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Smt. Gulab Sundari Bapna Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberC. Writ No. 496 of 1962
Judge
Reported in1969()WLN615
ActsTenancy Law; Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 - Sections 27 and 34(1); Rajasthan Jagirdars' Debt Reduction Act, 1956 - Sections 7
AppellantSmt. Gulab Sundari Bapna
RespondentState of Rajasthan and ors.
Cases ReferredMukan Chand v. Rao Raja Inder Singh
Excerpt:
.....reduction act, 1956--whether maintenance allowance be determined after taking into account debts payable by jagirdars.; section 27 does not enjoin upon the jagir commissioner to keep into consideration the debts of the jagirdar while fixing the amount of maintenance payable to per onsintitled to receive such maintenance while it speaks of other matters which are to be taken into consideration. under the rules also no provision has been made for taking the debts of the jagirdar into consideration while fixing the amount of maintenance, if the legislature so intended it could have provided that the maintenance allowance had to be fixed after taking into consideration the amount of debts of the jagirdar also in the absence of such a provision it cannot be justifiably contended that before..........for decision by the division bench to the full bench.'whether the amount of annual maintenance allowance payable to persons entitled to such allowance under section 27 of the rajasthan land reforms and resumption of jagirs act, 1952, should be determined after taking into account the amount of money payable by the jagirdar to his creditors under the provisions of the rajasthan jagirdars' debt reduction act, 1956, or not?'2. the board of revenue which is one of the respondents in the writ petition under articles 226 and 227 of the constitution of india in its order dated 25-10-1962 held that 'in fixing the amount for maintenance the question of the jagirdar's debt does not find any place under the law' and, therefore, directed the additional jagir commissioner to determine afresh the.....
Judgment:

Bhargava, J.

1. The following question of law has been referred for decision by the Division Bench to the Full Bench.

'Whether the amount of annual maintenance allowance payable to persons entitled to such allowance under Section 27 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, should be determined after taking into account the amount of money payable by the Jagirdar to his creditors under the provisions of the Rajasthan Jagirdars' Debt Reduction Act, 1956, or not?'

2. The Board of Revenue which is one of the respondents in the writ petition under Articles 226 and 227 of the Constitution of India in its order dated 25-10-1962 held that 'in fixing the amount for maintenance the question of the Jagirdar's debt does not find any place under the law' and, therefore, directed the Additional Jagir Commissioner to determine afresh the amount of maintenance which they are entitled to receive in accordance with law.

3. The petitioner who holds a decree against the Jagirdar i.e., respondent No. 9 has challenged the order of the Board of Revenue on various grounds including the one which has given rise to this reference.

4. Learned counsel for the petitioner in support of his contention mainly relies upon Section 7 read with Schedule II of the Rajasthan Jagirdars' Debt Reduction Act, 1956 (Act No. 9 of 1957) (hereinafter called Act No. 9 of 1957). His contention is that the decree in favour of the petitioner is to be executed against the maximum amount determined in accordance with the formula given in Schedule II. According to this formula this amount is determined by multiplying total amount of compensation for jagir lands plus the total amount of rehabilitation grant payable in respect of the jagir land by 75 if it exceeds Rs. 4,00,000, by 65 when itexceeds Rs. 2,00,000 but does not exceed Rs. 4,00,000 and by 55 if it exceeds Rs. 1,00,000 but does not exceed Rs. 2,00,000 and then dividing it by 100.

Emphasis is laid on the fact that it Is the total amount of compensation for the jagir lands plus the total amount of rehabilitation grant which has to be considered in determining the maximum amount against which the decree is to be executed and the amounts payable to maintenance holders are not to be deducted In working out the maximum amount against which the decree is to be executed. It is pointed out that the provision of Section 7 read with Schedule II is to be given effect notwithstanding anything contained in any other law as the opening words of Section 7 show.

Learned counsel draws support for his argument from the following observations made in Mukan Chand v. Rao Raja Inder Singh, ILR (1959) 9 Raj 547.

'The decree-holder has drawn our attention to the fact that the Additional Jagir Commissioner made some payments to the Jagirdar and to persons entitled to maintenance allowance out of the income of the jagir even after the service of the order of attachment attaching compensation and rehabilitation grant to the extent of Rs. 99,965.22. Learned counsel for the respondents were unable to point out any provision of law exempting any part of the compensation and rehabilitation grant from attachment and sale in execution of the decree of a Civil Court. The amount of maintenance can only be determined on the basis of the compensation and rehabilitation grant remaining available to the Jagirdar after attachment. It is for the executing Court to determine what portion of the compensation and rehabilitation grant can be so attached and not for the Additional Jagir Commissioner, The Additional Jagir Commissioner had no excuse for making any payments after the order of attachment had been served on him.'

5. In order to appreciate the contention of the learned counsel it is necessary to refer to some of the provisions of the Rajasthan Reforms and Resumption of Jagirs Act, 1952 (Act No. VI of 1952) (hereinafter called Act No. 6 of 1952). Section 21 relates to the resumption of jagir lands and empowers the Government to appoint by notification in the Rajasthan Gazette a date for the resumption of any class of jagir lands. Section 22 describes the consequences of resumption. Chapter VI deals with the question of compensation. Section 26 says :--

'Subject to the other provisions of this Act, the Government shall be liable to pay to every Jagirdar whose jagir lands are resumed under Section 21, such compensation as shall be determined in accordance with the principles laid down in the second schedule.'

Section 27 with which we are mainly concerned deals with the question of maintenance of persons who are entitled to receive maintenance allowance out of the income of any jagir under any existing jagir law and lays down the following points which the Jagir Commissioner has to take into consideration in fixing the amount:

i. the amount of maintenance allowance which that person used to receive from the Jagirdar before the date of resumption; or was entitled to receive;

ii. the net income of the Jagirdar from the Jagir at the time of fixing the said maintenance allowance;

iii. the net amount of compensation and rehabilitation grant payable to the Jagirdar; and

iv. such other matters as may be prescribed.

Sections 29 and 30 which deal with the amount payable to the co-sharer and the dues and debts respectively are as under

Section 29. Amount payable to a co-sharer. -- Any co-sharer of a Jagirdar who, under any existing Jagir law, is entitled to receive any share out of the income of any Jagir land shall be paid such amount every year from the annual instalment of compensation and rehabilitation grant payable under this Act as bears to the total compensation and rehabilitation grant the same proportion which his share of the income of the jagir land bears to the total income of the jagir land.

Section 30. Dues and Debts.-- The amounts due from a Jagirdar under Clause (2) of Sub-section (1) of Section 22 shall be recoverable out of the compensation payable to him under Section 26.'

Then comes Chapter VII which relates to payment of compensation. Sections 32 and 34 which are relevant for our purpose, are as follows:--

Section 32. Determination of compensation.-- (1) On receipt of a statement of claim under the last preceding section or if no such statement of claim is received within the period specified in that section, upon the expiry of that period the Jagir Commissioner shall, after making such enquiry as he deems necessary, by order in writing provisionally determine--

(a) the amount of compensation payable to the Jagirdar under Section 26;

(b) the amount recoverable from the Jagirdar under Clause (2) of Subsection (1) of Section 22 and the Second Schedule;

(c) the amount of annual maintenance allowance, if any, payable to persons entitled to such allowance under Section 27;

(d) Omitted;

(e) the amount, if any, payable to co-sharers under Section 29.

(2) A copy of an order made under Subsection (1) shall be served upon the Government, the Jagirdars and every other interested person and the Jagir Commissioner shall after giving the Government, the Jagirdar and any such interested person a reasonable opportunity of being heard in the matter, make a final order.

Section 34. Dues and deductions how payable-- (1) The amounts recoverable from a Jagirdar under Clause (e) of Sub-section (1) of Section 22 and those determined in an order made under Sub-section (2) of Section 32 shall be deducted from the compensation payable to him under Section 26.

(2) The amount finally determined under Clauses (b), (c) and (e) of Sub-section (1) of Section 32 shall be payable in the same number of instalments as the compensation payable to the Jagirdar.

6. Two things would be clear from the above quoted provisions:

(1) that Section 27 does not enjoin upon the Jagir Commissioner to keep into consideration the debts of the Jagirdar while fixing the amount of maintenance payable to persons entitled to receive such maintenance while it speaks of other matters which are to be taken into consideration. Under the rules also no provision has been made for taking the debts of the Jagirdar into consideration while fixing the amount of maintenance. If the Legislature so intended it could have provided that the maintenance allowance had to be fixed after taking into consideration the amount of debts of the Jagirdar also. In the absence of such a provision it cannot be justifiably contended that before fixing the amount of maintenance payable under Section 27 the Jagir Commissioner should take into account the debts of the Jagirdar.

(2) that under Section 32 the Jagir Commissioner is required to provisionally determine, after such enquiry as he deems necessary, the amount of compensation payable to the Jagirdar under Section 26 and other amounts mentioned in Clauses (b), (c) and (e). Thereafter, after following the procedure laid down under Sub-section (2) of Section 32 the Jagir Commissioner is to pass a final order. The amounts recoverable from a Jagirdar under Clause (2) of Sub-section (1) of Section 32 and those determined in the order made under Sub-section (2) of Section 32 are to be deducted from the compensation payable to him under Section 26 (Section 34(1)).

7. It is thus clear that the amount of annual maintenance allowance as determined by the Jagir Commissioner under Section 32(2) is to be deducted from the compensation payable to the Jagirdar under Section 26 without any regard to his debts. Thus the creditors of the Jagirdar cannot claim priority for the recovery of their debts against the claims of persons entitled to maintenance from the income of the Jagir. Thus there is nothing in the provisions of Act No. 6 of 1952 to warrant a suggestion that the amount of annual maintenance allowance payable to persons entitled to such allowance under Section 27 of the Act is to be determined after taking into account the amount of money payable by the Jagirdar to his creditors.

8. We have now to consider whether the argument of the learned counsel can be sustained on the basis of the provisions of Act No. 9 of 1957. In the first instance we may point out that the two pieces of legislation i.e., Act No. 6 of 1952 and Act No. 9 of 1957 are of different scopes and are not in pari materia. It is Act No. 6 of 1952 which governs the right of persons entitled to maintenance and co-sharers and Act No. 9 of 1957 does not deal with their right at all. It is therefore, not permissible to interpret the provisions of Section 27 of Act No. 6 of 1952 with the help of Section 7, read with Schedule II of Act No. 9 of 1957. The term 'compensation' has been thus defined in Act No. 9f of 1957:

'compensation' means compensation payable under the relevant Act for the resumption, acquisition or abolition of Jagirs or for their vesting in the State and includes interim compensation, if any, so payable.'

and Section 7(1) (a) runs thus

Debt realisable from compensation money and rehabilitation grant. -- (1) Notwithstanding anything in any agreement, document or law for the time being in force, but subject to the provisions of Sub-section (2) a decree relating to a debt, whether the debt is a secured debt or otherwise, passed in any suit to which this Act applies--

(a) shall, in so far as the compensation for the jagir lands of the judgment debtor is concerned, be executed only in accordance with the formula given in Schedule II.

In Schedule II it has been stated that in this formula 'T' stands for the total amount of compensation for the jagir lands plus the total amount of rehabilitation grant payable in respect of the jagir lands, and E stands for the maximum amount out of the aggregate of such compensation and rehabilitation grant against which a decree of the class referred to in Sub-section (1) of Section 7, or if there aremore than one such decrees, all such decrees taken together may be executed.

9. It is on the basis of these provisions that the learned counsel contends that it is against the total amount of compensation for the jagir land plus the total amount of rehabilitation grant that the decree is to be executed in accordance with the formula given in Schedule II. Learned counsel also points out that Section 7 of Act No. 9 of 1957 has an overriding effect upon the provisions of the previous Act as would appear from its opening words and as such it should be interpreted on its own terms despite the provisions of Section 27 of Act No. 6 of 1952.

There is, however, difficulty in accepting this argument because the co-sharers and persons entitled to maintenance under the existing Jagir Law are entitled in their own right to claim compensation and maintenance allowance out of the compensation and rehabilitation grant payable to the Jagirdar. Against such co-sharers and persons entitled to maintenance the decrees obtained against the Jagirdar are not executable and if the contention of the learned counsel is accepted then the effect would be that even their share of compensation would be attached and in some cases nothing might be left for them to be paid. In our opinion it cannot be assumed that the Legislature intended by enacting Section 7 of Act No. 9 of 1957 to take away with one hand what it had given with the other to them. There is nothing in this Act to clearly show that it overrides the provisions of Sections 27 and 29 of Act No. 6 of 1952. On the one hand it was intended by the Legislature that the co-sharers of the Jagirdar and persons entitled to maintenance after the resumption of the Jagir should also get their share of compensation and maintenance allowance which they were entitled to under the existing jagir law out of the income of any jagir and on the other hand to scale down the debts of Jagirdars whose jagir lands had been resumed under the provisions of Act No. 6 of 1952.

It is a sound rule of interpretation that a statute should be so construed as to prevent the mischief and advance the remedy according to the real intention of the makers. It is, therefore, the duty of the court to so construe the provisions of the two Acts so that effect could be given to both.

10. The term 'compensation' has not been defined in Act No. 6 of 1952. The definition of 'compensation' in Act No. 9 of 1957 without reference to any section of Act No. 6 of 1952 only says 'compensation payable under the relevant Act for the resumption'. Now under Act No. 6of 1952 which is with regard to the resumption of jagirs as per Section 26 Government is liable to pay such compensation to the Jagirdar as is determined in accordance with the principles laid down in Schedule II. But Section 26 is subject to the other provisions of the Act and Sections 27, 29, 32 and 34 are such sections. As already stated the amount of compensation payable to co-sharers and persons entitled to receive maintenance allowance is to be deducted from the compensation payable to the Jagirdar as provided in Section 34(1).

11. We are, therefore, of the opinion that the term 'compensation' used in Act No. 9 of 1957 means compensation payable to the Jagirdar after allowing deductions as provided in Section 34(1) of Act No. 6 of 1952. If the term 'compensation' is so read then whatever amount of compensation remains payable to the Jagirdar is the amount against which the decree can be executed in accordance with Schedule II of Act No. 9 of 1957. By interpreting the term 'compensation' in this manner the co-sharers and the persons entitled to maintenance get their share of compensation and maintenance allowance as provided in Sections 27 and 29 of Act No. 6 of 1952 and the creditors of the Jagirdar also receive their due share in execution of the decree in accordance with the provisions of Section 7 read with Schedule II of Act No. 9 of 1957. In Schedule II also 'T' carries the same meaning of compensation as aforesaid.

12. In the decision referred to by the learned counsel the vires of Section 2(e) and Sections 3 to 8 of Act No. 9 of 1957 were challenged. The question which has been referred to this Full Bench was not in issue in that case. However, it seems that the attention of the Court was drawn to the fact that the Jagir Commissioner had made some payments to the Jagirdar and to persons entitled to maintenance allowance out of the income of the Jagirdar even after service of the order of attachment of the compensation and the rehabilitation grant was made. The learned Judges took exception to the procedure adopted by the Jagir Commissioner and in passing made the observations which have been quoted above. These observations in our opinion are in the nature of obiter and were not necessary for the decision of that case. The point which is in issue before us was not in issue in that case and does not seem to have been fully argued before that court and with utmost respect we may say that the aforesaid observations cannot be regarded as the considered opinion of the court on the subject. We are, therefore, of the opinion that the learned counsel cannot take advantage of the aforesaid observations in support of his contention.

13. For the foregoing reasons our answer to the question referred to us is, therefore, in the negative.


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