# Nldu'ftllri Kttmaroorammt v. s.,,,,,1111 S•bl>a Ru

- **Citation:** [1963] 2 S.C.R. 226
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** B. P. Sinha, P. B. Gajendraoadkab, K. N. Wanchoo, N. Rajagopala Ayyangar, T. L VENKA.TARA...'llA AIYAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nldu-ftllri-kttmaroorammt-v-s-1111-s-bl-a-ru-2678
- **Pages:** 17

## Headnote

Landlord and Tenant-Rem-Enactment providing for
jixaticm of ma:r:imum rent - COMtitulional validity-Notijicalion
ai:r:ing atandard rent-Validity-Bombay Tenanc.~ and ,,ipncultural Landa Act, 1918 ( Bom. 67 of 1948), a. 6-M ysore TeMn·
cy Act,.1952 (Myaore 13 of 1952), as. 6(1112), 12-CO'Mlitutimi
of India, Art. U,19(1) (fl, 26,31,31A.
The Mysore Tenancy Act, 1952, was enacted, inter alia,
for the purpose of regulating the law which governed the
relations of landlords and tenants of agricultural lands. Subsection (I) of s. 6 of the Act provided: "Notwithstanding
any agreement, usage, decree or order of a court or any law,
the maximum rent payable in respect of any period ...... by
a tenant for the lease of any land shall not exceed one-half
of the crop or crops raised on such land or its value
as determined in the prescribed manner". "The Government
may, by notification in the Mysore Gazette, fix a lower rate
of the maximum rent payable by the tenantS of lands situate
in any particular area or may fix such rate on any other
suitable basis as they think fit".
In exercise of the Power.
...,
conferred by s.6(2), the Government of Mysore issued a •
notification purporting to fix the standard rent for
land
2 S.C.R.
SUPREME COURT l'tEp(IRTS
227
specified in Sch. I which dealt with Maidan areas i. e., lands
on· the plains at one third of the produce, and. for those
specified in Sch.II which .dealt with Malnad areas 1, e., lands
on hilly tracts at one fou· ;h.
.
The appellant who owned garden land in the district of
Shimoga in Mysore State and who had 'leased out the land to
a tenant, challenged the validity or s.6(2) of the Act as well as
the notification on the grounds that they contravened Arts. 14,
19'1) (f), 26, 31 and 31A of the Constitution of India, and
that, in any case, the notification was inconsistent with s. 6( t)
inasmuch as it was based on s. 6(2) which bein<t an exception
to s. 6( I) could not be allowed to swallow up the general rule
and tliat was precisely what the notification purported to do.
The Mysore Tenancy Act was modelled on the pattern of the
Bombay Tcnancv and Agricultural Lands Act, 1948, and the
provisions of s.6 of the Mysore Act were •imilar to s.6 of the
Bombay Act.
In Vaaantlal
Maganbhni San,ianwala
v.
The State
of
Bomba.,, (1961]
I. S. C. R. 341 ; it
was
held that s. 6 of the
Bombay Act wa•
vaild.
The
appellant contended that the aforesaid decision was
not
applicable bccaust'! there were rlifferencec; • bt'!tween the twO
Acts inasmuch as ( l) in the preamble to the Bombay Act it
was stated that it was passed inter alia for the purpose of
improving the economic and socia1 conditions of peasants and
this was not mentioned in the Mysore Act, (2\
unlike
the
Mysore Act,
the Bombay Act, made a distinCtion
between the irrigated and non·irrigated land {3) the Bombay
Act while prescribini: a maximum took
the precaution
of also prescribing a minimum and the absence of the latter
provision in the Mysore Act made a material difference.
Held, that: (I) the Mysore Tenancy Act, 1952, was
substantially similar to Bombay Tenancv and
Agricultural
Lands Act, 1948, and that the question as to be whether
s. 6 (2) of the Mvsore Act was valid must be held ti> be covered
by the decision the Vasanllal Ma.ganbhai Sanjanwala v. The
Stat. of Bo..,.bay [1961] I S. C.R. 341. Accordingly, s.6(2) of
the Mysore Ter.ancy Act, 1952, was valid.
·
(2) on its true construction, s. 6(1) of the Mysore
Tenancy Act, 19~2. wa• intended to apply to all agricultural
leases until a notification was issued under 9'6(2\ in respect
of the areas where the lea••d lands might be situated ; s 6(2)
~ could not, therefore, be considered as an exception to s.6(1).
Consequently, the notification in question was valid.
Ba,hulhilakathirlhG
Paclat galavaru
Swamiji
v •
Thi Slat1 of M_,,.,,
19~2
Roghulhilakathirllur
l'oi••ga/a1Jtull
Su:ramiji
v.
Thi Stall of M,sOTt
228
SUPREME OOURT REPORTS (1963]
Macbeth v. Aahky, (1874) L.R. 2 Sc, App. 352, considered and held

## Text

1961
Nldu'ftllri
Kttmaroorammt
Y.
s.,,,,,1111 S•bl>a Ru
Hid..,.,.i/d J.
Ifft
226
SUPREME COURT REPORTS [1963]
service inam Wal! correct in tho circumstances of the
caBe, and the High Court was not justified in revel'lling it.
The appeal is, therefore, allowed, the judgment
of the High Court set a.side, and that of the lower
Court restored, with costs throughout.
A ppw.l allowe.d.
SREE RAGHUTHILAKATHIRTHA
SREEPADANGALAVARU SWAMIJI
v.
THE STATE OF MYSORE AND OTHERS
(B. P. SINHA, c. J., P. B. GAJENDRAOADKAB, K. N.
WANCHOO, N. RAJAGOPALA AYYANGAR and
T. L VENKA.TARA...'llA AIYAR, JJ.)
Landlord and Tenant-Rem-Enactment providing for
jixaticm of ma:r:imum rent - COMtitulional validity-Notijicalion
ai:r:ing atandard rent-Validity-Bombay Tenanc.~ and ,,ipncultural Landa Act, 1918 ( Bom. 67 of 1948), a. 6-M ysore TeMn·
cy Act,.1952 (Myaore 13 of 1952), as. 6(1112), 12-CO'Mlitutimi
of India, Art. U,19(1) (fl, 26,31,31A.
The Mysore Tenancy Act, 1952, was enacted, inter alia,
for the purpose of regulating the law which governed the
relations of landlords and tenants of agricultural lands. Subsection (I) of s. 6 of the Act provided: "Notwithstanding
any agreement, usage, decree or order of a court or any law,
the maximum rent payable in respect of any period ...... by
a tenant for the lease of any land shall not exceed one-half
of the crop or crops raised on such land or its value
as determined in the prescribed manner". "The Government
may, by notification in the Mysore Gazette, fix a lower rate
of the maximum rent payable by the tenantS of lands situate
in any particular area or may fix such rate on any other
suitable basis as they think fit".
In exercise of the Power.
...,
conferred by s.6(2), the Government of Mysore issued a •
notification purporting to fix the standard rent for
land
2 S.C.R.
SUPREME COURT l'tEp(IRTS
227
specified in Sch. I which dealt with Maidan areas i. e., lands
on· the plains at one third of the produce, and. for those
specified in Sch.II which .dealt with Malnad areas 1, e., lands
on hilly tracts at one fou· ;h.
.
The appellant who owned garden land in the district of
Shimoga in Mysore State and who had 'leased out the land to
a tenant, challenged the validity or s.6(2) of the Act as well as
the notification on the grounds that they contravened Arts. 14,
19'1) (f), 26, 31 and 31A of the Constitution of India, and
that, in any case, the notification was inconsistent with s. 6( t)
inasmuch as it was based on s. 6(2) which bein<t an exception
to s. 6( I) could not be allowed to swallow up the general rule
and tliat was precisely what the notification purported to do.
The Mysore Tenancy Act was modelled on the pattern of the
Bombay Tcnancv and Agricultural Lands Act, 1948, and the
provisions of s.6 of the Mysore Act were •imilar to s.6 of the
Bombay Act.
In Vaaantlal
Maganbhni San,ianwala
v.
The State
of
Bomba.,, (1961]
I. S. C. R. 341 ; it
was
held that s. 6 of the
Bombay Act wa•
vaild.
The
appellant contended that the aforesaid decision was
not
applicable bccaust'! there were rlifferencec; • bt'!tween the twO
Acts inasmuch as ( l) in the preamble to the Bombay Act it
was stated that it was passed inter alia for the purpose of
improving the economic and socia1 conditions of peasants and
this was not mentioned in the Mysore Act, (2\
unlike
the
Mysore Act,
the Bombay Act, made a distinCtion
between the irrigated and non·irrigated land {3) the Bombay
Act while prescribini: a maximum took
the precaution
of also prescribing a minimum and the absence of the latter
provision in the Mysore Act made a material difference.
Held, that: (I) the Mysore Tenancy Act, 1952, was
substantially similar to Bombay Tenancv and
Agricultural
Lands Act, 1948, and that the question as to be whether
s. 6 (2) of the Mvsore Act was valid must be held ti> be covered
by the decision the Vasanllal Ma.ganbhai Sanjanwala v. The
Stat. of Bo..,.bay [1961] I S. C.R. 341. Accordingly, s.6(2) of
the Mysore Ter.ancy Act, 1952, was valid.
·
(2) on its true construction, s. 6(1) of the Mysore
Tenancy Act, 19~2. wa• intended to apply to all agricultural
leases until a notification was issued under 9'6(2\ in respect
of the areas where the lea••d lands might be situated ; s 6(2)
~ could not, therefore, be considered as an exception to s.6(1).
Consequently, the notification in question was valid.
Ba,hulhilakathirlhG
Paclat galavaru
Swamiji
v •
Thi Slat1 of M_,,.,,
19~2
Roghulhilakathirllur
l'oi••ga/a1Jtull
Su:ramiji
v.
Thi Stall of M,sOTt
228
SUPREME OOURT REPORTS (1963]
Macbeth v. Aahky, (1874) L.R. 2 Sc, App. 352, considered and held inapplicable.
Civu. APPELLATE JURISDICTION : Civil Appeal
No. 537 of 1960.
Appeal from tho judgment a.nd order dated
December 23,
I 959, of the Mysore High Court in
Writ Petition No, 229of1955.
S. S. Shukla and E. Udayarathnam, for the
appellant.
H. N. Sanyal, Additional Solicitor-General of
India, R. Gopalakrislman and P. D. Menon, for the
respondents Nos. 1 and 2.
R. Gopalakrishnan, for respondent No. 3
1962. April 18. The Judgment of the Court
was delivered by
GAJENDRAGADKAR, J.-This appeal
arises
from a writ petition filed by the appellant, Raghu·
tilaka Tirtha Sripadanga.lavaru Swo.miji, in the
Mysore High Court challenging th1.1 validity of s. 6
(2) of the Mysore Tenancy Act, 1952 (XIII of 1952)
hereafter oalled the Act, and the notification issued
under the ea.id section on March 31, 1952.
The appellant's case as set out in his writ
petition before the High Court was that the impugned section as well as the notification issued under
•' '
it infrin~ed his fundamental rights guaranteed under
'
Arts. 14, J9 (1) (f), 26, 31 and 31A of the Constitution. This con ten ti on has bePn rejected by the
High Court and it has been hold that the section
and the notification under challenge are valid and
I
constitutional. The appellant then applied for a
•-
certificate from the High Court, both under Art. 132
and Art. 133 of the Constitution. The High
._~
Court granted him a certificate under Art. 133, but
refused to certify th\) ca.so under Art. 132. There
...
2 S.C.R.
SUPREME COURT REPORTS
229
after the appellant applied to this Court for liberty
to raise a question ab'>Ut the interpretation of the
Constitution and permission has been accorded to
the appellant accordingly.
That is how the present appeal has come to this Court.
The appellant owns 6 acres and 30 ghuntas
of garden land in
village Mulba.gilu in Taluka
Thirthahalli in the district of ShimogJt. Respond·
ant No. 3, Ramappa, Gowda, is his tenant in respect
of this land. A registered lease deed was executed
in favour of respondent No. 3 by the appellant on
March 11, 1943; under this document respondent
No. 3 undertook to pay 82-1/2 maunds of areca in
addition to Rs. l 7/12-in cash as rent per year. In
1955 ,respondent No. a filed an application before
respondent No. 2, the Tehsildar of Thirthahalli,
under section 12 of the Act and claimed that the
standard rent payable by him to the appellant
should be fix:ed (Tenancy case 85 of 1955-56).
Meanwhile respondent No. l, the Government of
Mysore, had, in ex:ercise of the powers conferred on
it by s. 6 of the Act, issued a notification No.
R9. 10720/L. S. 73.54 2 on March 28/29, 1955. This
notification purported to fix: the standard rent for
lands of the category to which the appellants land
belongs at one third of the produce.
Feeling aggri·
eved by this notification the appellant filed the
present writ petition in the High Court on December 16, 1955, His case was thats. 6 (2) as well as
the ndtification issued under it were ultra vires,
invalid and inoperative.
Before dealing with the contentions raised
before us by Mr. Shukla on behalf of the appellant
it would be necessary to consider very briefly the
scheme of the Act.
The Act has ·been passed by
the Mysore Legislature bec!tuse it was thought
necessary to regulate the law which . governs the
relations of landlords and tenants of agricultural
lands and to regulate and impose restrictions on the
1962
'Raghuth;loknlhirth a
Padangatav~ru
Swamiji
v.
Tht State of Afysore
Gajendra1adltar J.
1962
id1lt11ll1ilakatltirtha
l'od<1ntal.,a4t'V
Sw3111iji
••
Tlt1 Sia-. of M)60t1
Gijtndragad~r J.
Ji30
SUPREME COUhT REPORTS [1963)
transfer of agricultural lands, dwelling houses, sites
and lands appurtenant thereto belonging to or
occupied by
agr~oul.turists in the State of Mysore
e:icoe~t Bellary DIBtnct and to make provisions for
oertam o•her purposes appearing in the Act.
That
is the recital contained in the preamble to the Aot.
It would ~hue be seen that the primary objeot of
the Act 18 to afford much needed relief to the
agricultural tenants by regulating their relations
with their landlords and in that respect the Aot
bears a very close resemblance to the provisions
of the Bombay Teaanoy and Agricultural Lands Act,
LXVH of 1948. Indeed, the material provisions
of the Act with which we are concerned are substantially similar.
'
.
Chapter I of the Act deals with the preliminary
topic of defining the relevant terms used in the Act.
Chapter II contains general provisions regarding
tenancies. Section 4 defines persons who are deemed to be tenants. Section 5 provides that no
tenanoy would be for Iese than five years. iSeotion
6 deals with the maximum rent payable by the
tenants. 8eotion S provides for the oaloulation of
rent payable in kind in the manner indicated by els.
(i)' and (ii) and prohi)>its the landlord from reoover-
'-<-·
ing or receiving rent caloulated in any other manner.
Under s. II receipt of rent in terms of service or
labour is prohibited.
Section
11 abolishes all
casea and e. 10 enables the tenants to claim a
refund of rent which haa been recovered in contravention of the provisions of the Act. Section I:! then
deals with enquiries with regard to reasonable .rent.
8ub-section (3) of s. 12 lays down five factors which
have to be borne in mind by the authority dealing
with an application for the fixation of reaaonable
rent. Section 13 is a corollary of s. 12 and authorises the reduction of rent after reasonable rent has
been determined under e. 12.
Section 14 deals _.
with suspensions or remission of rent. Section 15
•
-
2 S.C.R.
SUPREME COURT REPO.t<:fS
231
provides for termination of tenancy.
Under s. 18
a statutory bar is created against the eviction of a
tenant from a dwelling house and under s. 19 the
tenant has the first option of purchasing the site
on which he has built a dwelling house. Similarly,
under s. 22 the tenant is given an option of purchasing the land leased out to him. tjection 24 deals
with some ca;es where relief can be granted against
termination of tenancy aud s. 25 with relief against
termination of tenancy for non-payment of rent.
Section 30 provides for the procedure to recover
rent and s. 31 protects the tenants' rights under
any other law. Chapter III deals with the proced·
ure and jurisdiction of Amildar and provides for
appeals against the decisions of the Amildar.
Chapter IV deals with offences and prescribes pen·
alties for them and Chapter V contains miscellaneous provisions. That, in its broad outlines, is the
nature of the provisions made by the Act in order
to give relief to the agricultural tenants.
Section 6 with which we are directly conce1··
ned in the present appeal reads thus:-
"6. (l) Notwithstanding any agreement,
usage, decree or order of a court or any law,
the maximum rent payable in respect of any
period after the date of coming into force
of this Act by a tenant for the lease of any
land shall not exceed one-half of the crop or
crops raised on such land or its value as
determined in the prescribed manner :
Provided that where the tenant does not
cultivate the land the rent payable shall be
the reasonable rent to be fixed by the
Amildar.
(2) The Government may, by notification
in the Mysore Gazette, fix a lower rate of the
maximum rent payable by the tenants of lands
1"62
Rugltut•(ilakatl1irtl1a
Pada1.gal vatU
SwtJrni}i
v.
The State of Myu1r
Gojendraladk'lr J •
1962
ll aghu 1 hiJako th ir lha
Pada r.gaf<zt'aru
Swanli;i
'·
fh1 Stale of M;·Jor1
Gqjendraiadkur J,
232
SUl'~J<;lllli OOURT REPORTS [1963]
situate in any particular area or may fix such
rate on any other suita.hle basis as they think
fit."
As we have already indicated, the provisions of
the two sub-clauses of s. 6 a.re substantially similar
to the provisions of s. 6( I) and (2) of the corres·
ponding Bombay Act. Indeed, it would be correct
to say that Act with which we a.re concerned has
been modelled on tho pattern of tho Bombay Act
and has adopted most of its important provisions.
The validity of s. 6 of the Bombay Act was
challenged before this Court in "V asantal M aganbhai
Sanjanwala v. The State of .&nnbay (1)" and it
has been held that the said section is valid. The
reasons given by this Court in upholding the
validity of s. 6 of the Bombay Act apply with equal
force in support of the validity of s. 6 of the Mysore
Act and so the point raised by the appellant in
challenging the validity of the impugned section is
really covered by the earlier decision of this Court.
Mr. Shukla., however, contends that
the
preamble to the Act differs from the prc&mble of the
Bombay Act inasmuch as the latter preamble refers
to the ia.ot that that Act was passed int,er alia for the
purpose of improving the economic and social
conditions of peasants and ensuring the full and
effioient use of land for agriculture and so considerations of social justice on which the validity of the
corresponding provision of tho Bombay Act was
sought to be sustained cannot be invo.ked in dealing
with the proaent appeal. We a.re not impressed by
this argument. It is true that the preamble to the
Act merely says that the Act was passed because it
was though necessary to regulate the law which
governs the relations of landlords and tenants of
agricultural lands and it does not refer to the
requirement of social justice or doea not specifically c'
mention the object of ensuring the full and efficient
...
.L
~.
(I) [1961] 1 S.C.R. 341.
-,_._
'
2 S.C.R.
SUPREME COURT REPORTS
233
use of land for agriculture. But in dealing with a
law which has been paBBed for the purpose of effecting an agrarian reform it woulJ be pedantic to
ignore the essential basis of its material provisions
merely on the ground that the concept of. social
justice on which the said provisions are based has
not been expressly stated to be one of the objects
of the Act in the preamble. .We have already
examined briefly the broad scheme of the Act and
it is obvious that the important provisions of the
Act are intended to improve the economic and
social conditions of the agricultural tenants and so
the policy of social justice can be safely said to be
writ, large on the face of the Act. Therefore, we
do not think that the argument based upon the
fact that the preamble does not ·refer to social
justice distinguishes s. 6 of the Act from the
corre1ponding section of the Bombay Act.
· Then it is urged that unlike the Mysore Act,
the Bombay Act has distinguished between irrigated
land and non-irrigated land and has provided by
s. 6(1) that the maximum rent payable in the case
of irrigated land shall not exceed one-forth and in
the case of other lands shall not exceed one-third
of the crop of such land or its value as determined
in the prescribed manner. It is true that s. 6(1) of
the Act makes no such distinction between irrigated
and non-irrigated lands. But that, in our opinion,
is not a matter of eBBential importance. Like s. 6( 1)
of the Bombay Act s. 6( I) of the Act also intends
to provide for a maximum ceiling beyond which
agr1cultural rent will not be allowed to soar and
so far as the fixation of a maximum ceiling of rent
is concerned it is not eSBential that a distinction
must necessarily be made between irrigated lands
and non-irrigated lands. It must be borne in mind
that 1what the section does is to prescribe the maximum and not to provide for a minimum, In pres·
oribing a maximum it may be open to the Legislature to provide for a maximum which would be
1912
, Roghuthilakothirtha
Padangalovmu
Swamiji
..
The S'ote oj~ MJS'iM
Gajendrag~dkar J.
1961
Re,IMllilokathirtM
Patkngolovoru
Sw 0miji
••
Tiu Stirk of Mysore
Gaj.nbo1.dltar J.
234
SUPREME COURT REPORTS (1003J
common to a.11 la.nds whether irrigated or not That
is why we are not inclined to a.tta.ch any importance
to the point tha.t in the absence of classification of
la.nd, while prescribing a maximum s. 6(1) suffers
from a.ny infirmity.
Then it is argued that the Bombay Act while
prescribing a. maximum has ta.ken the precaution
of a.lso prescribing a minimum a.nd the absence of
the latter provision makes a. material difference.
This argument is clearly mi•coneeivod. It is true
tha.t s. 8 of the Bombay Act which ha.d been insert·
ed by the Bombay Legislature in 1956 did provide
for the maximum and the minimum rent, but a.s the
decision of this Court in the case of Sanjanwala ( 1)
shows in upholding the validity of the impugned
provision of the Bombay Act no reliance was placed
upon the fixation of the minimum rent.
Indeed,
the minimum rent was fixed subsequent to the
decision of the High Court which was under appeal
before thill Court in that ca.se and the fact tha.t a
minimum had been prescribed subsequently has
been only incidentally mentioned in the judgment.
'.rherefore the absence of a provision fixing the
minimum rent docs not introduce .i.ny infirmity in
the impugned provision. \Ve are, therefore, satisfied
that the case of tho impugned section is substantial·
ly similar to the case of s. 6 of the Bombay Aot
with which this Court W«S concerned in the case of
Sanjanwala {I) and the oha.llenge to the validity of
section in thu present appeal must, therefore, be
held to be covered by the said decision.
....... .#).~ .
That takes us to the question as to whether
the impugned notification is in valid.
This notifica·
tion has been issued in exercise of the powers
conferred on the State Government by s. 6( :!) and
it provides that th" rate of maximum rent payable
by the tenants of lands situated in the areas specified in Schedule I and Schedule I I to the notification ..i
(IJ [1961] I S.C.R.. 341.
'<--
'
2 S.C.R.
SUPREME COURT REl'ORTS
235
shall be one-third and one-fourth respectively of
the crop or crops raised on such lands with effect
from the year commencing on April 1, .1955.
Schedule I deals with Maidan areas in which the
maximum. rent or rents shall be one-third of the
crop or crops and ochedule II deals with Malanad
areas in which the maximum rate of rent shall be
one-fourth of the crop or crops raised.
It appear'!' that the classification of lands
between Maidan an Malanad lands is well known
in Mysore.
Maidan lands are lands on the plains,
whereas Malanad are lands on hilly trac.ts. The
distinction between the two categories of lands
takes into aocount the different condition~· of rain
fa.II, the dilferent nature of the cultivation, the
difference in the living conditions and the avail·
ability of labour and the difference in the quantity
and the quality of the produce. It i~ true that the
notification does not prescribe the lower rate of the
maximum rent area by area in the sense of dist.riot
by district, but it purports to prescribe the .said
maximum· by classifying the' land in the whole of
the State in the two well-known categories of
Maida.n and Mal11J1ad lands.
It is urged by Mr. Shukla that the impugned
notification is invalid, because it is inconsistent with
the provisions of s. 6( 1). The argument is that
s. 6( 1) lays down a general rule and s. 6(2) provides
for an exception to the said genf'ral rule. On that
~
a&umption it is contended that an exception cannot
be allowed to swallow up the general rule and that
is precisely what the notification purports to do.
'l'his argument is based on the decision of the House
of Lords in Macbeth v. ·Ashley ('). It would be
noticed that this argument raises the question ·
about the construction of the two sub.clauses of ~.6.
\. Before addressing ourselves to that question,
(I) (1874] L.R. 2 Sc. App, 352.
1962
RogJiulhilalc<1thi1tha
Padangalavaf'u
Sw,mi/i
v.
Thi State of Myaere
Qqjentlragallf.ar J.
1116t
Hol·l11.11hilakr. tJii,1!1'J
l'od.t1g't/av. r"
Su· ,,,,1;
v,
Tie S11.tt vf Jl)sore
(," ~jr111/ n.~adlcr.r .J,
:1;m
Sl'l-RE.ME COl RT REl'OHTIS [lllti3J
h•Jwover. we m:i.y rnfer to the cloici~ioa of tb.o Hotl'lo
of Lords on which tae argument is based.
It appears that I I o'clock at night was the
hour appointed for closing public-houses in Scotland,
although in Bpecia.I cases, and for well considered
reasons, a deviation was allowed with reference to
any particular locality really requiring it.
The
lllagistrates of Rothesay had ordered for closing
at 10 instead of I l and the effeot of the order was
that it embraced every public-house in the burgh.
The House of Lords held that the Magistrates order
was ulti"a vires.
The statutory provision with which
the House of Lords was concerned was contained
in the Act of Parli&ment, 25 and 21) Viet. c. 35.
As
a result of these provisions I l o'clock ~t night WW!
appointed tu be the hour for closing public houses.
There was, however, a proviso which said inter alin
that in any particular locality req:iiring other hours
for opening and closing inns, hotels, and publichouses it- shall be lawful for
such justices and
Magistrates respectively to insert in the schedule
such other hours, not being earlier th'm six or
la.for than eight o'clock in tho morning for
opening, or earlter thaa nine o'clock or later
than eleven o'clock in the c.-eni1w for clusin" the
"
0
same as they shall thiak fit.
IL is in pursuance of
the authority conferred on them by tho said proviso
that tho ::\Ia.gistratcs of Hothesay passed an order
embraciag every public-house iu the burg0 by which,
a deviation from the statutorily fi:i;ocl hour was
effected.
'\
-
In di·aling with tho validity of the order is~
ued by the :1-Iagistrates Lord Chancellor Lord Cairns
expressed his opinion that if the exception is to
swallo\v up the rule it ceases, of course, to be an
exception at all and that which might fairly have
been an exercise of discretion becomes no exercise ~"
of tho kind of discretion mentioned in the Act of
Parliament. It was for this reason that the order
.... -
2 S.C.R,
SUPREME COURT REPORTS.
237
issued by the Magistrates was declared to be ultra
vires. It was conceded that the Magistrates had a
discretiOn, but the Lord Chancellor observed that
the· ~ords "conferring discretion" expressly bear
with reference to a particular locality and no't with
the whole burgh. What should be true about the
whole burgh had been treated as a. matter reserved
for and determined by the consideration of the
Imperial Parliament. The Lord Chancellor did not
express any opinion on the question as to whether
the discretion vested in the Magistrates can be exercised by them more than once but without deciding
that point he held that the order of tlie Magistrates
really amounted to evading an Act of Parliament.
In substance, the Magistrates had ·once for all attempted with regard to all the public-houses in their
district to change the rule laid down by the Act of
Parliament. Lord Chelmsford, who
concurred
with the opinion expressed by the Lord Chancellor,
rested his conclusion on the ground that it was ·
impossible to say that the limits which the Magistrates had defined could be called a particular locality within burgh and so it appeared that what the
Magistrates had done was something very like an
at~empt to evade the Act of Parliament. According'to Lord Selborne, the participle. "requiring" is
connected with the su':>stantive "locality" and therefore it must be a requirement arising out of the
particular circumstances of the place. That is why
Lord Selborne thought that the Magistrates must,
in exercise of an honest and bona fide judgment,·
be of opinion that the particular locality which
they except from the ordinary rule is one which,
from itti own special circumstances, requires that
difference to be made.
·.
.·
. ·
It would thus be seen that though the genera.I ·
basis of the decision, as it has been expressed · by
Lord Cairne, appe11.rs .to be that the exception cannot swallow up the rule one of the reasons which
1961
Raghuthilakcthir th:i
Padangalawaru
S!""mji
••
Th, Stal• of .lfy,.,.
Gajendr•gadlt•r J.
Boghu thilol:otlairth•
P11tlan1c.l•t1eru
Swarmji
v.
Thi Sl'Ott oj My1011
238
SUPREME OOURT REPORTS [1963]
ultimately influenced t.he decision wa.A tha.t the discretion had to be exercised lxmafide and a.fter due
deli bera ti on in respect of a particular locality a.nd
tha.t the manner in which the order we.s iBBued indicated that the requirements of the pa.rticu,lar
localities had not been duly examined by the Magistrates. It is significa.nt that though Lord Ca.irne posed
the question a.a to whether the discretion in question
ca.n be exercised more tha.n once, he did not choose
to a.newer it; but the trend of the opinions expressed by the La. w Lords during the course of their
apeoohes may seem to suggest tha.t the discretion
cannot be exercised more than once a.nd in a.ny
case, it must be exercised by special reference to
the particular locality as indica.t£d by the proviso.
If a.n order is made in respect of the whole of thA
burgh, it. cannot be said that it has been passed
after exerdsing due discrPtion in rrapect of the
requirements of ea.ch
pa.rticula.r locality. With
respect, if the discretion is given to the llfagietratee
to provide for a. departure from the rule prescribed
by the genera.I provision by reference to particular
localities, it is not ee.sy to see why the said discret.-
ion cannot be exercised more than once. Indeed,
sit.ua.tions may arise when the Magistrates may
have to consider the matter from time to time in
respect of different localities and if it appears to
the Magistrates considering tho ca~es of different
localities that in regard to each one of them a departure from the general rule should be rnade,.it i~
not eary to follow why the proviso does not justify
diff<'rent c.rders being passed by the MagiPtrates
in respect of different but particular localities. On
the other hand, if the ma.in provision is construed
to mean that the time prescribed by it was to
apply generally only with certain PXceptions contemplated by the proviso, that would be a different
matter.
However, it is not necessary for us to
pursue this point further and to expre88 a definite
"\
\ ........
...
. --r.l
2 S.C.R.
SUPREME COURT REPORTS
239
opinion on the general proposition that an exception cannot swallow the general rule, because, as
we will presently show, this rule cannot be applied
to the provioions of s. 6 at all. In this connection
we may, however, point out that both in Maxwell and in Craies, the decision in Macbeth's case(')
appears to have been treated as an authority for
the proposition that an order like the one passed
by the Magistrates in tliat Clll!le amounted to an
evasion of the Parliamentary statute, because it
was not in hgnest and bona fide exercise of the
discretion vested in them. (Maxwell on Interpretation of Statutes, 11th Edn., p. 121, and Craies on
Statute Law, 5th Edn., p. 75.)
But assuming that the proposition for which
Mr. Shukla contends on the authority of the decision in Macbeth's case (I) is sound, does it apply to
s. 6 at all and the answer ·to this question will
depend upon t.he construction of the provisions
contained in the two sub-clauses of s. 6. It would
be noticed thats. 611) declares a maximum beyond
which no landlord can recover rent from his tenant.
In other words, as soon as the Act came into force
a ceiling was fixed beyond which the landlord mm.
not recover rent from his tenant even though it
may be justified by agr_!lement, usage, decree- or
order of a court or any other law. The provisions
of this eub-seotion apply individually and severally
to all agricultural leases and govern the relations
of individual landlords and tenants in respect of
paymPnt of rent by the latter to the formn. The
fixation of the maximum by sub-a. ( 1) is really not
intende<I to lay down a general rule as to wh'-'t a
landlord should recover from his tenant and it is in
that sense alone that its relation to the provisions
of sub-a. (2) must be judged. In that connection
we may point out that there is one provi 10 to
S; 6( l) which deals with cases of tenants who do not
{I)
(1874) L. R. 2 S.C App !52.
1962
Rag fu,tlul ::i A:a tli i' tha
PodangalaD""'
Sw::imiji
••
Tiu Stott of MyBO'I
Qa}lndragadkor J.
496t
Ro1h11t•il 1kothirtho
PadilngaJap~M
Swomiji
••
Tiu Stott oj MJ•ott
240
SUPREME COURT REPORTS
(1963)
cultivate the land and it Jaye down that in their
case the rent shall be ree.sonable rent to be fixed by
the Amildar.
Sub-section (2) ie so worded that in terms it
oannot be said to be a proviso to eub-e. (I) add io
substance it is not B'lch a proviso nor ie it an excep·
tion to sub-a. (1).
Having prescribed the maximum
beyond which agricultural rent cannot go under
s. 6(1) the legislature he.s premitted the Government
to fix a lower rate of the maximum rent in respect
of lands situated in particular areas. The Govern·
ment ha.s also been authorised to fix the pe.;vment
of rent on any other suitable baaie as i~ thinks fit.
In other words, the authority conferred on the
Government is either to fix a lower rate or to fix
any other basis on which the rent coulil be fixed.
The provision is a'l independent provision and eo
the two sub-sections must be read aa different,
independent, though co-ordinate, provisions of the
Statute. It would, we think, be erroneous to treat
sub-s. (2) as a proviso or exception to sub-s. (I).
Whereas 8U b·e. ( l) deals with and applies to all
lee.see individually and prescribes a ceiling in that
behalf, sub-s. (2) is intend to prescribe a maximum by reference to different areas in the State.
The object of both the provisions is no doubt similar but it is not the same and the relation between
them cannot legitimately be treat.Pd as the relation
between the general rule and the proviso or except·
ion to it.
The argument that by issuing the notification
L
the Government has purported to amen<l e. 6(1) ie,
in our opinion, not well-founded.
Ae. we have
already 8een, e. 6(1) is intended to apply to all the
agricultural leases until a notification is iesued
under s. 6(2) in respect of the areas where the leased
la.ode may be eitua.ted. It is not suggested that.
...-'
2 s.c.R.
SUPREME COURT REPORTS
241
under s. f(2) it is necessary that the Government
must fix the lower rates by reference to individual
lands and eo there can be no doubt that even on
the appellant's argument it would be competent
to the Government to fix
lower rent.e, say
dietrictwise. If instead of preeoribing the lower
rates distriotwise after classifying the lands into
two categories which are well recognised, the
Government prescribed the rates by referenoe
tci the said categories of lands throughout the State.
we do not see how the said notification can be said
to be inconsistent with s. 6(2) or withs. 6( I) either.
The scheme of s. 6 does not seem to postulate that
after the notifications are issued under e. 6(2) some
area must inevitably be left to be covered bys. 6(1).
Such an aesumption would be inconsistent with the
object underlying ths said provi~ion itself. Whl\t
s. 6(1) has done is to fix a genPral ceiling apart
from the areas and without considering the special
faotore appertaining to them. Having thus fixed
a ireneral ceiling the Legislature realised that the
ceiling may have to be ohanged from area to area
and so power was conferred on the Government to
fix the ceiling at a lower rate. The Government
having examined the matter came to the conclusion
that the more _equitable and reasonable course to
adopt would be to divide the &!lfioultural lands into
two well-known categories and fix the ceiling by
reference to them. Now in the very nature of things,
the Legislature must have anticipated that the
exercise of the power under s. 6(2) might cover all
the areas in the State and that may mean that the
general ceiling preeoribed by s. 6( I) may not apply
to any land which is oovered by the notification. If
s. 6(1) is not a general rule ands. 6(2) is not an
exception to it, ·then the ooneequenoe flowing from
the issue of the impugned notification cannot be
oharacterised as an exception swallowing up the
IHI
R111hu,hi/Jkathirtlra
Padanga/aoafK
Swamiji
v.
Tlw Stal1 of M:μor
Goj1ndrozai1car J.
19G:!
R 'fl1hulhi f ,,/,:o1thirtlaa
i > Jdangat.:~'.'"
,•wt/tll!JI
••
Tht State of ~llysot1
Ua}e111/r,todkar J,
,<pril JR.
~-12
~PPRF.i\IF, COTTR't" REPORTS [l!l63]
l!<'ncral rnlc. Th11.t, in A•ibstancc, is tho view which
the Mysore High Court ha~ taken in tho matter
and we think tl1at tho said view is right.
In the n•snlt, t.hc app~al fails and is dismissed
with costs.
Appenl dismi.9sed.
RA:\£ LAL KAPUR AND SONS (P)LTD.
1.'•
RAM NATI! AND OTHERS
(B. P. SINHA, c. J .. P. B. GAJF.NllRAGADKAR, TC N.
\VAxcnoo, N. RAJAGOPALA AYYANGAR nnd
T. L. YENIL\T,\ It.DIA An-AR, J J.)
Suprenze Courl--Ap111ication for .eptcial lcflre-DeTaJ1Condo11a1i'on--;.'·cces.~ity to
gh·c notice .1o rtspondtnt bPfore
n1aki11q
nrder-S11pre?ne Court R11lra, 1950, 0 .• Y.lll, r. 1.
prnri"o ( r).
Against the judgment of the Single Judge of the Punjab
High Court dated January 5, 195j, in which he followed the
de<·ision of a Di\·ision Bench holding thats. 7/\ of the Delhi
and Ajmcr Rent Control :\ct, 194 7, \Va" unconstitutional and
\'oid, the appellants preferred an appeal under the Letters
Patent.
~leanwhile the judgment or the Division Bench
was brought up by way or appeal to the Supreme Court, and
as the appeal was getting ready to be heard, the appellants
nlade an application on January 3, 1959, for special leave to
appeal to the Supreme Court against the judgment of the
Single Judge.
~o notice was give"n to the respondent to
the
application, and special leave ,.;as granted
cx-parte.
'fhe Letters Patents appeal was therraftcr withdrawn by the
appellants. \\'htn the appt>al came on for hearing in due course,
the respondent r:liot.rd an objection to the hc<iring of the
appeal on die ;.:ro11nd" th;\t the application for special leave
\VclS barred by limitation, that there ''·ere no sufficient r~a
sons for condoniu; the ldll.,:;' delay of four years, and that the
~pecial leave g-rantecl ex-pa rte should be CC\'okccl.
-.....,,..