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Raghunath Mahanty and ors. Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberOriginal Jur Case Nos. 205, 305, 363, 745 and 1028 of 1970, 344, 349, 626, 628, 644, 645, 815, 856,
Judge
Reported inAIR1974Ori37
ActsConstitution of India - Articles 14, 31B and 226; Code of Civil Procedure (CPC) - Order 1, Rules 1, 3, 4 and 12; Orissa Land Reforms Act, 1960 - Sections 2(9), 4(9) and 73; Orissa Estates Abolition Act
AppellantRaghunath Mahanty and ors.
RespondentState of Orissa and ors.
DispositionApplication dismissed
Cases Referred(See Mysore State Electricity Board v. Bangalore Woollen and Cottonand Silk Mills Ltd.
Excerpt:
.....and for a direction that the said provision cannot be effectively worked out until the manner by rules is prescribed. to that extent, in our view the rule is certainly bad and does not give effect to the provisions of the act but the existence of such a rule however would not vitiate the proceeding or affect the jurisdiction of the prescribed authority to entertain applications under section 4 (9) of the act. in a proceeding under chapter ii-a of the orissa estates abolition act (now repealed) there is no provision for a notification in the official gazette specifying reservation for any specific purpose as contemplated in section 73 (c) of the act in that view of the matter, the requirement of sub-section (c) of section 73 of the act cannot be found to have been satisfied by a..........the mode.it has been contended by the opposite parties that the mode has been provided in the rules. rules 3 and 4, it is stated, are provisions of general application in regard to the act and they apply to proceedings under section 4 (9) of the act. it is also contended that section 12 (1) (ii) of the act deals with the right conferred under sub-section (9) of section 4 and such dispute is to be decided by the revenue officer on an application to be filed by the person interested. under sub-section (2) of section 12, the revenue officer has been vested with powers to dispose of such application after making such enquiry as may be necessary. we are afraid. section 12 may not apply toan application under section 4 (9) of the act. under section 4, various other rights have been.....
Judgment:

R.N. Misra, J.

1. These are twenty applications under Article 226 of the Constitution, at the instance of different landlords most of which are Deities impugning the provision contained in Section 4 (9) of the Orissa Land Reforms Act of 1960 (hereinafter called the Act) as ultra vires the Constitution and for a direction that the said provision cannot be effectively worked out until the manner by rules is prescribed. Other contentions have also been raised with which we shall deal in due course. As common questions have been raised and at the desire of the different counsel only one set of arguments has mainly been advanced on both sides, we propose to dispose of all the writ applications by a common judgment. It is not necessary to deal individually with the facts of each of the writ petitions. It is sufficient to indicate broadly the questions of law raised before us and the contentions from both sides relating to that. According to the petitioners Section 4 (9) of the Act cannot be given effect to on the following grounds:--

(a) Under the Act, raiyats pay rent in cash, rent in kind and cash, and in kind only. There is no justification as to why provision should have been made to deal with rent in kind alone. The manner in which fair and equitable rent has to be determined under the Act would inevitably bring about a reduction in the cash equivalent of the rent payable in kind. As parity had been maintained from before in the matter of Payment of rent, as the fixed rent in cash has not been disturbed, there Is no justification as to why the quantum of kind rent should be interfered with. It is discriminatory.

(b) No guideline is Provided in the matter of fixation, of fair and equitable rent and as such unpuided Dower has been vested in the Revenue Officer under Section 4 (9) of the Act. Such a provision is also hit by Article 14 of the Constitution.

(c) Section 4 (9) left it to the State Government to prescribe the manner. Rules having not been made prescribing the manner the provision under Section 4 (9) is not workable.

(d) Rule 12 of the Rules made under the Act which is referable to Section 4 (9) of the Act is not only incomplete, short of the requirement of the statutory provision, but is contrary to the statute itself and, therefore, is liable to be struck down. It is next contended that-

(e) Under Section 73 (c) of the Act to the trust estates which are exclusively set apart for religious purposes, the provisions of the Act do not apply.

2. On behalf of the tenants as also the State these allegations have been refuted. A preliminary point regardingmaintainability of a single writ petition with reference to several cases as indicated in the writ petitions has also been raised.

We proceed to deal with the preliminary point first. Several cases have been registered at the instance of different tenants under Section 4 (9) of the Act. Jn some cases, applications under Section 4 (9) of the Act having been disposed of ap-peals have been filed and are pendine. There are even cases where the proceedings have become final. In some of these writ applications, the landlord has asked for quashing of several different cases on the same ground. It is the contention of counsel for the opp. parties that a single writ petition challenging the maintainability of several O. L. R. cases or disputing the final order in such cases is not tenable in law and the applications should be -dismissed as not maintainable.

3. We are not impressed with this argument. That writ petitions of the type in question are civil proceedings is not open to dispute now. (see Ramesh v. Gendalal. AIR 1966 SC 1445 and Arbind Kumar v. Nand Kishore, AIR 1968 SC 1227). A Special Bench of the Calcutta High Court in the case of Jay Engineering Works Ltd. v. State of West Bengal. AIR 1968 Cal 407 (SB) in our view has given cogent reasons as to why the Civil Procedure Code should apply in the matter of such writ applications. In the case of Bhagaban Rath v. State of Orissa (1972) 1 Cut WR 646 = (1972 Lab IC 1402) on the peculiar facts of that case, this Court came to the conclusion that a single writ petition was not maintainable at the instance of different teachers whose grievances had to be adjudicated with reference to different sets of facts.

That was a case where the teachers from different ex-State areas governed by different sets of Rules came to this Court for relief. This Court actually found that if a common petition was maintained on varying allegations from petitioner to petitioner, justice could not be done to the case. There is preponderance of authority that writ proceeding is a civil proceeding and to such a proceeding the Code of Civil Procedure--unless by the Rules of the Court specially framed for disposal of writ proceedings provide to the contrary -- applies. In these cases, two common questions have been raised for adjudication:--

(i) ultra vires character of Section 4 (9) of the Act, and

(ii) unworkability thereof

Once the Code applies. Rules 1 and 3 of Order 1 would be applicable and several common questions of law and fact relating to several petitioners can be combined in one writ petition. We do not therefore, see any justification in the preliminary objection. In the facts of the pre-sent case, we would, on the other hand, hold that such petitions are maintainable. The preliminary ground, therefore, is overruled.

4. In the writ applications as framed and in the arguments as advanced by counsel for the petitioners, the provision of Section 4 f9) of the Act has been impugned as being violative of Article 14 of the Constitution. This contention has two facets:--

(1) The provision discriminates between landlords receiving rent in cash and similarly situated landlords receiving rent in kind -- there being no scope for such Classification

(2) The Provision contains no proper guideline for fixation of fair and equitable rent, and thus is arbitrary and, therefore, is hit by Article 14.

The present provision in Section 4 (9) of the Act was in terms contained in Section 4 (5) of the Parent Act of 1960. On account of incorporation of new provision in Section 4 by the amending Act of 1965, the old Sub-section (51 has now been renumbered as Sub-section (9) of Section 4 of the Act, The Act of 1960 was incorporated in the Ninth Schedule of the Constitution by the Seventeenth amendment in 1964. Article 31B of the Constitution provides-

'Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this part, and notwithstanding, any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it continue in force,'

In the case of L. Jagannath v. The Authorised Officer. Land Reforms. Madurai AIR 1972 SC 425 their Lordships have stated:--

'Apart from the question as to whether fundamental rights originally enshrined in the Constitution were subject to the mandatory process of Article 368 it must now be held that Article 31B and the Ninth Schedule have cured the defect, if any in the various Acts mentioned in the said Schedule as regards any unconstitutionality alleged on the ground of infringement of fundamental rights, and by the express words of Article 31B such curing of the defect took place with retrospective operation from the dates on which theActs were put on the statute book. These Acts even if void or inoperative at the time when they were enacted by reason of infringement of Article 13(2) of the Constitution, assumed full force and vigour from the respective dates of their enactment after their inclusion in the Ninth Schedule read with Article 31B of the Constitution.....'

The principal contention in the writ application that Section 4 (9) of the Act ishit by Article 14 of the Constitution onboth the counts has, therefore, to be repelled.

5. The next point for consideration is as to whether the provisions of Section 4 (9) of the Act are not workable in the absence of the manner being prescribed. Sub-section (9) of Section 4 provides:--

'With effect from the date of commencement of this Act no landlord shall be entitled to recover from his raiyat more than a fair and equitable rent and where in any case rent is paid in kind the Revenue Officer on application of either of the parties interested shall determine the fair and equitable rent in the prescribed manner and pending such determination the rent payable shall not exceed one-eighth of the gross Produce or the equivalent thereof.'

'Fair and equitable rent' has been defined under Section 2 (9-a) of the Act to mean 'cash rent payable by raiyats for similar lands with similar advantages in the vicinity.' Sub-section (9) of Section 4 can be conveniently divided into two parts: the first part is declaratory of the legal obligation of the raiyat to pay to his landlord fair and equitable rent: and the second part deals with either party -- landlord or raiyat -- applying for determination of fair and equitable rent. Admittedly, 'rent' as defined in Section 2 (27) of the Act would cover both cash and kind rent. Chapter II of the Act, deals with 'raivats' and 'tenants.' Section 4, however, is exclusively confined to 'raivats' only. The scheme of the statute is that raiyats will pav rent in cash only and uniformity of such rent is contemplated by converting the rent in kind to cash rent on the basis of prevailing local rates for similar lands.

The petitioners contend that the Legislature has contemplated that the determination of 'fair and equitable rent' has to be made in the prescribed manner, but the manner has not been prescribed. According to the petitioners. Rule 12 of the Orissa Land Reforms (General) Rules. 1965 (hereinafter called the Rules) is the only Rule with reference to Section 4 (9) of the Act. This Rule provides:--

'In determining the fair and equitable rent under Sub-sections (8) and (9) ofSection 4 the Revenue Officer shall have regard to the rent payable in respect of similar lands with similar advantages in the vicinity.'

'Prescribed' as defined in Section 2 (23) of the Act means, 'Prescribed by Rules made by the Government under the Act' The mandate given by the Legislature to the State Government to prescribed the manner has thus not been complied with and in the absence of the manner being prescribed. Section 4 (9) of the Act is not workable.

On the other hand, counsel for the opposite parties have contended that 'fair and equitable rent' having already been defined, only the procedure for disposal of the application under Section 4 (9) of the Act could be prescribed and such prescription is found in the Rules. Therefore, there is no force in the contention of the petitioners that as the manner has not vet been prescribed. Section 4 (9) of the Act is not workable aS already indicated, this submission of counsel for both sides has nothing to do with the declaratory part of Section 4 (9) and has to be confined only to the second part of the provision relating to making of application for determination of fair and equitable rent.

The term 'in the prescribed manner' very often appears in many statutes. Dealing with that term appearing in Section 8(4) of the Central Sales Tax Act, the learned Judges of the Supreme Court in the case of Sales Tax Officer, Ponkun-nam v. K. I. Abraham. AIR 1967 SC 1823, stated.

'.....In our opinion, the phrase 'in theprescribed manner'' occurring in Section 8(4) of the Act only confers power on the rule-making authority to prescribe a rule stating what particulars are to be mentioned in the prescribed form, the nature and value of the goods sold, the parties to whom they are sold, and to which authority the form is to be furnished. But the phrase 'in the prescribed manner' in Section 8(4) does not take in the time-element. In other words, the section does not authorise the rule-making authority to prescribe a time limit within which the declaration is to be filed by the registered dealer. ..... Thismakes it clear that the Legislature was conscious of the fact that the expression 'in the manner' would denote only the mode in which an act was to be done, and if any time-limit was to be prescribed, for the doing of the act, specific words such as 'the time within which, were also necessary to be put in the statute. In Stroud's Judicial Dictionary it is said that the words 'manner and form' refer only to the mode in which the thing is to be done, and do not introduce anything from the Act referred to as to the thins which is to be done or the time for doing it.' .....'

Once the term 'fair and equitable rent' has been defined, all that indeed could be prescribed would be the mode of making of the application, the contents of the application and matters relating to the disposal of the application. Obviously in exercise of the rule-making authority. Government could not prescribe a guideline different from what has been indicated in the definition in Section 2 (9-a) of the Act To add to or subtract from the definition could not be legitimate.

6. In the definition given under Section 2 (9-a) of the Act, what has to be taken into account in determining 'fair and equitable rent' has been indicated. Such rent in respect of anv land is the equivalent of cash rent payable by raiyats for similar lands with similar advantages in the vicinity. The factors for consideration, therefore, are rent payable for similar land in the vicinity with similar advantages. We are not in a Position to accept the contention of the petitioner's counsel that there is no guideline in the definition. In fact 'fair and equitable rent' is a term which has come to assume a definite meaning in Tenancv Laws of this country. For almost a century this phrase has been in use in various Tenancv Laws and carries a definite connotation.

If this definition had not been given, by virtue of Section 2 (34) of the Act, the meaning assigned to this term in the Tenancy Acts, Laws, Rules. Regulations, Customs or Usage in force in any part of the State of Orissa could have been taken into consideration. We are, there-force, not in a position to hold that the definition is vague and no guideline is indicated. It follows that the manner to be prescribed was not intended to provide the guideline or supplement the provision contained in the definition. The Legislature's mandate to the State Government was to prescribe the mode.

It has been contended by the opposite parties that the mode has been provided in the Rules. Rules 3 and 4, it is stated, are provisions of general application in regard to the Act and they apply to proceedings under Section 4 (9) of the Act. It is also contended that Section 12 (1) (ii) of the Act deals with the right conferred under Sub-section (9) of Section 4 and such dispute is to be decided by the Revenue Officer on an application to be filed by the person interested. Under Sub-section (2) of Section 12, the Revenue Officer has been vested with powers to dispose of such application after making such enquiry as may be necessary. We are afraid. Section 12 may not apply toan application under Section 4 (9) of the Act. Under Section 4, various other rights have been conferred and in view of the limitation indicated in the proviso to Sub-section (1) of Section 12 of the Act, it would be appropriate to hold that disputes contemplated under Section 12 are in regard to other rights contained in Section 4 and not regarding payment of 'fair and equitable rent'

The limitation prescribed under the proviso cannot suitably apply to proceedings for conversion of rent in kind to fair and equitable rent. On the other hand it is possible that the matter may be covered by Section 15 of the Act. The first part of Sub-section (9) of Section 4 limits the liability of the raiyats in the matter Of payment of rent to the landlord. When there is a dispute regarding the quantum of rent payable, Sub-section (9) of Section 4 has to be kept in view. Where the dispute is between the landlord and his raiyat such rent can only be fair and equitable rent. The proviso to Section 15 (1) of the Act in regard to quantum of rent payable provides a limitation of one calendar year from the due date. Whether Section 12 or Section 15 of the Act applies or neither applies is not very material to meet the contentions raised on behalf of the petitioner's counsel. Once we hold that 'in the manner prescribed' occurring in Section 4 (9) of the Act is to prescribe the mode of making of the application, it has to be seen whether such mode has been prescribed and in case such mode has not been prescribed whether Section 4 (9) of the Act can be given effect to without such prescription.

7. The Act vests the Revenue Officer with power to dispose of the Proceedings under the Act after making such enquiry as he deems fit. In fact power has also been given to him to execute his orders in such manner as he finds necessary. Rules 3 and 4 of the Rules provide for the conduct of the proceedings and notices under the Act. The proceeding under Section 4 (9) of the Act is summary in terms of Rule 3. Rule 3 makes many provisions of the Code of Civil Procedure applicable to proceedings under the Act and even inherent power has been vested in the Revenue Officer under the proviso to Rule 3. It is difficult for us to hold in the face of such provisions that the second part of Section 4 (9) of the Act is not workable as the manner has not been prescribed. Rules 3 and 4 of the Rules are of general application and they would equally apply to proceedings under Section 4 (9) of the Act.

As was stated by the House of Lords in Whitney v. Commrs. of Inland Re-Venue, (1926) 10 Tax Cas 88:--

'.....A statute is designed to beworkable and the interpretation thereof by a Court should be to secure that object unless crucial omission or clear direction makes that end unattainable .....'

There does not seem to be any such deficiency in the Act and the Rules read together and an application made under Section 4 (9) of the Act, under the Rules as they exist, can be adequately dealt with. There is no vacuum and there is no scope either for the Revenue Officer or the parties to face any embarrassment in the matter of disposal of applications made under Section 4 (9) of the Act on the ground that the mode of disposal has not been prescribed. Even if the contention of petitioner's counsel succeeds that clearer rules could be provided, we are not in a position to agree that what has been provided is so inadequate or meagre that Section 4 (9) of the Act cannot be worked out and proceedings initiated by the raiyats under the Act could not have been disposed of.

We think it appropriate to refer to Rule 12 of the Rules at this stage. The Act has defined the term 'fair and equitable rent' in clear and unambiguous terms. In the face of such a definition, it is indeed difficult to understand the contents of Rule 12. Rule 12 provides that 'The Revenue Officer shall have regard to the rent payable in respect of similar lands with similar advantages in the vicinity:' while by definition the statute prescribes that 'fair and equitable rent' in respect of any land means 'cash rent payable by raiyats for similar lands with similar advantages in the vicinity.' The term 'shall have regard to' has been interpreted by their Lordships of the Privy Council in the case of Ryots of Garabandho v. Zamindar of Parlakimedi AIR 1943 PC 164:--

'.....In their view the prime dutyof the Revenue Officer under Chap. 11 is to fix a fair and equitable rent, and though ne must be guided by the principles underlying such provisions as are contained in Chap. 3, he is not strictly bound by such provisions .....'

A Bench of this Court in the case of Banamali Babu v State of Orissa. ILR (1961) Cut 443, while dealing with the provisions of Orissa Act XVIII of 1948 also noticed the said term to be somewhat elastic and leaving some discretion with the arbitrator. When such a phrase is used, the statutory authority is not strictly bound by such provision and an exercise of power does not become invalid and in excess of jurisdiction if the provisions contained in the Act are not strict-ly followed. (See Mysore State Electricity Board v. Bangalore Woollen and Cottonand Silk Mills Ltd. AIR 1963 S. C. 1128 at p. 1136).

In view of the requirement of the statute in the definition it was not open in the Rule to confer discretion in the Revenue Officer by providing the term 'shall have regard to.' The definition, given in Section 2 (9-a) of the Act in unambiguous terms fixed the test and the rigour of the test could not be lessened by conferring discretion on the statutory authority by using the term 'shall have regard to' in the Rule. To that extent, in our view the Rule is certainly bad and does not give effect to the provisions of the Act But the existence of such a Rule however would not vitiate the proceeding or affect the jurisdiction of the prescribed authority to entertain applications under Section 4 (9) of the Act.

If in any given case it is shown that relying on the Rule the Revenue Officer has not followed the requirements of Section 2 (9-a) of the Act, interference has got to be made in a proceeding under the Act to give relief. But since that is not a matter touching jurisdiction, we need not take that aspect into consideration any further except to record our disapproval that Rule 12 of the Rules is not in compliance with the provisions of the statute because what had been stated in clear and unambiguous terms in the statute need not have been re-stated in the form as indicated in Rule 12 of the Rules.

8. The next contention is that the provisions of the Act do not apply to 'trust estates.' 'Trust estate' has been defined in Chapter II-A of the Orissa Estates Abolition Act. Counsel for the petitioners contend that in view of the definition of 'Trust estate' under the Orissa Estates Abolition Act, wherever there is an adjudication that a Particular estate is a 'trust estate.' by application of Section 73 fc) of the Act, the provisions of the Act must be held not applicable to such estate. Section 73 (c) of the Act provides:--

'73. Nothing contained in this Act, shall apply

(a) ...... ...... ...... ...(b) ...... ...... ...... ......(c) to any area which the Government may from time to time by notification in the official Gazette specify as being reserved for urban, non-agricultural or industrial development or for any other specific purpose,(d) ...... ...... ...... ......'

The contention is that with the declaration of the 'estate' as a 'trust estate' the area has been notified in the official Gazette as reserved for other specific purposes, namely, for maintenance of the trust estate. Section 73 (c) has to bestrictly construed. In a proceeding under Chapter II-A of the Orissa Estates Abolition Act (Now repealed) there is no provision for a notification in the official Gazette specifying reservation for any specific purpose as contemplated in Section 73 (c) of the Act In that view of the matter, the requirement of Sub-section (c) of Section 73 of the Act cannot be found to have been satisfied by a declaration of an estate as a trust estate under Chapter II-A of the Orissa Act 1 of 1962. There is no force in this contention and it must, therefore, be rejected.

9. We shall accordingly hold-

(1) The writ applications are maintainable;

(2) The challenge against Section 4 (9) of the Act is not tenable in view of the inclusion of the statute in the Ninth Schedule of the Constitution.

(3) Section 4 (9) of tile Act is not unworkable:

(4) The Rules provided In the Rules made under the Act are quite adequate for dealing with applications under Section 4 (9) of the Act but Rule 12 is not appropriate for the reasons indicated in paragraph 7 and:

(5) Application of the Act is not excluded by virtue of Section 73 (c) there-of in regard to trust estates.'

On these conclusions, the several writ applications have got to be dismissed. We accordingly direct that each of the writ petitions be dismissed, but we make no order as to costs.

B.K. Ray, J.

6. I agree.


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