Vyas Dev Misra, C.J.
1. This judgment will dispose of a number of petition in which a common question of law has arisen.
2. In order to provide relief from indebtedness to certain farmers, landless agricultural labourers, and rural artisans in the State of Himachal Pradesh, the State Legislative Assembly pasted the Himachal Pradesh Relief of Agricultural indebtedness Act (Act No. 17 of 1976) (hereinafter referred to as the Act). It came into force on 13th Nov., 1975. Since the relief was to be granted only to a defined class of farmers, various words were defined by Section 2 (1) of the Act. We may now note the relevant provision of this Sub-section:
'(a) 'agriculturist' means a person who cultivates land personally;
(b) 'appointed day' means the 13th Nov., 1975; xx xx xx xx
(f) 'debt' with its grammatical variations and cognate expressions means any liability in cash or kind, whether secured or unsecured due from a debtor whether payable under a decree or order of any Civil Court or otherwise;
(g) 'debtor' means a marginal farmer, a landless agricultural labourer or a rural artisan who is in debt; but does not include B small farmer;
(h) 'to hold land' with its grammatical variations and cognate expressions means to be lawfully in actual possession of land as owner, tenant or Government lessee and the expression 'holding' shall be construed, accordingly;
(i) 'landless agricultural labourer' means a person who does not hold any land and whose principal means of livelihood is manual labour on agricultural land and includes a person who follows any one or more of the following agricultural occupations in the capacity of labourer on hire or exchange, whether paid in cash, in kind or partly in cash and partly in kind:--
(a) farming including cultivation and tillage of soil etc.;
(b) dairy farming;
(c) production, cultivation, growing and harvesting of horticultural commodity;
(d) raising of livestock, bees or poultry; and
(e) any practice performed on a farm as incidental to or in conjunction with farm operations (including any forestry or timbering operations) and preparation for market and delivery to storage or to market or to carriage for transportation of farm products;
XX XX XX(k) 'marginal farmer' means an agriculturist who earns his livelihood mainly by agriculture and who holds land not exceeding one hectare of unirrigated or half hectare of irrigated land: Provided that if a marginal farmer holds both classes of land then the area for the purpose of this clause shall be determined on the basis of half hectare of irrigated land counting as one hectare of unirrigated land and on the basis of this conversion ratio the total area of such farmer shall not exceed one hectare;'
3. Sub-section (2) of Section 2 gives jurisdiction to Revenue Officers to decide the question whether a person claiming a relief under the Act belongs to the category of persons to whom the relief has been granted. This is in the following terms:
'If a question arises whether a person is a marginal or small farmer, or a landless agricultural labourer or a rural artisan, the question shall be referred to an officer not below the rank of a Tehsildar duly appointed by the State Government in that behalf and the decision of such officer on the question shall be final and conclusive and shall not be called in question in any Civil Court:
Provided that no such question shall be decided unless an opportunity has been given to the interested parties to be heard.'
4. Section 3 provides for the consequences of commencement of this Act. It reads thus:
'Notwithstanding anything contained in any other law for the time being in force or in any contract, decree of any Court or other instrument having force by virtue of any such law, and save as otherwise expressly provided in this Act, every debt outstanding on the appointed day, including the amount of interest, if any payable by a debtor to creditor shall be deemed to be wholly discharged, and the consequences as hereinafter set forth shall, with effect from the appointed day, ensue, namely :--
(a) no such debt due from a debtor on the appointed day shall be recoverable from him or from or against any movable or immovable properly belonging to him, nor shall any such properly be liable to be attached and sold or proceeded against in any manner in the execution of any decree or order relating to such debt against him;
(b) no Civil Court shall entertain any suit or proceeding against such debtor for the recovery of any amount of such debt, including interest, if any:
Provided that where a suit or proceeding is instituted jointly against such debtor or any other person nothing in this clause shall apply to the maintainability of a suit or proceeding in so far as it relates to such other person; (c) all suits and proceedings (including appeals, revisions, attachment or execution proceedings) pending on the appointed day for the recovery of any such debt against such debtor shall abate:
Provided that nothing in this clause shall apply to the sale of--
(i) any movable property held and concluded before the appointed day;
(ii) any immovable property confirmed before such day;
(d) every debtor undergoing detention in a civil prison in execution of any decree for money passed against him by a Civil Court in respect of any such debt shall be released forthwith;
(e) every property pledged or mortgaged by such debtor shall stand released in favour of such debtor, and the creditor shall be bound to return the same to the debtor forthwith, if the debtor is opposed or impeded in taking possession of the property then he may request the District Magistrate, or any Executive Magistrate authorised by him to enforce delivery of possession of such properly. The District Magistrate, or as the case may be, the Executive Magistrate shall take or cause to be taken such steps and use or cause to be used such force as may be reasonably necessary for securing the delivery of possession of the property to the debtor.'
5. The first question which falls for determination is as to under what circumstances the court should stay further proceedings and make a reference under Sub-section (2) of Section 2 of the Act.
6. Before any reference can be made under sub-section (2) of Section 2 it is necessary that there should be in existence a 'debt'. The definition of the word 'debt' covers up, amongst others, mortgage debts of every kind. The question whether there is a 'debt' or not is in the exclusive jurisdiction of the Civil Court. If the Court comes to the conclusion that there is no 'debt' in terms of Section 2 (I) (f), 'he matter ends and the Court bas to proceed with the case. If the Court finds that there is a 'debt' only then the question whether a person claiming the relief is a 'debtor' or not arises, But should the Court slay its hands and make a reference under sub-section (2) of Section 2 of the Act if the person only says that he is a 'debtor' ?
7. Now a 'debtor' can be a 'marginal farmer' or a 'landless agricultural labourer' or a 'rural artisan' who is in debt. If he claims to be a 'marginal farmer', he must show, firstly, that be is an agricultural. The word 'agriculturist' having been defined, the person will have to show that he cultivates land personally. Secondly, he has to show that he earns his livelihood mainly by agriculture. Thirdly, he has to show that be holds land not exceeding the one laid down in Clause (k). Since the words 'to hold land' have been defined by Clause (h), he has to show that he is in lawful and actual possession of the land. He may be in possession of land as an owner, tenant or Government lessee but the emphasis is on actual possession which should be lawful. In other words, if a person is not in actual possession lawfully, then it is immaterial whether he is the owner or tenant or a Government lessee of a land which is not in his actual possession lawfully. Thereafter the area of land which is in his actual possession lawfully, should not exceed one hectare of unirrigated or half hectare of irrigated land. If the area exceeds that, then a person cannot claim himself to be a 'marginal farmer'. Of course, if he is in possession of irrigated and unirrigated land, in that case the total area should not exceed the one laid down in proviso to the definition, of 'marginal farmer' by Clause (k).
8. Similarly a person claiming himself to be a 'landless agricultural labourer' has, in terms of the definition, to show, (1) that he does not hold any land which, in view of Clause (h), means that he is not in lawful actual possession of any land as owner, tenant or Government lessee; (2) that his principal means of livelihood is manual labour on agricultural land; or who follows one or more of the agricultural occupations mentioned in Clause (i). Use of the words 'principal means of livelihood' shows that a person may also do work other than that mentioned in Clause (i) but as long as his principal means of livelihood are from work mentioned in Clause (i), he is a 'landless agricultural labourer'. At this stage it may be noticed that there is no need of manual labour on agricultural land round the year. It is a seasonal need. There are periods in the year when, there is no work to be done on the farm. During that period a person may be working as a labourer for any other work. However, it has to be remembered that in case the principal means of livelihood remain manual labour of agricultural lam or on the agricultural occupations mentionet in Clause (i) he will fall under the definition of a 'landless' agricultural labourer' irrespective of the fact that be also makes a living from other work. Of course, if his principal means of livelihood happen to be from work other than that referred in Clause (i), then he will cease to be a 'landless agricultural labourer'.
9. Under Sub-section (2) of Section 2 though there is no provision requiring a Court to refer the question whether a person is a 'marginal farmer' or a 'landless agricultural labourer' etc., it is understood that the Court has to make a reference under Subsection (2) when such a question arises for determination because the decision of the officer mentioned in Sub-section (2) has been made final and conclusive. In other words, it is not for the Court to determine whether a petition is a 'marginal or small farmer' of a 'landless agricultural labourer' or a 'rural artisan'. But then It is the Court which has the jurisdiction to decide whether a question in terms of Sub-section (2) of Section 2 has arisen or not. It is only when the Court decides that such a quettion has arisen that it is bound to make a reference.
10. When does a question arise? It arises when a party alleges a material fact which is denied by the opposite party. In other words, a question under Sub-section (2) will only ante when a party claiming a benefit under this Act raises a question bona fide. For this purpose it Is not enough to simply allege that a person Is a 'marginal farmer' or a 'landless agricultural labourer' or a 'rural artisan'. Indeed these are the conclusions in law which flow from certain facts. It is, therefore, essential for the party to allege the basic facts. It is further necessary that these basic facts should be supported by an affidavit in order to show bona fides. To take an example, for a person claiming to be a 'marginal farmer' it is necessary for him to allege facts showing: (1) that he cultivates land personally; (2) that he is in lawful actual possession of land as an owner, tenant or a Government lessee; (3) that he earns his livelihood mainly from agriculture; (4) full details of all the land he actually possesses lawfully. Similarly for a person claiming himself to be a 'landless agricultural labourer' it is necessary for him to give basic facts which would show that his principal means of livelihood are manual labour on agricultural land of from one or more of the agricultural occupations referred to in Clause. (i). In my opinion the Court has the right, nay the duty, to satisfy itself whether the question in terms of Section 2 (2) of the Act has been failed bona fide at distinguished from a question raised frivolously. In other words, the Court is entitled to hold an inquiry to the extent only of finding out whether a party claiming the benefit of the Act is raising a frivolous or vexatious question or the question has been raised bona fide. The Court has to keep in mind that the final decision on the question is the prerogative of the officer named under Sub-section (2) and not that of the Civil Court. Losing sight of the fact would result in the Court clutching at the jurisdiction vesting in that officer and the Court will be acting without jurisdiction. Neither it is possible nor it is desirable to lay down any hard and fast rules. It will depend on the facts of each case whether the material placed before the Court Is sufficient to show that a bona fide question has arisen.
11. Mehar Singh v. Chuhni Ram, ILR (1977) Him Pra 565 : (AIR 1979 NOC 79), Is a glaring Instance of a frivolous plea and the Court refusing to making a reference tinder Section 2 (2) merely on the ipse dixit of a party. In that case the defendant made an application claiming that he was a 'landless agricultural labourer' and so the suit should abate in terms of Section 3 of the Act. The trial Court found that the defendant was a full time employee of the Defence Department and, therefore, refused to make a reference. The defendant came up in revision to this Court. While holding that the jurisdiction to decide the question belongs exclusively to an officer not below the rank of Tehsildar duly appointed by the State Government in that behalf and that this decision on the question is final and conclusive and cannot be called in question in any Civil Court, this Court held:
'But in order to invoke Section 2 (2) it must be shown that a question arises. That means, a point which can be said to raise a controversy or debate. If ex facie no question arises, because admittedly between the parties the defendant carries on a vocation which clearly excludes him from the definition of the expression 'landies' agricultural labourer' plainly Section 2 (2) of the Act cannot be invoked. The statute does not contemplate frivolous or meaningless applications.'
12. In Gopal Singh v. Kanwar Singh ILR (1976) Him Pra 295, it was ruled:
'There is no doubt that the trial Court has Jurisdiction to refer the question, but before any reference can be made it must be satisfied that the question envisaged in that clause does arise. The trial Court will examine the material on the record for that purpose. There must be a clear pleading by the party claiming the benefit of the Ordinance (Himachal Pradesh Relief of Agricultural Indebtedness Ordinance, 1975, which was later on enacted as the present Act) that he is a marginal farmer, a landless agricultural labourer or a rural artisan. It is only if there Is a specific pleading to that effect that it can be said that the party has alleged that he is a debtor within the meaning of the Ordinance. If is not sufficient for a party to plead merely that he is a debtor. A pleading to that effect it meaningless. There is no burden cast on the Court to investigate and determine which one of the three categories comprehended within the definition of debtor is attracted in the particular case.'
13. Again in Jai Krishan v. Bhajan Dasi, ILR (1976) Him Pra 844, it was reiterated that it was for the defendant to raise a specific pleading to enable the Court to apply its mind to the question whether a reference should be made under Section 2 (2) of the Act.
14. A contention has been raised that Sub-section (2) of Section 2 leaves a discretion to the Court to refer or not to refer the question for the decision of the officer referred to in this sub-section. It is suggested that the word 'shall' should be read at 'may', I am not impressed at all with this contention. The frame of (he section leave no doubt that the decision of the question whether a person is a 'marginal or small farmer' on a 'landless agricultural laboureu' of a 'rural artisan' has been left to the decision of an officer not below the rank of a Tehsildar who is duly appointed by the State Government fop this purpose. The reason for leaving this question to a Revenue Officer is not fat to teek. The Legislature was aware of the existence of the Revenue Court at distinguished from Civil Courts. Sub-section (2) of Section 5 of the Civil P. C. defines a Revenue Court having jurisdiction under any local law to entertain suits or other proceeding relating to the rent, revenue or profits of land used fop agricultural purposes. In other word, the Revenue Officers were well versed with various questions relating to agricultural land. It was known to the Legislature that the farmers have been in debt over the ages because of the poor returns from the land and other causes. They were heavily under debts of money lenders and the result was that whatever they produced by their sweat and tears was mopped up by the money lenders. Here were the persons who were the tillers of the land and depending upon the vagaries of nature to eke out a sustenance, There were the money lenders who had been able to comet the money, the present day power, and to create circumstances where a poor farmer on spite of his best efforts would never be able to get out of the clutches of the money lenders. Social justice demanded that these farmers should be freed from this iniquitous burden. It has been done by the present Act. At this stage the statement of objects and reasons which was given foe the bill's seeking to replace the old Ordinance with tome modifications may be read:
'The 20 point Programme announced by the Prime Minister contemplates, inter alia, liquidation of rural indebtedness by stages to benefit landless labourers, rural artisans, marginal and small farmers. In pursuance of this programme, the Government decided to liquidate the debts of landless agricultural labourers, rural artisans and marginal farmers and place a moratorium on the debts of small farmers for a period of one year with an enabling provision to extend the moratorium for a further period of one year. The Govern of of Himachal Pradesh therefore, promulgated the Himachal Pradesh Relief of Agricultural Indebtedness Ordinance, 1975, on 12th Nov., 1975.
It was further decided to scale down the debts of small farmers. Therefore, the provisions to this effect were necessary which have been made in this Bill in addition to the provisions contained in the Ordinance which is to be replaced by permanent legislation,'
15. The language used in Sub-section (2) is imperative and leaves no doubt that the decision on the question has to be by the officer mentioned in that section and not by a Civil, Court. I am also not impressed by the contention that since Section 18 it a specific bar to suits and proceedings and execution of decrees inn civil or revenue Courts in respect of a 'small farmer', Section 2 (2) Is not mandatory. It may be noticed that Section 18 appears in Chapter V which is for 'scaling down of debts of small farmers'. It may also be noticed that there is a provision for appeal in Section 20 whereas no such provision hat been made in respect of Chapter II which relate to 'liquidation of certain debts' of a 'debtor', Moreover, the definition of the word 'debtor' does not include a 'small farmer'. Though two separate detailed provisions have been made for the two classes, that is 'small farmers', and those who fall under definition' of 'debtor', yet there is nothing to show that the decision of the question whether a person is a 'marginal or small farmer-' or a 'landless agricultural labourer' OB a 'rural artisan' has been left to Civil Courts. Whether the debts of a 'small farmer' have to be scaled down or the debts of others have to be liquidated, would not, in my opinion, make any difference to the question with which I am concerned. The question given by the Full Bench of the Gujarat High Court in Taraben Ramanlal Modi v. Jashbhal Shankerbhai bin Talsibhal, AIR 1980 Guj 126, is of no help for the purpose of interpreting the present Act because evidently the Gujarat Act materially differs from the Act promulgated at this State.
16. Now It must be remembered that under- Section 3 only those debts stand liquidated which were oustanding on the requisite date that is, 13th Nov., 1975. Of course, the debt would include the amount of interest which may have become due by that date. In other words, if there is a 'debt' and a 'debtor' in terms of this Act, only then those debts will stand liquidated Under Section 3 which were outstanding on 13th Nov., 1975. It is needless to add that any debt which might have been incurred after the appointed day and remains outstanding is not affected by this Act.
17. Another question raised is: Whether a time barred debt will also be liquidated It need not be emphasised that the provisions of Limitation Act only destroy the remedy but not the right (Bhajja v. Mohammad Said Khan, AIR 1932 All 543 and Raja Ram v. Lakshmi Narain, AIR 1958 All 149). In other words, a right continues to exist though the remedy is barred. For example, no suit can be instituted for the recovery of a time barred debt but a time barred debt can be a good consideration under the Contract Act. Moreover, if the debtor makes any payment to the creditor without specifying the debt, the creditor has a right to adjust the payment against a time barred debt. Therefore, what Section 3 does is that it liquidates the outstanding debt whether it is time barred or not. In other words, it destroys the right of a creditor.
18. I need hardly add that since the debt outstanding on the appointed day is affected Under Section 3, therefore, the crucial date for determination of the question whether a person is a 'debtor' or not has to be the appointed day, that is, 13th Nov., 1975. It may happen that a person who may be a 'marginal farmer' to begin with, may on 13th Nov., 1975 cease to be a 'marginal farmer' and an erstwhile big landlord may come to be a 'marginal farmer' or a 'landless agricultural labourer' on the appointed day. Similarly we are not concerned with any period after the appointed day. It may come to pass that a person who is a 'marginal farmer' or a 'landless agricultural labourer' on the appointed day may cease to be so on any other day thereafter. All this has to be ignored since it is irrelevant for giving relief Under Section 3.
19. I will now deal with individual cases in the light of the above discussion, C. Rule 221 of 1980.
20. In this case a suit for recovery of Rs. 6,180/- was filed on 11th Sept., 1973. On 26th Sept., 1973, property of the defendant was attached. Thereafter on 4th Nov., 1976 an application was made by the defendant claiming himself to be a 'marginal farmer'. The plaintiff denied that the defendant was a 'marginal farmer'. The Court made a reference Under Section 2 (2) of the Act to the Tehsildar for determining the question. The plaintiff has now come up in revision.
21. I have gone through the application made by the defendant. The defendant has not given any facts which would prima facie show that the defendant is entitled to the benefit Under Section 3 of the Act. The trial Court was not, therefore, justified in referring the matter Under Section 2 (2) of the Act in routine. The impugned order is, therefore, quashed and scl aside. However, the defendant will be at liberty to make a fresh application and the Court will then proceed in the matter in the light of this judgment. There will be no order as to costs. C. R. No. 107 of 1978.
22. In this case the plaintiff filed a suit for a declaration that he is entitled to the possession of the agricultural land. The defendant resisted the suit and, inter alia claimed benefit of Section 3 of the Act. The trial Court framed the issue: 'Whether the suit cannot proceed as alleged in the written statement and in view of the provisions of Act No. 17 of 1976.' The parties were asked to lead evidence. Evidence was led. A copy of the jamabandi was filed by the plaintiff. The defendant filed his affidavit as well as the affidavit of others and also appended a copy of the jamabandi. The Court proceeded to determine the question on the basis of the evidence produced before it and decided that the defendant was not a 'marginal farmer.'
23. It may be noticed that the plaintiff alleged making an advance of Rs. 4,000/- on 3rd Oct., 1975 and another advance of Rs. 1,000/- on 18th June, 1976. The agreement for mortgaging the land as security to this amount of Rs. 5,000/- was executed on 23rd March, 1976. The reason was that the land of the defendant was already under mortgage and he was required to redeem that land with the help of the money advanced to him and to mortgage the same land with the plaintiff.
24. It is conceded before me by the parties that on the appointed day, that is, 13th Nov., 1975, the defendant was only in actual possession of 3 bighas and 2 biswas of land. Therefore, the defendant made a prima facie claim of being a 'marginal farmer'.
25. Rs. 4,000/- advanced to the defendant was nothing but a debt. The amount advanced was required to be paid back and the agreement to mortgage the land was only for a collateral security for the amount advanced. By no stretch of imagination it can be laid that Rs. 4,000/- advanced to the defendant on 3rd Oct., 1975, that is, before the appoint ed day, was not a debt. Therefore, in this case there being a 'debt' and the defendant having laid the foundation for bona fide claiming himself to be a 'marginal farmer', a question has arisen for decision whether the defendant was a 'marginal farmer' and it should have been referred Under Section 2 (2) of the Act, and the Court had no jurisdiction to appreciate the evidence produced by the parties and decide that the defendant was not a 'marginal farmer'. It may be repeated that as long as there is a bona fide dispute on the question whether the defendant is a 'marginal or small farmer', or a 'landless agricultural labourer' or a 'rural artisan' a reference has to be made unless on the very face of it the question raised is frivolous.
26. The revision is, therefore, accepted and the impugned order is hereby set aside. The Court is directed to make a reference Under Section 2 (2) of the Act. It is clarified that in case the decision by the Tehsildar is that the defendant is a 'marginal farmer', the suit will abate only in respect of Rs. 4,000/-which was the outstanding debt on the appointed day. The amount of Rs. 1,000/-allegedly advanced to the defendant after that date will not be affected by that decision and the Court will proceed further with the suit as regards the question of advancement of Rs. 1,000/- and decide the case on its merits. There will be no order as to costs. C. R. No. 174 of 1978.
27. In this case the defendant moved an application staling that he was a 'marginal farmer'. He produced a copy of the jama-bandi. The plaintiff contested. He also produced a copy of the jamabandi. Both these copies of the revenue record were contrary to each other. Now what the trial court did was that it started recording evidence to find out the area of land in occupation of the defendant. After recording the evidence the court held that there was no prima facie case which justified a reference to the Tehsildar Under Section 2 (2) of the Act.
28. Once the defendant had produced a certified copy of the jamabandi showing total area of land in his actual possession being less than one hectare of unirrigated land, he had made out a prima facie case. It was the duty of the court to make a reference Under Section 2 (2) of the Act. It was for the Tehsildar to go into the matter and find out what the true facts were. This job of the Tehsildar could not be done by the court Whether a party has been able to produce sufficient and credit-worthy evidence to prove his stand is to be decided by the Tehsildar and not by the court. Otherwise there is nothing left for the Tehsildar to do. The defendant having showed a prima facie case the reference should have been made.
29. The revision is, therefore, accepted, the impugned order is hereby set aside and the Court is directed to make a reference Under Section 2 (2) of the Act and thereafter to proceed according to law. There will bo no order as to costs.
C. R. No. 120 of 1972.
30. I need not go into the facts in this case. It is conceded before me that the debt in question was insured by the defendant after the appointed day. Therefore, there is no question of any reference being made Under Section 2 (2) of the Act. The impugned order making a reference is hereby quashed and set aside. The Court is directed to proceed according to law with the suit. C. R. No. 230 of 1980.
31. I need not go into the facts in detail. Suffice to say that the defendant had claimed himself to be a 'landless agricultural labourer'. Reference was made Under Section 2 T2) of the Act. The Tehsildar returned a finding that the defendant was a 'landless agricultural labourer'. The suit, therefore, abated Under Section 3 of the Act. The plaintiff-petitioner now challenges the finding and, states that the Tehsildar was wrong in coming to his conclusion which he arrived at. In this connection Mr. H.K. Bhardwaj refers to the evidence in order to show that the finding given by the Tehsildar was incorrect. The Tehsildar after appreciating the evidence produced before him decided the question referred to him. His decision being final and conclusive cannot be challenged now. The revision is, therefore dismissed with costs.