rent fixed by the Settlement Department. Mr. Rajendra Mehta appearing for the petitioners contended that an appeal lay from the judgment of the Revenue Appellate Authority upholding the dismissal of the suit of the petitioners by the Sub-Divisional Officer, Bali and the Board had committed an arror apparent on the face of its order in deciding the revision petition filed by the petitioners. He submitted that the petitioners, of course, filed a revision before the Board but in view of s. 224 of the Act, a second appeal lay to the Board and the petitioners are not precluded from challenging the order of the Board dismissing their revision when in fact they were entitled to file an appeal as the scope of the appellate jurisdiction of the Board under S. 224 of the Act is much wider than its revisional jurisdiction under S. 230 of the Act. The petitioners themselves preferred the revision petition before the Board though under S. 224 of the Act, they should have filed a second appeal against the appellate decision of the Revenue Appellate Authority dated June 17, 1964. It has been stated by the petitioners in the writ petition that they preferred the revision before the Board as the order of the Revenue Appellate Authority was wholly without jurisdiction. In our opinion, this cannot be a ground for assailing the impugned orders of the Board of Revenue, for, against the judgment of the dismissal of the suit by the S. D. O. on February 10, 1964, the petitioners rightly preferred an appeal before the Revenue Appellate Authority and it correctly entertained and decided it. In these circumstances, it cannot be said that the judgment of the Revenue Appellate Authority dismissing the appeal was wholly without jurisdiction and even if it was so, a second appeal under S. 224 of the Act lay to the Board. Be that as it may, the Board considered the arguments raised before it on behalf of the petitioners and arrived at the following conclusion,- ". . . . . . An agreement of the nature such as is relied upon, with persons who were themselves grantees, cannot govern the rent payable by the applicant in the changed circumstances. He also, it seems, raised no objection under sec. 166 of the Rajasthan Land Revenue Act to the rent determined nor refused it under sec. 168 thereof. " This finding on merit was given after observing that even apart from the fact that revisional interference in the order of the Revenue Appellate Authority does not appear to be possible as it cannot be considered to have acted beyond its jurisdiction or to have acted in the exercise of its jurisdiction illegally or with material irregularity. While dismissing the review petition filed by the petitioners, the Board had, inter alia, observed that looking to the limited scope of review, there was no justification to admit it and consequently, it was rejected. In these circumstances, it is not open to the petitioners to assail the orders of the Board dated January 15, 1970 and August 20, 1970 on the ground that the Board had committed an error apparent on its face in deciding the revision petition filed by them as revision.
(3.) IT was next contended by Mr. Rajendra Mehta, that the finding of the Board that the agreement of the petitioners Istamrarars with the Jagirdars dated Ashadh Vadi 7 Vikram Samvat 1946 cannot govern the rent payable by the petitioners in the changed circumstances suffers from an arror apparent on the face of the record. In support of his contention, learned counsel strongly relied on the judgment dated August 6, 1955, passed by the Board in case No. 28/pali/of 1964, Appellant Motisingh vs. Respondent-Moolchand in which S. 54 of the Marwar Tenancy Act, 1949 was considered. IT was observed, - ". . . . . . In the present case a dispute arose between the parties as regards the rent and ejectment from this holding and it was decided by the Revenue Minister of the former Jodhpur State on 16-8-1933 that the appellants were liable to pay only a fixed rent of Rs. 20/- p. m. in perpetuity as the land was held by them in Istimrar tenure. This is evidently a decision of the highest court of the then State, former Jodhpur State, and is bound to be operative unless set aside in accordance with law. . . . . . . . . IT, therefore, becomes perfectly clear that the liability of the tenant to pay an enhanced rate of rent was directly in issue in that case and finding thereon was given by the court after enquiry. That decision must remain operative unless set aside in due course of law. The Settlement Officer was perfectly justified in passing the order that he did in the case. There was no ground for the Additional Settlement Commissioner to reverse that order. . . . . . " The Act came into force from October 15, 1955. Sec. 13 of the Act provides for acquisition of the khatedari rights, subject to the exceptions provided in this section. S. 93 lays down that every tenant shall be liable to pay rent in accordance with the provisions of the Act. S. 94 provides that subject to the other provisions of the Act, a tenant on being admitted to occupation of land in liable to pay such rent as may be agreed upon between him and his land-holder. S. 94 is, of course, qualified and governed by Ss. 96 to 105 of the Act and any contract between a tenant and his sub-tenant or a landlord and his tenant is not enforceable in so far as it seeks to determine rent in excess of the limits laid down in Secs. 95 to 105. Sec. 95 is worthy of notice. IT provides that the rent or rate of rent payable by a tenant shall be presumed to be the rent or rate of rent payable by him under sec. 94, until it is varied in accordance with the provisions of the Act. IT is, therefore, clear that S. 95 makes reference to S. 94. Sec. 115 deals with fixation of rent and sec. 118 provides for computation of rent. Next important section is 119 which reads as under, - "sec. 119. Period of currency of rent : When rent in respect of any land has been fixed under sec. 115 or commuted under sec. 118, it shall not be liable to modification until the period of the settlement of the area in which such land lies has come to as end or until it is varied in accordance with the provisions of this Act. " Section 3 deals with repeal and Sub-section (4) thereof reads as under: "sec. 3 (4 ). The provisions of any agreement relating to agricultural tenancies, existing and operative at such commencement, which are repugnant to or inconsistent with, the provisions of this Act, shall, subject to such savings as are elsewhere provided in this Act or in The Rajasthan Revenue Law (Extension) Act, 1957, become void and cease to be operative to the extent of such repugnancy or inconsistency. " This sub-section declares void and inoperative agreements relating to agricultural tenancies existing & operative at the commencement of the Act which are inconsistent with or repugnant to the Act. Sub-section (4) of s. 3 of the Act becomes applicable to a case when it is shown that there was an agreement relating to agricultural tenancies between the parties at the commencement of the Act and such an agreement was repugnant to or inconsistent with the provisions of the Act. The Act permits periodical increase in the rate of rent payable by a tenant. During the settlement operations, the rate of rent has been varied. Thus, the agreement dated Ashadh Vadi 7, Vikram Samvat 1946 being repugnant and inconsistent with the provisions of the Act, has become void and cease to be operative and the petitioners are liable to pay rent in accordance with the provisions of S. 93 of the Act. The rate of rent payable under the agreement of Ashadh Vadi 7, Vikram Samvat 1946 is, therefore, not applicable and it cannot have the binding effect so far as the question of determination of rent between the State and the petitioners are concerned. IT is not in dispute that the petitioners accepted the khatedari parcha of the land and had become khatedar tenants under the Act. The status of the petitioners having been recognised as of khatedar tenants, they are liable to pay rent in accordance with the Parcha Lagan granted to them which they had willingly accepted. IT is, therefore, quite evident that the agreement relied on by the petitioners which was between the grantee-Jagirdars and the petitioners is not binding on the State, after the resumption of the Jagir under the Act of 1952. We may also mention that the petitioners did not object to the rent fixed in the Parcha Lagan issued by the Settlement Department. S. 166 of the Act of 1956, inter alia, provides that if the tenant presents any objection within 30 days of the issue of the proclamation under sub-section (4) of S. 164, the Settlement Officer shall hear it, dispose of it in accordance with law and after recording his order, determine the rent of holding. Admittedly, no such objection was preferred by the petitioners under S. 166 of the Act of 1956. Section 167 of the Act of 1956 provides that the rent shall be payable from the date of the commencement of the settlement operations which may be earlier, if the Settlement Officer directs as such Section 168 of the Act of 1956 lays down that any tenant for whose holding rent has been determined by an order of the Settlement Officer under S. 167, may, within 30 days from the date of such order, refuse in writing to accept the rent determined. The petitioners did not refuse in writing to accept the rent determined. It is clear from the order of the Revenue Appellate Authority (Anx. 2) dated June 17, 1964 that was paid by the petitioners to the grantee-Jagirdars was not rent but only 'mukata' amount or the contract money for holding the land. The petitioners are, therefore, not entitled to any reduction of rent fixed as a result of settlement. Motisingh's case (Supra) decided by the Board is not of any help to the petitioners, for, (i) the decision was rendered prior to the coming into force of the Act and (ii) the status of the so-called tenants in that judgment has been mentioned as Istamarars which clearly shows that the agreement referred to in that judgment should have been made between grantees and sub-grantees as the word 'istamrar' is used in connection with the grantee. It is, therefore, clear that the revenue authorities were right in not deciding the suit of the petitioners on the basis of Moti Singh's case (Supra) for, it cannot be availed of for the purpose of determination of rent between the State and the khatedars. ;