Thakur Kesari Singh vs The State Of Rajasthan And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 277 of 1955

Decision Date: 19 October 1960

Coram: Syed Jaffer Imam, A.K. Sarkar, Raghubar Dayal

In the matter of Thakur Kesari Singh versus The State of Rajasthan and others, the Supreme Court of India delivered its judgment on 19 October 1960. The opinion was authored by Justice Syed Jaffer Imam, who sat on the bench together with Justice A.K. Sarkar and Justice Raghubar Dayal. The case was cited as 1961 AIR 432 and 1961 SCR (2) 47.

The dispute arose under the Landlord and Tenant law concerning a general refusal by tenants to pay rent. The Government of Rajasthan had issued a notification under section 85 of the Marwar Tenancy Act, 1949 (XXXIX of 1949), authorising the recovery of such rents as arrears of land revenue. Relying on that notification, the appellant, who was a jagirdar, applied to the Collector for the recovery of rents due from his tenants. The tenants, in turn, filed an application with the Collector requesting that notice of the recovery application be served on them and that they be afforded a hearing in accordance with the rule framed under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, section 2.

The Collector rejected the tenants’ request and issued an order directing that the sum found due to the appellant be recovered as arrears of land revenue. The appellant appealed the Collector’s order before the Additional Commissioner, whose decision was affirmed by the Board of Revenue on revision. Before the Board finalised its order, however, the Government rescinded the earlier notification issued under section 85 of the Tenancy Act.

The appellant then approached the Rajasthan High Court under article 226 of the Constitution. The High Court held that although section 85 of the Tenancy Act had not been expressly repealed by the Revenue Courts Act, the rules framed under that section had been superseded, and the failure to comply with the rules prescribed by the later Act constituted a jurisdictional error. Consequently, the High Court set aside the orders directing recovery, holding that the rescission of the notification meant that no further action could be taken by the Collector under that provision.

The Supreme Court examined the statutory framework and observed that section 2 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, did not repeal section 85 of the Marwar Tenancy Act, 1949. The Court noted that the 1951 Act contemplated the continued operation of the 1949 provision, free from any limitation bar, and that the procedural modification required applications under section 85 to be made to the Collector rather than the Deputy Commissioner. The Court further clarified that section 85 envisaged an ex‑parte hearing of the application, and therefore no notice needed to be served on the tenants. It concluded that once a valid notification had been issued and an application duly filed, the subsequent rescission of the notification could not deprive the authority of the power already vested to dispose of the application.

The Court explained that the right conferred by the statutory section was expressly a summary right, and therefore the application filed under that provision was required to be heard ex parte. Because the proceeding was summary in nature, the Court held that there was no legal requirement to serve any notice upon the tenants before the hearing. The Court further observed that it would be erroneous to apply the procedural regime for contested proceedings prescribed in Chapter II of the Rules made under the Revenue Courts (Procedure and Jurisdiction) Act, 1951, to the present application, since doing so would completely frustrate the purpose of the summary procedure. Moreover, the Court stated that once a notification issued under the relevant section had been promulgated and an application was subsequently filed in accordance with that notification, a later rescission of the notification could not divest the competent authority of the power that had already vested in it to dispose of the pending application.

In the matter before it, the appellant was identified as the Jagirdar of Thikana Rakhi, a feudal estate located in the Marwar (Jodhpur) region of the State of Rajasthan. Within the geographical limits of Thikana Rakhi lay the village of Khakharki, where the appellant maintained a number of tenants who paid rent based on a specified share of the agricultural produce from the land. At the relevant time, the relationship between landlord and tenant in Marwar was governed by the Marwar Tenancy Act of 1949, hereinafter referred to as the Tenancy Act, which had been enacted by His Highness the Maharaja of Jodhpur prior to the merger of the former State of Jodhpur into the State of Rajasthan. Although the Tenancy Act has since been repealed, the Court confined its analysis to the period during which the Act remained in force. Section 78 of the Tenancy Act stipulated that when rent was payable either by division of the produce or on the basis of an estimate or appraisal of the standing crop, either the landlord or the tenant could apply to the Tahsildar for a determination of the division, estimate, or appraisal where the parties could not reach an amicable settlement. Section 79 prescribed the procedure to be followed at the hearing of such an application and provided that any rent amount assessed by the Tahsildar as a result of the application would operate as a decree for arrears of rent. On 31 October 1950, the appellant, experiencing difficulty in collecting rent from his tenants in Khakharki, lodged an application under Section 78 of the Tenancy Act before the Tahsildar of Merta, the administrative subdivision that included Khakharki. While this application was still pending, the Government of Rajasthan issued a Notification under Section 85 of the Tenancy Act. The Notification, dated 22 February 1951 and bearing reference No. F. 4(74) Rev./1/51, asserted that cultivators in certain villages listed in the accompanying Schedule, including Khakharki, had refused to pay rent to the persons entitled to receive it, and therefore declared that such rents could be recovered as arrears of land revenue. The Notification was subsequently published in the Official Gazette on 3 March 1951, thereby conferring on the appellant the right, under Section 85, to have the rents due from the Khakharki tenants for the fiscal year 1950‑51 treated as arrears of land revenue and recoverable accordingly.

The Government of Rajasthan, exercising the authority granted by sub‑section (1) of section 85 of the Marwar Tenancy Act, 1949 (No. XXXIX of 1949), issued a notification declaring that rents could be recovered as arrears of land revenue. This notification, signed by His Highness the Rajpramukh and the Secretary to the Government of Rajasthan, Revenue Department, was published in the Official Gazette on 3 March 1951. One of the villages listed in the schedule to the notification was Khakharki. Consequently, the appellant, under section 85, became entitled to have the rents due from the tenants of Khakharki realised as arrears of land revenue. On 9 March 1951 he filed an application under that section in the Court of the Collector, Nagaur, seeking recovery as arrears of land revenue of the rents for the year 1950‑51 from those tenants who had refused to pay.

Subsequently, on 26 March 1951 the appellant’s earlier application under section 78 of the Tenancy Act was dismissed, the reasons for which are not material to the present appeal. On 29 March 1951 the tenants filed an application in the same Collector’s Court requesting that notice of the appellant’s application under section 85 be served upon them and that they be heard, as required by the rules framed under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act of 1951, hereinafter referred to as the Revenue Courts Act, which governed the said application. The Revenue Courts Act was an act enacted by the Rajpramukh of the State of Rajasthan, to which the former State of Jodhpur had been integrated, and it applied throughout Rajasthan, including the Marwar area. The Act came into force on 31 January 1951. The Collector rejected the tenants’ application.

Thereafter, on 5 April 1951 the Collector passed an order finding that a total sum of Rs 38,587‑3.0 was due to the appellant from the tenants on account of rent, other charges and court fees. The Collector forwarded this order to the Tahsildar of Merta for recovery of the sum as arrears of land revenue. The tenants appealed the validity of the Collector’s order to the Additional Commissioner, Jodhpur. The Additional Commissioner dismissed the appeal on 2 November 1951. The tenants then moved a revision before the Board of Revenue, Rajasthan. The Board held that the Revenue Courts Act had not altered the procedure to be followed in hearing an application under section 85 of the Tenancy Act, but it remanded the matter to the Additional Commissioner because the tenants asserted that the Additional Commissioner had not addressed other points raised in their appeal.

The Additional Commissioner thereafter considered those additional points and again dismissed the tenants’ appeal on 7 July 1952. The tenants filed a further revision before the Board of Revenue against the order of 7 July 1952. Before the Board could determine that revision, the Government of Rajasthan published, on 1 November 1952, another notification rescinding the earlier notification dated 22 February 1951 that had been issued under section 85 of the Tenancy Act. The tenants argued that, in view of the rescission, no further proceedings could be taken under section 85 for recovery of rent as arrears of land revenue. The Board of Revenue rejected this argument and all other contentions raised on behalf of the tenants, and dismissed the revision case on 29 September 1953.

After the Additional Commissioner had initially ruled on the tenants’ appeal, several issues that had been raised by the tenants remained unresolved. The Additional Commissioner subsequently heard the tenants on these outstanding points and, on 7 July 1952, delivered a second dismissal of their appeal. Unwilling to accept this second order, the tenants filed a revision before the Board of Revenue, challenging the Additional Commissioner’s decision dated 7 July 1952. Before the Board could reach a conclusion on that revision, the Government of Rajasthan issued, on 1 November 1952, a fresh Notification that expressly rescinded the earlier Notification dated 22 February 1951, which had been issued under section 85 of the Tenancy Act. One of the principal arguments raised before the Board of Revenue in the revision proceedings was that, because the earlier Notification had been withdrawn, no further action could be taken under section 85 of the Tenancy Act for the purpose of recovering rent as arrears of land revenue. The Board of Revenue rejected this contention, together with all other arguments presented on behalf of the tenants, and on 29 September 1953 dismissed the revision petition. Consequently, forty‑three of the tenants filed a petition in the Rajasthan High Court seeking a writ of certiorari to annul the orders that had been passed by the Collector, the Additional Commissioner and the Revenue Board.

The High Court allowed the petition, set aside the three orders, and held that, since the Notification issued under section 85 of the Tenancy Act had been cancelled, the Collector of Nagaur could not institute any further proceedings for the realisation of rent arrears as land‑revenue arrears. The High Court also granted a certificate indicating that the matter was appropriate for appeal to the Supreme Court, thereby giving rise to the present appeal. The amount of rent that had been adjudicated as due had not yet been realised by the Tahsildar, apparently because the proceedings remained pending. The respondents to the appeal comprise the State of Rajasthan, several revenue officers of that State, and the tenants, although only some of the tenants contested the appeal while the remaining respondents did not appear before the Court. For reference, section 85 of the Tenancy Act reads as follows: “(1) In case of any general refusal to pay rent to persons entitled to collect the same in any local area the Government may, by notification in the Official Gazette, declare that such rents may be recovered as arrears of land revenue. (2) In any local area to which a notification made under sub‑section (1) applies, a landlord or any other person to whom an arrear of rent is due may, notwithstanding anything to the contrary in this or any other enactment for the time being in force, instead of suing for recovery of the arrear under this Act, apply in writing to the Deputy Commissioner to realise the same, and the Deputy Commissioner shall, after satisfying himself that the amount claimed is due, proceed, subject to the rules made by the Government, to recover such amount with costs and interest as an arrear of land revenue. (3) The Deputy Commissioner shall not be made a defendant in any suit in respect of an amount”.

The provision continued that no order issued under the section could prevent a landlord from suing or applying for any sum of money that remained due to him and had not been recovered through the mechanism provided in that section. Likewise, it was held that a person from whom an amount had been collected under the section in excess of what was actually owed could recover the surplus by filing a suit against the landlord or any other party whose application had resulted in the realisation of the arrear. The respondents, appearing before the High Court, contended that section 85 of the Tenancy Act had been expressly repealed by the Revenue Courts Act, and therefore no action could be initiated under the repealed provision after the latter Act had come into force. Although the Revenue Courts Act itself was later repealed in 1955, after the High Court’s judgment, the Court observed that this subsequent repeal did not affect the issue that required determination. The long title of the Revenue Courts Act declared that its purpose was to provide for and regulate the jurisdiction and procedure of revenue courts and officers throughout Rajasthan. Its preamble explained that, pending the enactment of a comprehensive law covering agricultural tenancy, land tenures, revenue, rent, survey, record, settlement and other land‑related matters for the whole of Rajasthan, it was expedient to regulate the jurisdiction and procedure of revenue courts and officers in relation to matters arising under the laws then in force in the covenanting States of Rajasthan. Jodhpur was one such covenanting State, and the Tenancy Act remained applicable in the territories that formerly formed the Jodhpur State and that, after integration, became part of Rajasthan until the Tenancy Act itself was repealed, as previously noted. Section 2 of the Revenue Courts Act provided that, from the date the Act came into force, all existing laws relating to matters covered by the new Act would be repealed. It was argued that, consequently, section 85 of the Tenancy Act was repealed by virtue of this clause. The High Court was unable to accept this argument, and the present Court concurred. The reasoning was that section 85 would be repealed only if the Revenue Courts Act contained a provision dealing with the same subject matter. A careful examination revealed that the Revenue Courts Act contained no such provision; its scope was limited to the jurisdiction and procedural aspects of revenue courts and did not address any substantive rights. This observation was uncontroversial. Accordingly, section 85, once the necessary notification was issued, created a substantive right in the landlord to have the unpaid rent realised as arrears of land revenue. No provision in the Revenue Courts Act was found to affect or extinguish that substantive right.

The Court observed that the Revenue Courts Act contained no provision dealing with the substantive right created by section 85 of the Tenancy Act, and therefore no basis existed for the contention that that section had been repealed by section 2 of the Revenue Courts Act. It then referred to Schedule 1 to the Revenue Courts Act, which listed the suits and applications that could be tried by a Revenue Court and prescribed the limitation periods and court fees applicable to them. The schedule was divided into several groups, and Group C listed applications that could be tried by a Collector. Item 2 of this group concerned applications “for realisation of rent as land revenue on the general refusal to pay rent”. Regarding the limitation period for such applications, the schedule stated that none existed. The Court held that Item 2 of Group C did not, by itself, confer any substantive right to make an application for the realisation of rent as land revenue. The purpose of the schedule, the Court explained, was derived from sections 7, 9 and 10 of the Act, which respectively provided that the jurisdiction of the various revenue courts, the limitation periods for proceedings maintainable in those courts, and the court fees payable thereon were as set out in the schedule. Because the schedule was not operative independently, Item 2 of Group C did not create a right to apply for collection of rent as arrears of land revenue.

Nevertheless, the Court noted that the inclusion of such an application in the schedule clearly indicated that the Revenue Courts Act recognised the competence of that application. Since the Act itself did not expressly authorise the application, the Court reasoned that it must be competent under other existing laws mentioned in the preamble and in section 2 of the Act, one of which was section 85 of the Tenancy Act. Consequently, the Court concluded that the Revenue Courts Act, rather than repealing section 85 of the Tenancy Act, contemplated its continued operation. The Court then referred to Chapter XIII of the Tenancy Act, which dealt with procedure and jurisdiction and comprised sections 118 to 144. Section 118 provided that all suits and applications of the nature specified in the second schedule to the Act shall be heard and determined by a Revenue Court. Section 124 required that all suits and other proceedings specified in the second schedule be instituted within the time prescribed in that schedule. Section 129 empowered a Deputy Commissioner to dispose of applications specified in Group E of the second schedule. The Court deemed it unnecessary to discuss the remaining sections of that chapter. Finally, the Court examined the second schedule and observed that Group E concerned applications triable by a Deputy Commissioner, and that Item 4 of this group dealt with applications under section 85 “for collection of rent as land revenue in the event of general refusal to pay”.

In the Tenancy Act, section 85 provides that rent may be treated as land revenue when tenants refuse to pay generally. The statute specifies that the limitation period for applications filed under this provision continues for as long as the notification remains in force, and that the period begins when the notification authorized by the section is published in the Official Gazette. The Revenue Courts Act later intervenes by stipulating in section 7 that all suits and applications described in both the first and second schedules must be heard and determined by a revenue court. Section 4 (xvi) of that Act defines a revenue court to include, among others, the Board of Revenue, the Commissioners and the Collectors. Earlier it was noted that item 2 of group C in the first schedule of the Revenue Courts Act refers specifically to an application under section 85 of the Tenancy Act, and that the item provides that no limitation period shall apply to such an application and that the application must be made to a Collector. Consequently, for an application made under section 85 the Revenue Courts Act replaces the Deputy Commissioner, who was originally the appropriate authority under the Tenancy Act, with the Collector, and it also removes any limitation bar that previously existed. It follows, therefore, that sections 7 and 9 of the Revenue Courts Act correspond to the matters dealt with in sections 118, 124 and 129 of the Tenancy Act, and that, by virtue of section 2 of the Revenue Courts Act, those provisions of the Tenancy Act are deemed repealed. The repeal also logically extends to item 4 of group E in the second schedule of the Tenancy Act. The net effect of these changes is that, since the Revenue Courts Act came into force, there is no longer any prescribed limitation period for filing an application under section 85, and that such an application must be presented to a Collector. In the present case, the appellant filed the section‑85 application to the Collector, and at the time of filing the Revenue Courts Act was already in force. Although the repeal of sections 118, 124 and 129 does not alter the substantive content of section 85 except as already explained, the parties argue that despite section 85 remaining in force, the procedural rules applicable to an application under that section are now to be read in accordance with rule 114 of Chapter IV of the rules framed under the Revenue Courts Act, which incorporate the procedures laid down in Chapter 11 of those rules. The contention is that the revenue authorities failed to follow those procedural requirements, resulting in a patent error apparent on the face of the orders and rendering those orders liable to be set aside. Accordingly, the Court must now refer to the rules framed under the Revenue Courts Act to determine whether the procedural lapse indeed warrants nullification of the orders.

Section 85 of the Tenancy Act prescribed that any application made by a landlord under that section had to be accompanied by a list in a prescribed format. The list was required to set out the landlord’s dues for canal charges, rent, interest and court fees. Rule 34 provided that the Deputy Commissioner must verify the items on the list either by examining the Patwari’s records or by any other suitable method, and then enter in the appropriate column of the form the amounts that the Deputy Commissioner determined to be due to the landlord. After completing this verification, Rule 35 directed the Deputy Commissioner to forward the verified list to the Tahsildar, who was then responsible for realizing the amounts stated in the list on behalf of the landlord.

The tenants argued that the rules made under Section 85 of the Tenancy Act laid down the procedure for disposing of an application filed under that section, and that those rules had been repealed by Section 2 of the Revenue Courts Act when read together with Rule 114 of the rules framed under that Act. They contended that the revenue authorities erred by following the rules made under Section 85 of the Tenancy Act instead of applying the procedure prescribed in Chapter 11 of the rules made under the Revenue Courts Act. Chapter IV of the Revenue Courts Act rules consisted solely of Rule 114, which required that the procedure set out in Chapter II of the same rules be followed, insofar as it could be applied, in all proceedings before revenue courts.

Section 7 of the Revenue Courts Act declared that an application filed under Section 85 of the Tenancy Act, since the commencement of the Revenue Courts Act, had to be heard and determined by a revenue court. Consequently, such an application created a proceeding in a revenue court, and, in view of Rule 114, the proceeding had to be conducted according to the procedure prescribed in Chapter II of the rules made under the Revenue Courts Act. Chapter II laid down a procedure for contested matters, requiring that notice of the proceedings be issued to the respondent and that the respondent be given an opportunity to be heard. In the present case, no notice of the application had been issued to the tenants and they had not been heard. Therefore, the procedure prescribed in Chapter II had not been complied with.

The High Court accepted the tenants’ contention that the rules framed under Section 85 of the Tenancy Act had been repealed and that the procedure in Chapter II of the rules made under the Revenue Courts Act should have been applied. It

The Court therefore held that an error was apparent on the face of the record and consequently set aside the orders passed by the revenue authorities that had been challenged by the tenants. The Court further stated that it had given anxious consideration to the question raised by the High Court, but that it was unable to agree with the view adopted by that Court. In the Court’s opinion, the rules made under section 85 of the Tenancy Act did not prescribe any special procedure. The only rule that was relevant to the matter was rule 34, to which reference had been made earlier. That rule, in effect, required the Deputy Commissioner to verify the list, a duty that the section itself already imposed on him, and also required him to examine the patwari for that purpose. The rules, however, did not specify how the application should be heard, that is, whether it should be heard ex parte or on notice. The Court found it clear that section 85 itself required an application made under it to be heard ex parte. Firstly, the section did not provide that a notice of the application had to be served on the tenant concerned. Secondly, an application under the section could be made only after the prescribed notification had been issued; that notification declared that there was a general refusal by tenants to pay rent. Consequently, the section could not have contemplated that the question of a particular tenant’s refusal would be reheard on notice to that tenant. Thirdly, in proceedings for recovery of land revenue, the persons liable are not heard; therefore, when rent is directed to be recovered as land revenue, the tenants are not intended to be heard. Such proceedings are meant to result in a summary and swift decision. The Court observed that if the procedure laid down in Chapter 11 of the rules framed under the Revenue Courts Act were to be followed, the entire object of section 85 of the Tenancy Act would be defeated. It appeared to the Court that, in that circumstance, section 85 would become redundant because it would then envisage an application for realisation of rent that would give rise to a contested proceeding governed by the procedure of a suit, thereby duplicating the effect of section 78 of the Tenancy Act, previously mentioned, or of section 80 of the same Act, which both provide for a suit in a revenue court for recovery of rent and require the proceedings to be contested in the presence of the opposite party. Fourthly, clause (b) of sub‑section (4) of section 85 plainly indicated that the proceeding on an application under that section was to be ex parte. That clause contemplated a suit by a tenant against a landlord in which an amount exceeding what was legally due had been recovered under the section. The Court noted that, of course, the amount recovered could not exceed the amount that the Deputy Commissioner had determined to be due.

The Court observed that a suit envisaged by subsection 85(4)(b) would essentially seek to challenge the Deputy Commissioner’s determination of the amount owed. It would be inconceivable for such a suit to arise if the Deputy Commissioner were required to decide the amount after hearing the tenant. The Court noted that it is unnecessary to have two successive contested proceedings concerning the same question between the same parties. Consequently, the Court concluded that section 85 of the Tenancy Act clearly provides that an application filed under that provision must be heard and decided in the tenant’s absence. The tenants argued that the procedure was wrong not because the Tenancy Act required a different method, but because the Revenue Courts Act and its rules had replaced the ex parte procedure with a contested proceeding under Chapter eleven. The Court held that, having determined that section 85 of the Tenancy Act has not been repealed by the Revenue Courts Act except for the amendment directing applications to be made to a Collector rather than a Deputy Commissioner, the entire provision must be given effect. The Court emphasized that the procedure contemplated by the section forms an essential part of the right it confers and therefore cannot be separated from the substantive provision. Accordingly, the application filed under section 85 must continue to be heard and determined ex parte, without the tenant being served notice. The Court observed that Rule 114 of the rules made under the Revenue Courts Act offers no assistance to the tenants in the present matter because it does not purport to repeal section 85 of the Tenancy Act. The Court reiterated that the Revenue Courts Act intended the continuation of section 85, and consequently no rule enacted under that Act can be interpreted as implicitly repealing the section. Rule 114 may be applicable to applications filed under other statutes that do not require an ex parte hearing, but not to applications under section 85. For these reasons, the Court concluded that the application under section 85 was properly and correctly heard and determined without notice to the tenants, and that such a hearing disclosed no error. The tenants further contended that, following the rescission of the notification dated 22 February 1951, no further proceedings could be instituted under section 85 of the Tenancy Act. Although the High Court had accepted that contention, the Court was unable to agree with it. The Court noted that subsection (1) of section 85 provides for the issuance of a notification declaring that certain rents may be recovered as arrears of land revenue.

The Court explained that subsection 1 of section 85 authorises the issuance of a notification declaring certain rents recoverable as arrears of land revenue, and that subsection 2 provides that in any local area to which such a notification applies, a landlord who is owed rent may make a written application to the Deputy Commissioner for its realization, and the Deputy Commissioner, after being satisfied that the amount claimed is due, shall proceed to recover the amount as an arrear of land revenue. The tenants argued that the phrase “in any local area to which a notification made under subsection 1 applies” governs both the landlord’s application and the Deputy Commissioner’s subsequent action, and that therefore, once the notification is rescinded, the Deputy Commissioner cannot act under the section at all. The Court found this contention unsupported by the language of the provision. It observed that the words refer to the geographical area to which the notification relates, not to the period during which the notification remains in force; the phrase “in any local area” deals with space, not time. The Court noted that nowhere in the subsection is there any reference to the currency of the notification. It further cited item 4 of group E in schedule 11 to the Tenancy Act, which states that the limitation period for an application under section 85 persists so long as the notification remains in force. The Court reasoned that if the words in subsection 2 were intended to mean “while the notification is in force,” there would have been no need to specify a limitation period in schedule 11. The Court also recalled that item 4 of group C in schedule II has been repealed by the Revenue Courts Act, and since that Act came into force there is no longer any limitation period for an application under section 85. Consequently, it is impossible to read the phrase as limiting the Deputy Commissioner’s power to the lifetime of the notification. The Court further held that the Deputy Commissioner’s authority arises upon receipt of a duly made application under subsection 2, and even if the application had to be filed while the notification was still in effect, nothing in subsection 2 indicates that the Commissioner’s power to act would cease when the notification is later rescinded. The Court pointed out that, in the present case, the landlord’s application was filed before the notification was rescinded, and therefore the Commissioner’s power to act remained valid.

When a notification was issued under section 85, the Court observed that the appropriate revenue officers unquestionably acquired the authority to consider and dispose of any application filed under that provision during the period in which the notification was operative and applicable to the specified area. The Court further held that the later cancellation of such a notification did not remove from the officer the power that had already been vested to deal with an application that had been properly and duly made under section 85. Accordingly, the Court stated that even after the rescission of the notification, the officer could still take steps provided by section 85 of the Tenancy Act to recover rent that had become arrears of land revenue.

Counsel for the respondents relied upon the decision in Crown v. Haveli, reported in A.I.R. 1949 Lah. 191, where the court had held that proceedings under a temporary statute could not be continued after the statute had expired. The respondents argued that section 85 of the Tenancy Act should be treated as a temporary statute because it became effective only upon the issuance of a notification, and because that notification was not intended to have permanent effect. The Court rejected this contention. It explained that the mere fact that a provision is brought into force by a notification, and that the notification may not be of permanent duration, does not transform the provision itself into a temporary enactment. The Court clarified that the interpretative principles applied to temporary statutes were not applicable to a substantive provision such as section 85 of the Tenancy Act.

The respondents also relied on clause (a) of sub‑section (4) of section 85. They argued that because clause (a) allows a suit for recovery of rent that has not been collected under the section, it implies that after the notification is rescinded, no further proceedings may be taken under the section itself. The respondents further suggested that clause (a) envisions a situation where, upon rescission of the notification, the entire amount of rent for which an application under section 85 was made remains unrecovered, and that the clause therefore permits the landlord to file a suit for the balance that remained unrealised at the date of rescission. The Court found this argument to be circular. It noted that the argument presupposes that the suit contemplated by clause (a) is only for rent that cannot be recovered under the section because the notification has been withdrawn. The Court observed that clause (a) can clearly operate in a scenario where, despite the existence of a notification, the landlord—whether during the life of the notification or thereafter—chooses to pursue a suit under other provisions of the Tenancy Act. In such a case, the clause merely provides a procedural avenue for the landlord and does not depend on the continued existence of the notification.

Finally, the tenants contended that the notification dated 22 February 1951 was invalid because, out of the 125 tenants in the village of Khakharki, only 82 had paid rent while the remaining 43, who were the respondents in this appeal, were unwilling or unable to pay the amounts demanded by the landlord. The tenants argued that this situation did not constitute a “general refusal to pay rent” as required by section 85, and therefore the notification was ultra vires and inoperative. The Court noted that this issue had not been raised before the High Court and that the High Court’s judgment made no reference to it. Consequently, the Court considered that the tenants could not introduce this point at this stage, as it raised factual questions about the number of tenants who refused to pay and interpretative questions about the phrase “general refusal to pay” in section 85, neither of which had been addressed in earlier proceedings.

In this appeal, the respondents, who were the tenants, expressed willingness to pay the rent but were unable to do so because the appellant, the landlord, demanded amounts that exceeded the sums that were lawfully owed to him. The tenants argued that, given these circumstances, it could not be said that there was a general refusal to pay rent as contemplated by section 85 of the Tenancy Act. On that basis, they maintained that the notification issued under that section was beyond the powers granted by the statute and therefore ineffective. The Court observed that the tenants had not raised this objection before the High Court, and the judgment of the High Court contained no reference to it. Consequently, the Court examined whether it was appropriate for a superior court to scrutinise the validity of a notification issued under section 85. The Court noted that the tenants’ submission raised two matters that had not been considered at any earlier stage: first, a factual enquiry into how many tenants actually refused to pay rent; and second, an interpretative question concerning the meaning of the phrase “general refusal to pay” in section 85. Since neither issue had been presented to the High Court, the Court was reluctant to entertain them at this stage. Accordingly, the Court declined to allow the tenants to raise those points now. After considering the remaining matters, the Court concluded that the appeal was to be allowed and ordered that the costs of both the appellate and the lower proceedings be awarded to the appellant. The appeal was therefore allowed.