1. This judgment will also govern Special Civil Applications Nos. 95 to 107 of 1058.
2. The petitioners in all these petitions claim to be the owners of certain lands which are in possession of the tenants who are respondents in these petitions. These lands are situate in the village Umri which was leased out to the predecessors-in-title of the petitioners under the Berar 'Waste Land Rules, 1865. The petitioners have alleged in their petitions that they were proprietors of Umri till the abolition of their proprietary rights by virtue of the provisions of the M.P. Abolition of Proprietary Bights Act, 1950. This fact is not denied by the respondents tenants.
3. A lessee under the Waste Land Rules was deemed to be an 'alienee' of the Government and the village to be 'alienated' to him by the Government. Under Rule 1 of these Rules such an alienee is liable to pay annual rent to the Government at a rate to be fixed by the Deputy Commissioner. Under Rule 5, a lessee is entitled, either on taking the lease or during its currency or after its expiry, to select either proprietary title constituting the village his property in permanent hereditary and transferable right or to select the Patelship of the village without proprietary right on the land. The petitioners' contention is that their predecessors-in-title chose the proprietary right to the aforesaid village and that consequently their liability to the Government was only to pay rent. It is not the case of the tenants that the petitioners enjoyed only the Patelship of the village and not the proprietary right prior to the date of vesting specified in Section 3 of the Abolition of Proprietary Rights Act. In some of the cases the petitioners had made applications for eviction of the tenants under Section 8(1), Clause (a)(i) of the Berar Regulation of Agricultural Leases Act, 1951; in other cases, the tenants had made applications under Section 9B of the aforesaid Act for fixation of lease-money. In all these cases the question which arose was whether the maximum lease-money to which the petitioners were entitled was five times the land-revenue or ten times the fair assessment. Section 9B of the Act provides that the maximum lease-money payable by a protected lessee of any land shall not exceed five times the land-revenue on the land in respect of which, announcement of the settlement has been made at any time within the thirty years immediately preceding the commencement of the aforesaid Act, or is made at any time after such commencement, and in other cases ten times the fair assessment. It is, therefore, necessary to consider whether the tenants' cases fall under the first or the second category.
4. It is contended on behalf of the tenants that the land-revenue on the lands in their possession as protected tenants had been announced at the settlement made in the year 1928 and that, therefore, the maximum amount of lease-money which they can be called upon to pay will be five times the amount of land-revenue fixed at the settlement. Mr. Abhyankar, who appears for the petitioners, contends that no such settlement was announced in the year 1928 or at any subsequent time and he further contends that in respect of lands in Izara villages there can be no question of announcing a settlement of land-revenue in respect of lands held by the lessees from the Izardars.
5. In order to appreciate the argument it is necessary to refer to certain provisions of the Berar Land Revenue Code of 1896, which was in force when the alleged announcement of settlement was made.
6. Chapter V of that Code deals with the question of Land and Land-revenue. Section 49 is one of the sections in that Chapter which provides that all lands shall be liable to the payment of laud-revenue to the Government unless any land is specially exempted under the provisions of any special contract with the Government or of any law, rule or order for the time being in force. Under the lease granted by the Government to the petitioners' predecessors-in-title under the Waste Land Rules, 1865, the only liability which is cast upon the lessee, that is the Izardar, is that of payment of rent to the Government and not the payment of land-revenue. It is true, however, that under Clause (23) of Section 4 of the Code, 'land-revenue' includes payment to the Government by way of rent. Section 53 provides that on all lands not wholly exempt from payment of land-revenue, the assessment of the amount to be paid as land-revenue shall be fixed at the discretion of the Deputy Commissioner and the amounts due according to such assessment shall be levied on all such lands.
7. Chapter VIII of the Code deals with Survey-settlements. Section 83 of that Chapter deals with the power of the Chief Commissioner to introduce the survey of any land in any part of Berar with a view to the settlement of the land revenue. Section 88 provides as follows:
88. (1) Subject to the control of the (Chief Commissioner) the Deputy Commissioner or other officer in charge of a survey shall have authority to fix the assessment of land-revenue at his discretion on all lands within the local operation of an order made under Section 83, which are not wholly exempt from land-revenue, and the amounts due according to such assessment shall, subject to the provisions of Section 90, be levied on all such lands.
(2) In fixing such assessment regard shall be had to the requirements of the proviso to Section 53.
(3) But nothing in this section shall be deemed to prevent the officer aforesaid from determining and registering on lands wholly or partially exempt from payment of land-revenue or on lands specially excepted under Section 83, from the survey settlement, the proper full assessment which would be payable but for such exemption or exception, or from dividing all such lands to which the survey extends, into survey-numbers.
8. Section 90 provides that assessments made under Section 88 shall not he leviable -without the sanction of the Chief Commissioner and also empowers the Chief Commissioner to declare with the previous sanction of the Governor General in Council, the assessment made by the Deputy Commissioner with any modifications that he may think necessary, fixed for a term of years not exceeding thirty. Then comes Section 91 which is as follows:
91. (1) When the (Chief Commissioner) or other officer aforesaid shall have sanctioned the levy of the assessments fixed by the officer in charge of the survey, the Deputy Commissioner, or other officer in charge of the survey, or such other officer not below the rank of an Extra-Assistant Commissioner as may be specially appointed for the purpose by the Deputy Commissioner, shall publicly announce or cause to be announced the assessment fixed on each survey-number.
(2) The Deputy Commissioner, or other officer in charge of the survey, or the specially appointed officer, shall, at a reasonable time beforehand, cause public notice to be given, in such manner as he shall deem fit, of the time at or about which the assessments will be announced as aforesaid.
(3) If the holder or other interested in any holding does not appear in person or by agent, he shall be subject, nevertheless, to the same liabilities as if he had attended.
(4) When the assessments have been announced in the manner provided in Sub-section (1), the survey-settlement shall be held to have been introduced.
Then there is Section 220 of the Code, Sub-sections (1) and (2) of which run as follows:
(1) Save as is otherwise provided in Section 95 and hereinafter in this section, the provisions of Chapters VIII to X shall not be applied to any alienated village, except for the purpose of fixing the boundaries of any such village, of deciding any disputes relating thereto and of determining and registering the proper full assessment on all lands included therein, as provided in Section 38, Sub-section (3).
(2) But the provisions of the said chapters shall be applicable to-
(a) all unalienated land situated within the limits of an alienated village;
(b) villages of which a definite share is alienated, but of which the remaining share is unalienated;
(c) alienated villages, in which the holders are entitled to a certain amount of the revenue and the Government to the rest.
The word 'alienated' is also denned in Clause (17) of Section 4 of the Code as follows:
'alienated' means transferred, so far as the rights of the Government to receive the rent or land-revenue are concerned, wholly or partially, to the ownership of any person;
Explanation.-Lands leased under the Waste Land Rules of 1865, 1876, 1879 or 1880 are 'alienated' within the meaning of this definition.
9. Now, land-revenue can be deemed to have been announced at the settlement held prior to the coming into force of the Berar Land Revenue Code of 1928, if the provisions of Sections 83, 88, 90 and 91 are applicable and have been complied with. There is no doubt that Section 83 applies to this case and we are prepared to accept the position that it has been complied with. The whole of Section 88 however does not, in view of the provisions of Sub-section (1) of Section 220, apply-but only so much of it as is indicated in the aforesaid sub-section. Now, Sub-section (1) of Section 220 provides that the provisions of Chapter VIII shall not be-applied to any alienated village, except for the purpose of determining and registering the proper full assessment on all lands included therein, as provided in Section 88, Sub-section (3). Under Section 88(1) the Deputy Commissioner is empowered to fix the assessment of land-revenue at his discretion on all lands with respect to which revenue survey has been introduced by the Chief Commissioner (or Governor). Sub-section (3) of Section 88 provides that the Deputy Commissioner can determine and register the proper full assessment which1 would be payable in respect of lands wholly or partially exempt from payment of land-revenue, but for such exemption or exception. Therefore, where land is held by a person in proprietary rights and under the contract between him and the Government he is exempt from payment of land-revenue, all that the-Deputy Commissioner can do is to determine and register the full assessment of that land. The Code does not provide for doing anything further with respect to land exempt from payment of land-revenue as it does with respect to land which is not exempt from payment of land-revenue. In the latter ease the Chief Commissioner is empowered to levy the assessment under Section 90 and fix a period during which it will continue to be levied. Then Sub-section (1) of Section 91 provides that when the levy of the assessment is sanctioned by the Chief , Commissioner, the Deputy Commissioner shall publicly announce or cause to be announced the assessment fixed on each survey-number. Sub-section (4) of that section provides that where the assessment has been announced, the survey-settlement shall be held to have been introduced. It is, therefore, where land-revenue has been assessed and levied and the Survey-settlement introduced by following the procedure laid down in Sections 90 and 91 that it can be said that land-revenue has been announced at the settlement. It will be clear from what we have said above that where land is exempt from payment of land-revenue1 because of a contract between the holder thereof and the Government, no-question arises of announcing the settlement. Therefore, if the predecessor-in-title of the petitioners was the proprietor of the village as contended for by the petitioners, there was no question of fixing land-revenue with respect to any land situate in the village Umri and announcing the assessment or land-revenue of the land.
10. The Bombay Revenue Tribunal has however held that land-revenue was in fact announced in respect of the lands in the possession of the tenants in the-village Umri and that, therefore, the provisions of Sections 90 and 91 have been complied with. The Tribunal has further observed that the provisions of Sub-section (1) of Section 220 are not attracted to this ease which, according to it, falls under Sub-section (2) of Section 220. It seems to us that the Revenue Tribunal has ignored the-fact that the petitioners' predecessor-in-title was not merely a Patel of the1 village, but was a proprietor thereof. If he was a proprietor of the village then the ease would not fall to be governed by Sub-section (2) of Section 220. If the case does not fall under Sub-section (2) of Section 220, then the provisions of Sections 90 and 91 of the Code are wholly inapplicable. We would also like to point out that there is no material on record to show that in respect of each individual survey-number situate in the village Umri, there was any announcement of settlement.
11. When this matter came up before us last, we had made certain enquiries from the revenue authorities on this point. The Deputy Commissioner, Yeotmal, who dealt with this matter has reported to the effect that the revision of assessment did actually take place in respect of Izara villages in the Darwha taluq (in which taluq village Umri is situate) in the year 1927-28 and that announcement of land-revenue in respect of the fields in the Izara villages was made. The only basis upon which this statement is based is the report of the aforesaid settlement. A copy of that report has also been sent to us. Though it does appear from the last page of the aforesaid report that on June 19, 1928, the Governor in Council issued an order under Sub-section (1) of: Section 90 of the Berar Land Revenue Code, 1896, sanctioning the levy of the assessments fixed, by the Settlement Officer in charge of the revenue surveys conducted by him in the taluqs and towns in Berar specified in the first column of the schedule to the aforesaid order, there is nothing to indicate that an announcement was made' by the Deputy Commissioner under Sub-section (1) of Section 91 of the Code.
12. Apart from that, we are of opinion, that the aforesaid order of the Governor' in Council is illegal in so far as it purports to apply to the Izara villages in the Darwha taluq in which proprietary rights had been conferred on the Izardars,, the provisions of Section 90(1) of the Code.
13. The Revenue Tribunal has observed in para. 7 of its order that from the provisions of Section 68(1) of the M.P. Abolition of Proprietary Rights Act, 1950, an inference can be drawn that the assessments fixed on individual survey numbers in the Izara settlements had, subsequent to the enactment of the aforesaid Act, acquired the full character of land-revenue. Section 68(1) runs thus:
The home-farm land held by a superior holder or the land held by a plot-holder on the first day of October 1949 shall on and from the date of vesting be held by him as an occupant and he shall subject to any orders which may be passed under Section 7 of the Central Provinces and Berar Revocation of Land Revenue Exemptions Act, 1948, be liable to the payment of land revenue equal to the fair assessment thereon.
Now, this provision certainly makes an ex-Izardar liable for the payment of land-revenue to the Government with respect to his home-farm land. But what we are concerned with here is not whether the land which is his home-farm is liable to pay land-revenue but whether land-revenue with respect to that land has been announced at a settlement effected prior to the enactment of this provision.
14. Further, in order to obtain the benefit of the provisions of Clause (a) of Section 9B of the Berar Regulation of Agricultural Leases Act it is necessary to prove that laud-revenue could be legally fixed and was in fact fixed. The burden to do so rests on the tenant and that burden cannot be discharged by saying merely that by virtue of some law the landlord has now become liable to pay to the Government a sum of money by way of land-revenue. A bare declaration of liability to pay land-revenue is not equivalent to fixing of land revenue and announcing it at a settlement.
15. In tins view we hold that the Revenue Tribunal was in error in holding that the case of the tenants was governed by Clause (a) of Section 9B and not by Clause (b) of that section.
16. Upon this view, we allow the petitions, make the rule absolute and remit all these matters to the Sub-Divisional Officer with a direction that he should deal with the applications filed before him by the petitioners and their tenants according to law and with advertence to the above remarks.
17. We, therefore, make no order as to costs.