SREE RAGHUTHILAKATHIRTHA SREEPADANGALAVARU SWAMIJI versus THE STATE OF MYSORE AND OTHERS

J.-This appeal arises from a writ petition filed by the appellant, Raghu· tilaka Tirtha Sripadanga.lavaru Swo.miji, in the Mysore High Court challenging th1.1 validity of s. 6 (2) of the Mysore Tenancy Act, 1952 (XIII of 1952) hereafter oalled the Act, and the notification issued under the ea.id section on March 31, 1952.

p. 228

The appellant's case as set out in his writ petition before the High Court was that the impugned section as well as the notification issued under it infrin~ed his fundamental rights guaranteed under Arts. 14, J9 (1) (f), 26, 31 and 31A of the Constitution. This con ten ti on has bePn rejected by the High Court and it has been hold that the section and the notification under challenge are valid and constitutional. The appellant then applied for a certificate from the High Court, both under Art. 132 and Art. 133 of the Constitution. The High Court granted him a certificate under Art. 133, but refused to certify th\) ca.so under Art. 132. There after the appellant applied to this Court for liberty to raise a question ab'>Ut the interpretation of the Constitution and permission has been accorded to the appellant accordingly. That is how the present appeal has come to this Court.

pp. 228–229

The appellant owns 6 acres and 30 ghuntas of garden land in village Mulba.gilu in Taluka Thirthahalli in the district of ShimogJt. Respond· ant No. 3, Ramappa, Gowda, is his tenant in respect of this land. A registered lease deed was executed in favour of respondent No. 3 by the appellant on March 11, 1943; under this document respondent No. 3 undertook to pay 82-1/2 maunds of areca in addition to Rs. l 7/12-in cash as rent per year. In 1955 ,respondent No. a filed an application before respondent No. 2, the Tehsildar of Thirthahalli, under section 12 of the Act and claimed that the standard rent payable by him to the appellant should be fix:ed (Tenancy case 85 of 1955-56). Meanwhile respondent No. l, the Government of Mysore, had, in ex:ercise of the powers conferred on it by s. 6 of the Act, issued a notification No. R9. 10720/L. S. 73.54 2 on March 28/29, 1955. This notification purported to fix: the standard rent for lands of the category to which the appellants land belongs at one third of the produce. Feeling aggri· eved by this notification the appellant filed the present writ petition in the High Court on December 16, 1955, His case was thats. 6 (2) as well as the ndtification issued under it were ultra vires, invalid and inoperative.

p. 229

Before dealing with the contentions raised before us by Mr. Shukla on behalf of the appellant it would be necessary to consider very briefly the scheme of the Act. The Act has ·been passed by the Mysore Legislature bec!tuse it was thought necessary to regulate the law which . governs the relations of landlords and tenants of agricultural lands and to regulate and impose restrictions on the Ji30 SUPREME COUhT REPORTS [1963) transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto belonging to or occupied by agr~oul.turists in the State of Mysore e:icoe~t Bellary DIBtnct and to make provisions for oertam o•her purposes appearing in the Act. That is the recital contained in the preamble to the Aot. It would ~hue be seen that the primary objeot of the Act to afford much needed relief to the agricultural tenants by regulating their relations with their landlords and in that respect the Aot bears a very close resemblance to the provisions of the Bombay Teaanoy and Agricultural Lands Act, LXVH of 1948. Indeed, the material provisions of the Act with which we are concerned are substantially similar.

pp. 229–230

Chapter I of the Act deals with the preliminary topic of defining the relevant terms used in the Act. Chapter II contains general provisions regarding tenancies. Section 4 defines persons who are deemed to be tenants. Section 5 provides that no tenanoy would be for Iese than five years. iSeotion 6 deals with the maximum rent payable by the tenants. 8eotion S provides for the oaloulation of rent payable in kind in the manner indicated by els. (i)' and (ii) and prohi)>its the landlord from reoovering or receiving rent caloulated in any other manner. Under s. receipt of rent in terms of service or labour is prohibited. Section 11 abolishes all casea and e. 10 enables the tenants to claim a refund of rent which haa been recovered in contravention of the provisions of the Act. Section I:! then deals with enquiries with regard to reasonable .rent. 8ub-section (3) of s. 12 lays down five factors which have to be borne in mind by the authority dealing with an application for the fixation of reaaonable rent. Section 13 is a corollary of s. 12 and authorises the reduction of rent after reasonable rent has been determined under e. 12. Section 14 deals with suspensions or remission of rent. Section 15 provides for termination of tenancy. Under s. 18 a statutory bar is created against the eviction of a tenant from a dwelling house and under s. 19 the tenant has the first option of purchasing the site on which he has built a dwelling house. Similarly, under s. 22 the tenant is given an option of purchasing the land leased out to him. tjection 24 deals with some ca;es where relief can be granted against termination of tenancy aud s. 25 with relief against termination of tenancy for non-payment of rent. Section 30 provides for the procedure to recover rent and s. 31 protects the tenants' rights under any other law. Chapter III deals with the proced· ure and jurisdiction of Amildar and provides for appeals against the decisions of the Amildar. Chapter IV deals with offences and prescribes pen· alties for them and Chapter V contains miscellaneous provisions. That, in its broad outlines, is the nature of the provisions made by the Act in order to give relief to the agricultural tenants.

pp. 230–231

Section 6 with which we are directly conce1·· ned in the present appeal reads thus:-

p. 231

"6. (l) Notwithstanding any agreement, usage, decree or order of a court or any law, the maximum rent payable in respect of any period after the date of coming into force of this Act by a tenant for the lease of any land shall not exceed one-half of the crop or crops raised on such land or its value as determined in the prescribed manner :

p. 231

Provided that where the tenant does not cultivate the land the rent payable shall be the reasonable rent to be fixed by the Amildar.

p. 231

(2) The Government may, by notification in the Mysore Gazette, fix a lower rate of the maximum rent payable by the tenants of lands situate in any particular area or may fix such rate on any other suita.hle basis as they think fit."

pp. 231–232

As we have already indicated, the provisions of the two sub-clauses of s. 6 a.re substantially similar to the provisions of s. 6( I) and (2) of the corres· ponding Bombay Act. Indeed, it would be correct to say that Act with which we a.re concerned has been modelled on tho pattern of tho Bombay Act and has adopted most of its important provisions. The validity of s. 6 of the Bombay Act was challenged before this Court in "V asantal M aganbhai Sanjanwala v. The State of .&nnbay ( and it has been held that the said section is valid. The reasons given by this Court in upholding the validity of s. 6 of the Bombay Act apply with equal force in support of the validity of s. 6 of the Mysore Act and so the point raised by the appellant in challenging the validity of the impugned section is really covered by the earlier decision of this Court.

p. 232

Mr. Shukla., however, contends that the preamble to the Act differs from the prc&mble of the Bombay Act inasmuch as the latter preamble refers to the ia.ot that that Act was passed int,er alia for the purpose of improving the economic and social conditions of peasants and ensuring the full and effioient use of land for agriculture and so considerations of social justice on which the validity of the corresponding provision of tho Bombay Act was sought to be sustained cannot be invo.ked in dealing with the proaent appeal. We a.re not impressed by this argument. It is true that the preamble to the Act merely says that the Act was passed because it was though necessary to regulate the law which governs the relations of landlords and tenants of agricultural lands and it does not refer to the requirement of social justice or doea not specifically mention the object of ensuring the full and efficient use of land for agriculture. But in dealing with a law which has been paBBed for the purpose of effecting an agrarian reform it woulJ be pedantic to ignore the essential basis of its material provisions merely on the ground that the concept of. social justice on which the said provisions are based has not been expressly stated to be one of the objects of the Act in the preamble. .We have already examined briefly the broad scheme of the Act and it is obvious that the important provisions of the Act are intended to improve the economic and social conditions of the agricultural tenants and so the policy of social justice can be safely said to be writ, large on the face of the Act. Therefore, we do not think that the argument based upon the fact that the preamble does not ·refer to social justice distinguishes s. 6 of the Act from the corre1ponding section of the Bombay Act.

pp. 232–233

· Then it is urged that unlike the Mysore Act, the Bombay Act has distinguished between irrigated land and non-irrigated land and has provided by s. 6(1) that the maximum rent payable in the case of irrigated land shall not exceed one-forth and in the case of other lands shall not exceed one-third of the crop of such land or its value as determined in the prescribed manner. It is true that s. 6(1) of the Act makes no such distinction between irrigated and non-irrigated lands. But that, in our opinion, is not a matter of eBBential importance. Like s. 6( 1) of the Bombay Act s. 6( I) of the Act also intends to provide for a maximum ceiling beyond which agr1cultural rent will not be allowed to soar and so far as the fixation of a maximum ceiling of rent is concerned it is not eSBential that a distinction must necessarily be made between irrigated lands and non-irrigated lands. It must be borne in mind that what the section does is to prescribe the maximum and not to provide for a minimum, In pres· oribing a maximum it may be open to the Legislature to provide for a maximum which would be common to la.nds whether irrigated or not That is why we are not inclined to a.tta.ch any importance to the point tha.t in the absence of classification of la.nd, while prescribing a maximum s. 6(1) suffers from a.ny infirmity.

pp. 233–234

Then it is argued that the Bombay Act while prescribing a. maximum has ta.ken the precaution of a.lso prescribing a minimum a.nd the absence of the latter provision makes a. material difference. This argument is clearly mi•coneeivod. It is true tha.t s. 8 of the Bombay Act which ha.d been insert· ed by the Bombay Legislature in 1956 did provide for the maximum and the minimum rent, but a.s the decision of this Court in the case of Sanjanwala ( shows in upholding the validity of the impugned provision of the Bombay Act no reliance was placed upon the fixation of the minimum rent. Indeed, the minimum rent was fixed subsequent to the decision of the High Court which was under appeal before thill Court in that ca.se and the fact tha.t a minimum had been prescribed subsequently has been only incidentally mentioned in the judgment. '.rherefore the absence of a provision fixing the minimum rent docs not introduce .i.ny infirmity in the impugned provision. \Ve are, therefore, satisfied that the case of tho impugned section is substantial· ly similar to the case of s. 6 of the Bombay Aot with which this Court concerned in the case of Sanjanwala {I) and the oha.llenge to the validity of section in thu present appeal must, therefore, be held to be covered by the said decision.

p. 234

That takes us to the question as to whether the impugned notification is in valid. This notifica· tion has been issued in exercise of the powers conferred on the State Government by s. 6( :!) and it provides that th" rate of maximum rent payable by the tenants of lands situated in the areas specified in Schedule I and Schedule I I to the notification shall be one-third and one-fourth respectively of the crop or crops raised on such lands with effect from the year commencing on April 1, .1955. Schedule I deals with Maidan areas in which the maximum. rent or rents shall be one-third of the crop or crops and ochedule II deals with Malanad areas in which the maximum rate of rent shall be one-fourth of the crop or crops raised.

pp. 234–235

It appear'!' that the classification of lands between Maidan an Malanad lands is well known in Mysore. Maidan lands are lands on the plains, whereas Malanad are lands on hilly trac.ts. The distinction between the two categories of lands takes into aocount the different condition~· of rain fa.II, the dilferent nature of the cultivation, the difference in the living conditions and the avail· ability of labour and the difference in the quantity and the quality of the produce. It i~ true that the notification does not prescribe the lower rate of the maximum rent area by area in the sense of dist.riot by district, but it purports to prescribe the .said maximum· by classifying the' land in the whole of the State in the two well-known categories of Maida.n and Mal11J1ad lands.

p. 235

It is urged by Mr. Shukla that the impugned notification is invalid, because it is inconsistent with the provisions of s. 6( 1). The argument is that s. 6( 1) lays down a general rule and s. 6(2) provides for an exception to the said genf'ral rule. On that a&umption it is contended that an exception cannot be allowed to swallow up the general rule and that is precisely what the notification purports to do. 'l'his argument is based on the decision of the House of Lords in Macbeth v. ·Ashley ('). It would be noticed that this argument raises the question · about the construction of the two sub.clauses of ~.6. Before addressing ourselves to that question, Sc. :1;m Sl'l-RE.ME COl RT REl'OHTIS [lllti3J h•Jwover. we m:i.y rnfer to the cloici~ioa of tb.o Hotl'lo of Lords on which tae argument is based.

pp. 235–236

It appears that I I o'clock at night was the hour appointed for closing public-houses in Scotland, although in Bpecia.I cases, and for well considered reasons, a deviation was allowed with reference to any particular locality really requiring it. The lllagistrates of Rothesay had ordered for closing at 10 instead of I l and the effeot of the order was that it embraced every public-house in the burgh. The House of Lords held that the Magistrates order was ulti"a vires. The statutory provision with which the House of Lords was concerned was contained in the Act of Parli&ment, 25 and Viet. c. 35. As a result of these provisions I l o'clock ~t night appointed tu be the hour for closing public houses. There was, however, a proviso which said inter alin that in any particular locality req:iiring other hours for opening and closing inns, hotels, and publichouses it- shall be lawful for such justices and Magistrates respectively to insert in the schedule such other hours, not being earlier th'm six or la.for than eight o'clock in tho morning for opening, or earlter thaa nine o'clock or later than eleven o'clock in the c.-eni1w for clusin" the same as they shall thiak fit. IL is in pursuance of the authority conferred on them by tho said proviso that tho ::\Ia.gistratcs of Hothesay passed an order embraciag every public-house iu the burg0 by which, a deviation from the statutorily fi:i;ocl hour was effected.

p. 236

In di·aling with tho validity of the order is~­ ued by the :1-Iagistrates Lord Chancellor Lord Cairns expressed his opinion that if the exception is to swallo\v up the rule it ceases, of course, to be an exception at all and that which might fairly have been an exercise of discretion becomes no exercise of tho kind of discretion mentioned in the Act of Parliament. It was for this reason that the order issued by the Magistrates was declared to be ultra vires. It was conceded that the Magistrates had a discretiOn, but the Lord Chancellor observed that the· ~ords "conferring discretion" expressly bear with reference to a particular locality and no't with the whole burgh. What should be true about the whole burgh had been treated as a. matter reserved for and determined by the consideration of the Imperial Parliament. The Lord Chancellor did not express any opinion on the question as to whether the discretion vested in the Magistrates can be exercised by them more than once but without deciding that point he held that the order of tlie Magistrates really amounted to evading an Act of Parliament. In substance, the Magistrates had ·once for all attempted with regard to all the public-houses in their district to change the rule laid down by the Act of Parliament. Lord Chelmsford, who concurred with the opinion expressed by the Lord Chancellor, rested his conclusion on the ground that it was · impossible to say that the limits which the Magistrates had defined could be called a particular locality within burgh and so it appeared that what the Magistrates had done was something very like an at~empt to evade the Act of Parliament. According'to Lord Selborne, the participle. "requiring" is connected with the su':>stantive "locality" and therefore it must be a requirement arising out of the particular circumstances of the place. That is why Lord Selborne thought that the Magistrates must, in exercise of an honest and bona fide judgment,· be of opinion that the particular locality which they except from the ordinary rule is one which, from itti own special circumstances, requires that difference to be made. . ·

pp. 236–237

It would thus be seen that though the genera.I · basis of the decision, as it has been expressed · by Lord Cairne, appe11.rs .to be that the exception cannot swallow up the rule one of the reasons which ultimately influenced t.he decision wa.A tha.t the discretion had to be exercised lxmafide and a.fter due deli bera ti on in respect of a particular locality a.nd tha.t the manner in which the order we.s iBBued indicated that the requirements of the pa.rticu,lar localities had not been duly examined by the Magistrates. It is significa.nt that though Lord Ca.irne posed the question a.a to whether the discretion in question ca.n be exercised more tha.n once, he did not choose to a.newer it; but the trend of the opinions expressed by the La. w Lords during the course of their apeoohes may seem to suggest tha.t the discretion cannot be exercised more than once a.nd in a.ny case, it must be exercised by special reference to the particular locality as indica.t£d by the proviso. If a.n order is made in respect of the whole of thA burgh, it. cannot be said that it has been passed after exerdsing due discrPtion in rrapect of the requirements of ea.ch pa.rticula.r locality. With respect, if the discretion is given to the llfagietratee to provide for a. departure from the rule prescribed by the genera.I provision by reference to particular localities, it is not ee.sy to see why the said discret.ion cannot be exercised more than once. Indeed, sit.ua.tions may arise when the Magistrates may have to consider the matter from time to time in respect of different localities and if it appears to the Magistrates considering tho ca~es of different localities that in regard to each one of them a departure from the general rule should be rnade,.it i~ not eary to follow why the proviso does not justify diff<'rent c.rders being passed by the MagiPtrates in respect of different but particular localities. On the other hand, if the ma.in provision is construed to mean that the time prescribed by it was to apply generally only with certain PXceptions contemplated by the proviso, that would be a different matter. However, it is not necessary for us to pursue this point further and to expre88 a definite opinion on the general proposition that an exception cannot swallow the general rule, because, as we will presently show, this rule cannot be applied to the provioions of s. 6 at all. In this connection we may, however, point out that both in Maxwell and in Craies, the decision in Macbeth's case(') appears to have been treated as an authority for the proposition that an order like the one passed by the Magistrates in tliat Clll!le amounted to an evasion of the Parliamentary statute, because it was not in hgnest and bona fide exercise of the discretion vested in them. (Maxwell on Interpretation of Statutes, 11th Edn., p. 121, and Craies on Statute Law, 5th Edn., p. 75.)

pp. 237–239

But assuming that the proposition for which Mr. Shukla contends on the authority of the decision in Macbeth's case (I) is sound, does it apply to s. 6 at all and the answer ·to this question will depend upon t.he construction of the provisions contained in the two sub-clauses of s. 6. It would be noticed thats. 611) declares a maximum beyond which no landlord can recover rent from his tenant. In other words, as soon as the Act came into force a ceiling was fixed beyond which the landlord mm. not recover rent from his tenant even though it may be justified by agr_!lement, usage, decree- or order of a court or any other law. The provisions of this eub-seotion apply individually and severally to all agricultural leases and govern the relations of individual landlords and tenants in respect of paymPnt of rent by the latter to the formn. The fixation of the maximum by sub-a. ( 1) is really not intende<I to lay down a general rule as to wh'-'t a landlord should recover from his tenant and it is in that sense alone that its relation to the provisions of sub-a. (2) must be judged. In that connection we may point out that there is one provi to 6( l) which deals with cases of tenants who do not cultivate the land and it Jaye down that in their case the rent shall be ree.sonable rent to be fixed by the Amildar.

pp. 239–240

Sub-section (2) ie so worded that in terms it oannot be said to be a proviso to eub-e. (I) add io substance it is not B'lch a proviso nor ie it an excep· tion to sub-a. (1). Having prescribed the maximum beyond which agricultural rent cannot go under s. 6(1) the legislature he.s premitted the Government to fix a lower rate of the maximum rent in respect of lands situated in particular areas. The Govern· ment ha.s also been authorised to fix the pe.;vment of rent on any other suitable baaie as i~ thinks fit. In other words, the authority conferred on the Government is either to fix a lower rate or to fix any other basis on which the rent coulil be fixed. The provision is a'l independent provision and eo the two sub-sections must be read aa different, independent, though co-ordinate, provisions of the Statute. It would, we think, be erroneous to treat sub-s. (2) as a proviso or exception to sub-s. (I). Whereas b·e. ( l) deals with and applies to all lee.see individually and prescribes a ceiling in that behalf, sub-s. (2) is intend to prescribe a maximum by reference to different areas in the State. The object of both the provisions is no doubt similar but it is not the same and the relation between them cannot legitimately be treat.Pd as the relation between the general rule and the proviso or except· ion to it.

p. 240

The argument that by issuing the notification the Government has purported to amen<l e. 6(1) ie, in our opinion, not well-founded. Ae. we have already 8een, e. 6(1) is intended to apply to all the agricultural leases until a notification is iesued under s. 6(2) in respect of the areas where the leased la.ode may be eitua.ted. It is not suggested that. under s. f(2) it is necessary that the Government must fix the lower rates by reference to individual lands and eo there can be no doubt that even on the appellant's argument it would be competent to the Government to fix lower rent.e, say dietrictwise. If instead of preeoribing the lower rates distriotwise after classifying the lands into two categories which are well recognised, the Government prescribed the rates by referenoe tci the said categories of lands throughout the State. we do not see how the said notification can be said to be inconsistent with s. 6(2) or withs. 6( I) either. The scheme of s. 6 does not seem to postulate that after the notifications are issued under e. 6(2) some area must inevitably be left to be covered bys. 6(1). Such an aesumption would be inconsistent with the object underlying ths said provi~ion itself. Whl\t s. 6(1) has done is to fix a genPral ceiling apart from the areas and without considering the special faotore appertaining to them. Having thus fixed a ireneral ceiling the Legislature realised that the ceiling may have to be ohanged from area to area and so power was conferred on the Government to fix the ceiling at a lower rate. The Government having examined the matter came to the conclusion that the more _equitable and reasonable course to adopt would be to divide the &!lfioultural lands into two well-known categories and fix the ceiling by reference to them. Now in the very nature of things, the Legislature must have anticipated that the exercise of the power under s. 6(2) might cover all the areas in the State and that may mean that the general ceiling preeoribed by s. 6( I) may not apply to any land which is oovered by the notification. If s. 6(1) is not a general rule ands. 6(2) is not an exception to it, ·then the ooneequenoe flowing from the issue of the impugned notification cannot be oharacterised as an exception swallowing up the ~-12 ~PPRF.i\IF, COTTR't" REPORTS [l!l63] l!<'ncral rnlc. Th11.t, in A•ibstancc, is tho view which the Mysore High Court ha~ taken in tho matter and we think tl1at tho said view is right.

pp. 240–242

In the n•snlt, t.hc app~al fails and is dismissed with costs.

p. 242

Appenl dismi.9sed.

p. 242

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p. 242

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