Wanchoo, C. J.
1. This is an application under Article 226 of the Constitution by Rawat and 141 others against the State of Rajasthan, the Tehsildar of Phalodi, and Shri Vikramsingh and others in connection with proceedings under Section 4A of the Rajasthan Produce Rents Regulating (Second Amendment) Act (No. XXII) of 1953 (hereinafter called the Act).
2. The case of the applicants was briefly this:The applicants are residents of village Bhaniyana in Tehsil Pokran, and are tenants of Shri Vikramsingh and other Jagirdars of Pokran. They say that they are liable to pay one-eighth share of the produce of Bajra, Moong, Mouth, Til and Juar as rent to the jagirdar, but that no share of the produce of Guar is payable by them.The share is determined by estimate or appraisement of the standing crop, which is known as Kunta in local parlane. They further say that they were prepared in the year 1953 to have the estimate or appraisement made according to the above share; but the jagirdars demanded a greater share, i. e., 2/13ths in respect of Bajra and one-sixth in respect of Moong, Mouth, Til Juar and also Guar.
Because of this dispute between the jagirdars and the applicants, the jagirdars of Pokran made an application to the Tehsildar on 22nd December, 1953, under Sections 4A and 4B of the Act. In this application, the jagirdar said that he was entitled to 2/13ths share of Bajra and one-sixth share of other grain, but the 139 tenants against whom this application was made were not willing to have the appraisement made, and were dishonestly removing the crop. Consequently, it was prayed that the Tehsildar should come and make the appraisement.
3. The Tehsildar thereupon issued notices to the tenants fixing 24th December, 1953, as the date for making the appraisement on the spot. Only a few tenants were served for the 24th of December, and therefore the Tehsildar issued further notices on 24th of December for service on the remainder. Eventually the Tehsildar made the appraisement in connection with the crop of the 139 tenants between the 25th and the 28th of December, 1953.
During these proceedings, a number of tenants made an application to the Tehsildar on 28th of December. 1953, in which they said that the jagirdar's share Of the crop was only one-eighth except in the case of Guar where the jagirdar was entitled to no share at all. It was also said that the tenants were prepared to agree to an appraisement according to this share and not otherwise.
The Tehsildar ordered the tenants, who had made this application, to produce evidence in support of their case on the 2nd of January, 1954. The applicants' case is that they were not informed that they were to produce evidence in sup, port of their application on 2nd of January, 1954.
Consequently, they did not appear at Phalodi Tehsil on 2nd of January. Thereupon, the Tehsildar passed an order recording that the tenants were absent, and called upon the jagirdar to substantiate his claim as to the share he was entitled to get.
4. On 4th of January ex parte evidence was taken, and the Tehsildar held in favour of the share claimed by the jagirdar, and passed an order to the effect that the jagirdar was entitled to the price of the grain according to the present rate in accordance with the appraisement made by him between the 25th of December and 28th of December, 1953.
It may be mentioned that no decrees were apparently prepared, and signed by the Tehsildar in pursuance of this order fixing the actual sum due from each of the 139 tenants.(5) The applicants filed an appeal against the order of 4th of January, 1954, before the Collector of Jaisalmer. That was dismissed on the ground that no appeal lay. The applicants then went in second appeal to the Additional Commissioner. That appeal was also dismissed on the ground that no appeal lay. The applicants then filed a revision before the Board of Revenue.
The Board held that it had no jurisdiction to interfere in revision, on the basis of an unreported judgment of this Court, In re Motisingh v. Revenue Board, Civil Misc. Writ No. 74 of 1951, D/- 5-5-1952 (A). Thereupon, the present application was filed in this Court.
6. The applicants' contentions before us are three-fold-
(1) that the Tehsildar had no jurisdiction to do what he actually did in this case,
(2) that the principles of natural justice were violated, and therefore the order of the Tehsildar. even if he had jurisdiction, should be set aside.
(3) that Section 4B of the Act was hit by Article 14 of the Constitution inasmuch as two different procedures were prescribed when the matter was dealt by the Tehsildar, and when it was to be dealt by an officer deputed by the Tehsildar.
7. The application has been opposed mainly on behalf of the jagirdars Shri Vikramsingh and others. No reply has been filed on their behalf, but their contention is that the Tehsilaar had jurisdiction and that there was no violation of the principles of natural justice, and that Section 4-B of the Act is not discriminatory.
8. We shall first consider the question, of jurisdiction. The point that has to be considered in this connection is the extent of the powers of the Tehsildar in a case arising under Section 4A of the Act. We may in this connection set down the relevant portion of Section 4A, which is as follows:
'(1) When the rent is payable by a division of the produce or is based on an estimate or appraisement of the crop-
(a) if either the land-holder or the tenant neglects to attend at the proper time, or
(b) if there is a dispute about the division, quantity or value of the produce, the Tehsildar may, on the application of either party, proceed to make or depute an officer to make the division, estimate or appraisement:
9. Then follows Section 4B which provides the procedure. Under Sub-section (1), the Tehsildar has to issue a written notice to the opposite party to attend on a date, time or place specified in the notice. Thereafter, if the Tehsildar decides himself to make the division, estimate or appraisement, he has to go to the place specified in the notice on the date so fixed, hear the parties, record their objections, and inspect the produce or the crop.
The Tehsildar has then to decide all objections and divide the produce in such a manner as lie thinks best and most equitable. Where, however, the rent is based on an estimate or appraisement of the crop, the Tehsildar has to make an estimate of the value of the crop, determine the amount to be paid and pass an order for the payment of such amount and costs, if any, and such an order has the effect, of a decree of arrears of rent.
10. Where, however, the Tehsildar deputes another officer to make a division or an appraisement, a slightly different procedure is provided. This officer has to appoint assessors with him to assist him in the division of produce or in the appraisement of the crop. He has to record the opinion of the assessors before making what is called his award.
Clause (vi) of Sub-section (4) of Section 4B provides that if it is a case of division of the produce, and the parties agreed to the manner of division proposed by the officer, the division shall be made accordingly. But if the parties do not agree to such manner of division, and in all cases in which the rent is based on an estimate or appraisement of the crop, or if it is claimed that no rent is payable, the officer shall make an estimate of the value of the produce or crop and determine the amount to be paid, and submit his report to the Tehsildar.
Thereafter, the Tehsildar under Clause (vii) issues notice to the parties to file objections before him within one. week. The Tehsildar, thereafter, after hearing objections and making further enquiry as may be necessary, confirm, modify or set aside the award, and, if any amount is 'found due. pass an order for the payment of such amount and costs, if any, and such order shall have the effect of a decree for arrears of rent.
11. The most important question is the extent of the power of the Tehsildar in a case under Sections 4A and 4B of the Act. The contention on Behalf of the applicants is that the Tehsildar has no power to decide any dispute between the landlord and the tenant as to the share which the landlord is to get.
It is urged, that such a dispute amounts to a dispute as to determination of rent which is provided under Group B of the First Schedule of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. 1) of 1951 which was in force at that time, and under which such a dispute has to be tried out in a suit which can only be tried by an Assistant Collector.
It is urged that Sections 4A and 4B of the Act were not meant to modify the Revenue Courts Procedure and Jurisdiction Act, and were only confined to cases of division and appraisementwhere there was no dispute as to the share which the landlord would get.
12. We are of opinion that there is force in this contention of the applicants, and the Tehsildar has no jurisdiction to decide in these proceedings the share of rent to which the landlord will be entitled if there is any dispute about it. The jurisdiction is conferred on the Tehsildar under Section 4A, and that jurisdiction is merely this-- Where the rent is payable by a division of the produce or an appraisement of the crop, the Tehsildar can proceed to make, or depute an officer to make, a division, estimate or appraisement only under two conditions, namely where either the landlord or tenant neglects to attend at the proper time, or if there is a dispute about the division, quantity or value of the produce.
Clauses (a) and (b) of Sub-section (1) of Section 4A, and Section 4B, do not, in our opinion, contemplate that the Tehsildar would decide the share of the produce payable as rent under Section 4A. Both these clauses in our view assume that there is no dispute as to the share which the landlord is to get from the tenant, and the dispute is only about the neglect of one partly or the other to be present for purposes of. appraisement, or about theactual division the quantity or value of the produce.
As soon as there is a dispute between the landlord and the tenant about the share which the landlord should receive as rent, a question of determination of rent arises, and that can only be decided by an Assistant Collector under item 15 of Group B. of the First Schedule of the Rajasthan Act No. I of 1951, and now under item 6 of Part I of the Third Schedule of the Rajasthan Tenancy Act (No. III) of 1955.
The jurisdiction to decide this matter is in the Assistant Collector, and not in the Tehsildar, There is nothing in Section 4A of the Act which, to our mind, gives jurisdiction to the Tehsildar, if a dispute is raised as to whether the share is say one-sixth or one-eighth, to decide that dispute. It could hardly have been the intention of the legislature when it enacted Section 4A of the Act to amend item 15 of Group B of the First Schedule of the Rajasthan Act No. I of 1951.
It is also remarkable that no appeal is provided against proceedings under Sections 4A and 4B, and that also shows that the scope of proceedings under these sections was a limited one, namely the Tehsildar was to go to the spot or send an officer to the spot, and make the division or appraisement of the crop.
In such a case, one could understand there being no appeal provided against the findings of an officer who had visited the spot and seen the produce or the crop. But so far as a suit for determination of rent is concerned, the law provided that it should be tried out by an Assistant Collector, and there should be the usual appeals. The only exception that is made in Sub-section (3), and Clause (vi) of Sub-section (4) of Section 4B of the Act is that if it was claimed that no rent was payable, the Tehsildar could still make an estimate of the value of the crop, and determine the amount payable.
The reason seems to have been that where it is a case of payment of rent by division of produce or by appraisement, the objection of a tenant to the effect that no rent was payable, (i.e. that it had been paid) would be frivolous, and the Tehsildar should disregard such a plea. In any case, there is nothing in Sections 4A and 4B which, give's power to the Tehsildar to decide a dispute as to the actual share of the produce or of the crop which the landlord would be entitled to receive.
Such a dispute would immediately be a dispute as to determination of rent and would have to be decided by an Assistant Collector under the law which was then in force. We may also point out that the position has been made perfectly clear under the Rajasthan Tenancy Act of 1955 under Sections 148 and 149 which deal with a similar state of affairs.
Sub-section (8) of Section 149 makes it clear that in case any party objects that the rent is not based on an estimate or appraisement of the crop, or a division of the produce, or that no amount is to be paid, or that the proportion of produce claimed by the land-holder as rent is higher than is really due, the Tehsildar shall not decide such objection, but shall direct the parties to get their rights decided by a court of competent jurisdiction, and in such cases the Tehsildar may on the application of a land-holder direct the tenant to furnish a bond, with or without sureties, to pay the rent according to the final decision of the suit, within one month of such decision.
As we have said before, Section 4A makes only one difference from the law as it now stands under Sub-section (8) of Section 149, namely that it allowed the Tehsildar, even where it was objected that no rent was payable, to pass a decree. That, as we pointed out above, might very well have been due, to the fact that the case being of payment of rent by division or appraisement of crop, an objection that no rent was payable, meaning thereby that the rent 'had been paid, might have been considered frivolous.
But apart from this, Sections 4A and 4B, as they stand, do not, in our opinion, give any power to the Tehsildar to decide a dispute as to the snare of the rent claimed by the hand-holder. It is remarkable in this connection to note that the jagirdar, when he made his application on the 22nd of December, 1953, did not say that there was a dispute as to the share of produce.
All that he said was that these tenants were not agreeable to have the appraisement made, and the application was really under Clause (a) of Sub-section (1) of Section 4A. It is only the tenants who raised the dispute as to the share of the produce payable to the jagirdar when the Tehsildar reached the spot.
We are, therefore, of opinion that in as much as a dispute was raised by the tenants as to the share due to the jagirdar, the Tehsildar had no jurisdiction to pass a decree after appraisement. We should not be taken to say, however, that as soon as such a dispute is raised, the Tehsildar should not make the appraisement. He certainly could make the appraisement after having seen the crop, but he cannot pass a decree as is said to have been done in this case,
The appraisement, which the Tehsildar makes, can be used as evidence in a suit for determination of rent, and arrears of rent following thereon. In as much as the Tehsildar in this case purported to pass a decree in favour of the jagirdars according to the price of the amount found by him on appraisement, he had no jurisdiction to do so.
Of course, the formal defect is there that the Tehsildar never calculated the exact amount due. and it is not known how the exact amount due from each tenant which the jagirdar later tried to execute was found out. It is enough to point out that even where there is no dispute as to the share due to the land-holder, it is the Tehsildar who has to determine the amount to be paid on appraisement. He cannot pass a decree of the type passed in this case, namely that the land-holder would get the price of his share of the grain according to the prevailing market price.
The Tehsilar's decree has to be specific, and he has to state the actual sum of money due to the land-holder after he has calculated the value of the produce of the share of the jagirdar in the best manner possible.
13. Another defect in the appraisement in this case, which also concerns the jurisdiction of Tehsildar under Sections 4A and 4B is this. Section 4B contemplates that the Tehsildar or the officer, deputed by him, would go to the spot, and inspect the produce or the standing crop, and either divide the produce or make an appraisement or estimate of the standing crop.
It is no part of the jurisdiction of the Tehsildar to decide whether any part of the crop had been removed, and to take that into account in making the division or making his appraisement.
What Sections 4A and 4B contemplate is that the Tehsildar should deal with the produce actually found by him and divide it according to the shares of the land-holder and the tenant, or make an appraisement, of the standing crop which he finds on the spot, and calculate its value, and then find out the amount due as the share of the land-holder, and pass an order accordingly.
In the case of many of the tenants, however, the Tehsildar has not only considered the crop or the produce which he found at the spot, but also the grains supposed to have been removed or eaten up by the tenants. It is enough to point out that the jurisdiction of the Tehsildar under Sections 4A and 4B is confined only to divide the produce found by him, or to appraise the crop found standing by him, and no more. If he goes beyond that, as he has done in the case of many of the tenants, he is acting beyond his jurisdiction.
14. The second point that has been urged is that the principles of natural justice have been violated. We do not think it necessary in this connection to go into the matter in great detail because the application must be allowed in view of what we have said on the question of the Jurisdiction of the Tehsildar.
But we do think it necessary to point out that each case of appraisement against a tenant is a separate case and should be dealt with separately, and a separate record with a separate number should be assigned to each case. That will avoid the confusion which has occurred in this case, and has in some cases certainly resulted in violation of the provisions of the Act which provide for notice and notice to the opposite party is also one of the principles of natural justice.
Section 4B provides that the Tehsildar shall issue a notice to the opposite party asking him to attend on a certain date and at a certain place time. As 139 cases were mixed up into one, there has been a lot of confusion in this connection. We understand that 17 out of the present applicants were not served at all, but the Tehsildar has proceeded on the basis as if they were served. 64 were served, while in the case of 26 it is doubtful whether they were served before the date fixed.
As we have said earlier, many of the tenants could not be served for the 24th, and notices were issued for them for the 25th of December. But these notices were returned on 2nd of January, and the officer returning the notices did not specify on which date he had served them. The contention of the applicants is that the notices were served days after the appraisement had been made.
All this confusion would have been avoided if the case of each tenant had been separately registered as one case and separately dealt with. This is the intention of Section 4A, and this what the Tehsildar should always do.
15. Another point, which was pointed out in this very connection, is that the notice issued by the Tehsildar was also defective, Section 4-B re-quires that the notice should tell the opposite: party the date, time and place where he should attend. The Tehsildar, in his order of 22nd of December. 1953, said that he would be at Bhaniyana on 24th of December, 1953, for making appraisement, and the tenants should file objections on the spot before him.
The first defect in the notice is that the time was not mentioned. It is also urged thatthough the tenants were directed to be present atthe spot, namely at their fields, on 24th of December, the Tehsildar never went to the fields on that day.
We need not pursue this matter further except to say that there is a goad deal of force in the contention of the applicants that the service of the notice on many of them was perfunctory, and the Tehsildar assumed their absence without taking care to see whether they had been properly served or not.
16. The last point, that has been urged, is that the difference in procedure when the Tehsildar himself goes to the spot and when he sends and officer is bad. and is hit by Article 14. So far as that is concerned, it is enough to say that the objection has no -force. Obviously when the Tehsildar goes to the spot for deciding the limited question which alone he has jurisdiction to decide under Sections 4A and 4B of the Act, the law leaves it to him to decide it as best as he can on the spot after notice to parties and hearing their objections.
Where, however, he sends an officer subordinate to him, the law provides a procedure which this officer has to follow. The decision of this officer is not final. He has to make a report, which is in the nature of an award to the Tehsildar. The Tehslidar then issues notice to the parties on the report, and after hearing the objections or the parties to the award decides the matter as best as he can.
In effect, therefore, there is no difference between the procedure provided for the Tehsildar in the one case or the other. It is only so far as the subordinate officer is concerned that a certain difference is made because he is not the person, who will give, the final decision which is in the hands of the Tehsildar.
Where the Tehsildar goes to the spot and appraises the crop, the law did not think it necessary that he should he assisted by assessors; but where he sends a subordinate officer the law thought it necesary that there should be assessors to help this subordinate officer and also to help the Tehsildar who will make a decision without going to the spot and seeing the produce or the crop. The difference in the procedure in the circumstances is obviously justifiable as a matter of classification, and cannot, in our opinion, be hit by Article 14 of the Constitution.
17. Lastly, it was urged on behalf of the jagirdars that the applicants should have come to this Court immediately after the Tehsildar's order of January, 1954, and should not have wasted time in going in appeal to the Collector, second appeal to the Commissioner, and in revision to the Board.
18. It is true that no appeal is provided against an order under Section 4B. In the Marwar Tenancy Act of 1049, which was in force in 1953 so far as substantive law is concerned, an appeal is provided in item 7 of Group C of the Second Schedule to the Act. In the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. I) of 1951, which was also in force, and dealt with procedure only, there was an appeal under item 10 of Group E of the First Schedule, but that appeal was of a circumscribed nature in favour of the tenant.
The applicants are tenants, and it is they who went in appeal. It may be that they might have been advised that an appeal was possible. In the circumstances, we are not prepared topenalise them for the delay that has taken place on account of the appeals that they filed.
19. We may also in passing point out that the learned Members of the Revenue Board were not right in saying that they had no power in this case. Reliance in this connection was placed on an unreported judgment of this Court in Motisingh v. Revenue Board, Civil Misc. Writ No. 74 of 1951 (A).
We have looked into that judgment. All that we need say is that that judgment does not deal with the powers of the Revenue Board under Section 12 of the Rajasthan Board of Revenue Ordinance (No. XXII) of 1949 which was then in force. In that case, this Court dealt with Section 11 (2) of the Ordinance. The Board has, however, the power of general superintendence and control over all other revenue courts and officers under Section 12 of the Ordinance which was not dealt with in that case at all.
Whether the Tehsildar acting under Section 4A is a Court or an officer, the Board has power of superintendence over him under Section 12, and can interfere with his orders in appropriate cases. The Board was, therefore, not right in saying that it had no powers of interference at all, though there may be no power of revision as such under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act.
But even that would depend upon whether the Tehsildar in proceedings under Section 4A wag a court. If he was. the Board would have power even under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act of 1951 under Section 26 to call for the record and correct errors of jurisdiction.
The delay, therefore, which has occurred, in this case, has been sufficiently explained, and we should give relief to the applicants in the circumstances when we are satisfied that the Tehsildar has clearly exceeded his jurisdiction.
20. We therefore, allow the application, andset aside the order of the Tehsildar, which hasin effect passed a decree for arrears of rentagainst these applicants. The parties will haveto get their dispute as to the share of the produce payable to the land-holder decided in a proper court according to law. In view however ofthe fact that the implications of the law as contained in Sections 4A and 4B were not quite clear, weorder parties to bear their own costs of this proceeding.