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PETITIONER: THAKUR KESARI SINGH

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN AND OTHERS.

DATE OF JUDGMENT: 19/10/1960

BENCH: IMAM, SYED JAFFER BENCH: IMAM, SYED JAFFER SARKAR, A.K. DAYAL, RAGHUBAR

CITATION:  1961 AIR  432            1961 SCR  (2)  47

ACT: Landlord   and   Tenant--General  refusal  of   payment   of rent--Notification  by Government--Application for  recovery of   rent  as  arrears  of   land   revenue--Rescission   of notification--Validity   of   proceeding   Procedure--Marwar Tenancy Act, 1949 (XXXIX of 1949), s. 85--Rajasthan  Revenue Courts (Procedure and jurisdiction)     Act,   1951  (1   of 1951), s. 2.

HEADNOTE: The Marwar Tenancy Act, 1949, now repealed but which was  in force in the State of jodhpur at the relevant period, by  s. 85 authorised the Government in case of any general  refusal by tenants to pay rent to declare by notification that  such rents  might  be recovered as arrears of  land  revenue.   A notification  having  been  issued  by  the  Government   of Rajasthan  under  that section the  appellant,  a  jagirdar, applied  to  the Collector thereunder for  the  recovery  of rents due to him from his tenants.  The tenants also applied to the Collector stating that notice of the said application should be served on them and they should be given a  hearing as  required by the rule framed under the Rajasthan  Revenue Courts   (Procedure  and  jurisdiction)  Act,   1951.    The Collector  rejected the tenants’ application and  passed  an order  directing the recovery of the sum found to be due  to the  appellant as arrears of land revenue.   The  Additional Commissioner on appeal and the Board of Revenue in  revision upheld  the Collector’s order.  But before the Board  passed its order the 48 Government rescinded the notification.  The High Court on an application  under  Art. 226 of the Constitution  held  that although  s. 85 of the Tenancy Act had not been repealed  by the  Revenue Courts Act, 1951, the rules framed  under  that section  had  been, and the non-compliance  with  the  rules framed under the latter Act which should have been followed, was  an  error  on the face of the record  and  quashed  the orders directing that since the notification under s. 85  of the  Tenancy  Act  had  been  rescinded  no  further  action thereunder should be taken by the Collector. Held,  that  there  could  be no doubt  that  s.  2  of  the

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Rajasthan  Revenue Courts (Procedure and jurisdiction)  Act, 1951,  had  not repealed s. 85 of the  Marwar  Tenancy  Act, 1949, and that the former Act contemplated its  continuance, unfettered  by  the bar of limitation, and subject  to  this modification  that an application under the section  was  no longer  to  be made to the Deputy Commissioner  but  to  the Collector. Section  85 of the Tenancy Act clearly contemplated that  an application thereunder shall be heard and determined in  the absence of the tenant.  The right given by the section was a summary one and the application must be heard ex parte.   It was  not,  therefore, necessary to serve any notice  on  the tenants. It would not be correct to hold that the procedure of a con- tested  proceeding  as prescribed by Ch.  II  of  the  Rules framed under the Revenue Courts (Procedure and jurisdiction) Act, 1951, could apply to the application for to apply  them would be to wholly defeat its object. Once a notification under the section had been issued and an application   duly  made,  subsequent  rescission  of   ’the notification  could not divest the appropriate authority  of the   power  already  vested  in  him  to  dispose  of   the application.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 277 of 1955. Appeal from the judgment and order dated April 27, 1954,  of the Rajasthan High Court in Civil Mis.  Writ No. 1/1954. N.   C.  Chatterjee, Suresh Agarwal and Ganpat Rai, for  the appellant. R.K.  Rastogi  and K. L. Mehta, for the  respondents.  1960. October 19.  The Judgment of the Court was delivered by IMAM  J.-The appellant was the Jagirdar of Thikana Rakhi  in the Marwar (Jodhpur) area of the State of Rajasthan.  Within Thikana Rakhi was the 49 village of Khakharki.  He had a number of tenants under  him in the village who paid rent on the basis of a certain share of the produce of the land held. There  was  an Act in force in the Marwar  area  called  the Marwar  Tenancy Act of 1949, hereafter refer. red to as  the Tenancy  Act,  which  had been passed by  His  Highness  the Maharaja  of Jodhpur before the integration of the State  of Jodhpur  in  the State of Rajasthan.  That  Act  now  stands repealed  but we are concerned with a period when it was  in force.   Section 78 of that Act provides that when  rent  is payable  by  a  division of the produce or is  based  on  an estimate or appraisement of the standing crop, the  landlord or  the  tenant may apply to the Tahsildar  for  making  the division,  estimate or appraisement, when this could not  be done amicably.  Section 79 of the Tenancy Act lays down  the procedure  to  be  followed  at  the  hearing  of  such   an application  and provides that any amount found due as  rent by  the Tahsildar on that application shall have the  effect of a decree for arrears of rent. On  October 31, 1950, the appellant who had some  difficulty in realising the rent from his tenants in village Khakharki, made  an application under s. 78 of the Tenancy Act  to  the Tahsildar,  Merta,  within which the village  Khakharki  was situate.   Before this application was finally disposed  of, the  Government of Rajasthan issued a Notification under  s. 85 of the Tenancy Act which is set out below: Jaipur, February 22, 1951.  No. F. 4(74) Rev./1/ 51.-Whereas

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it  has  been  made to appear that the  cultivators  of  the villages mentioned in the Schedule below have refused to pay rent to the persons entitled to collect the same; Now,  therefore, in exercise of the power conferred by  sub- sec.  (1)  of sec. 85 of the Marwar Tenancy Act,  1949  (No. XXXIX  of 1949), the Government of Rajasthan is  pleased  to declare that such rents may be recovered as arrears of  land revenue. 7 50 by order of His Highness the Rajpramukh, H. D. Ujwal Secretary to the Government of Rajasthan, Revenue Department. This  Notification was published in the Official Gazette  on March  3,  1951, and one of the villages  mentioned  in  the Schedule to it, was Khakharki.  In view of the Notification, the  appellant  became entitled under s. 85,  the  terms  of which  will be set out later, to have the rents due  to  him from  the tenants of Kbakharki realised as arrears  of  land revenue.   Accordingly,  on  March  9,  1951,  he  filed  an application   under  that  section  in  the  Court  of   the Collector, Nagaur, within whose jurisdiction lay the village of Khakharki for recovery as arrears of land revenue of  the rents due to him for 1950-51 from those tenants of Khakharki who  had  refused to pay them.  Subsequently, on  March  26, 1951, the appellant’s application under s. 78 of the Tenancy Act was dismissed for reasons which it is not necessary  for the purpose of this appeal to state. On  March 29, 1951, the tenants filed an application in  the Court of the Collector of Nagaur stating that the notice  of the  appellant’s application under s. 85 of the Tenancy  Act should  be served on them and they should be heard  on  that application- as this was required by the rules framed  under the  Rajasthan Revenue Courts (Procedure  and  Jurisdiction) Act  of 1951, hereinafter referred to as the Revenue  Courts Act,  which governed that application.  The  Revenue  Courts Act  was  an Act passed by the Rajpramukh of  the  State  of Rajasthan  with  which the State of Jodhpur  had  integrated prior  thereto,  and  it  applied  to  the  whole  State  of Rajasthan,  including the Marwar area.  This Act  came  into force on January 31, 1951.  This application by the  tenants was rejected by the Collector.  Thereafter, on April 5, 1951 the  Collector passed an order by which a total sum  of  Rs. 38,587-3.0  was found due to the appellant from the  tenants on account of rent, other charges and court fees.  The 51 Collector then sent the order to the Tahsildar of Merta  for recovering that sum as arrears of land revenue. The   tenants   filed  an  appeal  before   the   Additional Commissioner, Jodhpur, challenging the validity of the order of  the  Collector  dated April 5, 1951.   This  appeal  was dismissed  by  the Additional Commissioner  on  November  2, 1951. The  tenants then went in revision to the Board of  Revenue, Rajasthan.   The  Board of Revenue took the  view  that  the Revenue  Courts  Act had not affected the  procedure  to  be followed on the hearing of an application under s. 85 of the Tenancy  Act  but  it remanded the case  to  the  Additional Commissioner as the tenants contended that the  Additional Commissioner had not decided other points that arose in  the appeal  to  him.   The  Additional  Commissioner  heard  the tenants on the other points and again dismissed their appeal

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on July 7,1952. The  tenants moved the Board of Revenue in revision  against the  order  of  July 7, 1952, also.   Before  the  Board  of Revenue  could decide the revision case, the  Government  of Rajasthan   on   November   1,   1952,   published   another Notification  rescinding  the  earlier  Notification   dated February  22, 1951, issued under s. 85 of the  Tenancy  Act. One of the points argued before the Board of Revenue in this revision  case  was that in view of the  rescission  of  the Notification, no further proceedings could be taken under s. 85  of  the Tenancy Act for recovery of rent as  arrears  of land  revenue.  The Board of Revenue rejected this  and  all other  contentions  raised  on behalf  of  the  tenants  and dismissed the revision case on September 29, 1953. Fortythree of the tenants filed a petition in the High Court for  Rajasthan for a writ of certiorari to quash the  orders of  the  Collector,  the  Additional  Commissioner  and  the Revenue  Board, earlier mentioned.  The High  Court  allowed the petition and quashed and set aside these orders and held that the Notification under s. 85 of the Tenancy Act  having been  cancelled, no further proceedings for  realisation  of arrears of rent as arrears of land revenue could be taken by the  Collector of Nagaur.  The High Court however granted  a certificate that the case was a fit one for appeal 52 to  the Supreme Court.  Hence the present appeal.  The  rent found  due  has  not  been realised  yet  by  the  Tahsildar presumably,  in  view  of  the  pending  proceedings.    The respondents  to  the appeal are the State of  Rajasthan  and various  Revenue  Officers of that State  and  the  tenants. This  appeal has been contested only by some of the  tenants and the other respondents have not appeared before us. Section 85 of the Tenancy Act is in these terms: S.   85.--"’(1)  In case of any general refusal to pay  rent to  persons entitled to collect the same in any  local  area the  Government  may,  by  notification  in,  the   Official Gazette, declare that such rents may be recovered as arrears of land revenue. (2)  In  any local area to which a notification  made  under sub-sec. (1) applies a landlord or any other person to  whom an  arrear of rent is due, may notwithstanding  anything  to the  contrary  in this or any other enactment for  the  time being in force, instead of suing for recovery of the  arrear under  this Act apply in writing to the Deputy  Commissioner to realise the same, and the Deputy Commissioner shall after satisfying  himself that the amount claimed is due,  proceed subject to the rules made by the Government to recover  such amount with costs and interest as an arrear of land revenue. (3)  The  Deputy Commissioner shall not be made a  defendant in  any  suit in respect of an amount for  the  recovery  of which an order has been passed under this section. (4)  Nothing herein contained and no order passed under this section shall debar:- (a)  a  landlord from recovering by suit or application  any amount  due to him which has not been recovered  under  this section; (b)  a person from whom any amount has been recovered  under this  section,  in excess of the amount due from  him,  from recovering such excess by suit against the landlord or other person on whose application the arrear was realised. The  first point raised on behalf of the respondents in  the High Court was that s. 85 of the Tenancy Act 53 had  itself been repealed by the Revenue Courts Act  and  no action  under that section could be taken after  the  latter

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Act had come into force. The  Revenue  Courts  Act was repealed  in  1955  after  the judgment  of the High Court was delivered but this does  not affect  the question before us.  The long title of  the  Act states that the Act is intended to provide for and  regulate the  jurisdiction  and  procedure  of  Revenue  Courts   and Officers, in Rajasthan.  The preamble states " Whereas it is expedient, pending the enactment of a comprehensive law  for the  whole  of Rajasthan relating to  agricultural  tenancy, land tenures, revenue, rent, survey, record, settlement  and other  matters  connected  with land,  to  provide  for  and regulate  the jurisdiction and procedure of  revenue  courts and  officers in relation to such matters arising under  the laws  in  force in the covenanting States  of  Rajasthan  ". Jodhpur  was  one of the covenanting States and one  of  the laws  in  force  there,  was  the  Tenancy  Act.   This  Act continued  to  apply  to the territories  belonging  to  the former  Jodhpur  State which since the  integration,  formed part  of the State of Rajasthan, till that Act was  repealed as hereinbefore stated.  Section 2 of the Act provides, " On and from the coming into force of this Act all existing laws shall,  in  so far as they relate to matters dealt  with  in this Act, be repealed ". It is said that the effect of s.  2 of the Revenue Courts Act is to repeal s. 85 of the  Tenancy Act.   The High Court was, unable to accept this  contention and  we think rightly.  Section 85 of the Tenancy Act  would be  repealed  only if the Revenue Courts Act  contained  any provision dealing with the matter covered by it.  We find no such provision in the Revenue Courts Act, The Revenue Courts Act  deals  with matters of jurisdiction  and  procedure  of Revenue  Courts.   It  does not deal  with  any  substantive right.   This  is clear from the provisions of  the  Revenue Courts  Act and, indeed, is not in dispute.  Quite  clearly, s. 85 creates, on the requisite notification being issued, a substantive right in a landlord to have the rent due to  him recovered  as arrears of land revenue.  We do not  find  any provision 54 in the Revenue Courts Act dealing with the substantive right created  by s. 85 of the Tenancy Act.  There is,  therefore, no  foundation for the argument that that section  has  been repealed by s. 2 of the Revenue Courts Act. A reference to schedule 1 to Revenue Courts Act which  gives a list of suits and applications triable by a Revenue  Court and  prescribes the periods of limitation applicable to  and court  fees payable on them can usefully be made  now.   The schedule  is divided into several groups, of which  group  C contains  a  list of applications triable  by  a  Collector. Item 2 of this group concerns applications " for realisation of  rent as land revenue on the general refusal to pay  rent ".  In regard to the period of limitation for such  applica- tions,  it  is stated there that none exists.   We  have  no doubt that item 2 of group C in the schedule does not confer a  substantive right to make an application for  realisation of rent as land revenue at all.  The purpose of the schedule appears  from ss. 7, 9 and 10 of the Act which  respectively provide that the jurisdiction of the various revenue courts, the  periods of limitation for proceedings  maintainable  in these  Courts  and  the court fees payable  thereon  are  as stated  in the schedule.  The schedule is not  operative  by itself So item 2 of group C in the schedule does not  confer any right to apply for collection of rent as arrears of land revenue.   On  the  other  hand,  the  mention  of  such  an application  in  the  schedule clearly  indicates  that  the Revenue  Courts Act recognises that such an  application  is

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competent.   Since  the Revenue Courts Act itself  does  not authorise such an application, it must be so competent under other existing laws, reference to which has been made in the preamble and s. 2 of the Act.  One of such laws is s. 85  of the Tenancy Act.  Therefore it seems to us that the  Revenue Courts  Act, instead of repealing s. 85 of the  Tenancy  Act contemplates its continuance in force. It  is  necessary before leaving this part of  the  case  to refer  to  Ch.   XIII of the Tenancy Act  which  deals  with procedure and jurisdiction.  It consists of ss. 118 to  144. Section  118  says that all suits and  applications  of  the nature specified in the second schedule to 55 the  Act shall be heard and determined by a  Revenue  Court. Section  124  states that all suits  and  other  proceedings especified in the second schedule shall be instituted within the time prescribed for them in that schedule.  Section  129 provides  that  a Deputy Commissioner shall  have  power  to dispose  of applications specified in group E of the  second schedule.   It  is  not  necessary to  refer  to  the  other sections  in this Chapter.  Turning to second  schedule,  we find that group E is concerned with applications triable  by a  Deputy  Commissioner.  Item 4 of this  group  deals  with applications  under s. 85 " for collection of rent  as  land revenue in the event of general refusal to pay ". The period of limitation for such applications is stated there to be  " so  long as notification remains in force " and this  period is  stated to commence from the time when  the  notification under the section is published in the Official Gazette. Now  the Revenue Courts Act provides by s. 7 that all  suits and  applications of the nature specified in the  first  and second schedules shall be heard and determined by a  revenue court.  A revenue court is defined in s. 4(xvi) of this  Act as  including  among  others,  the  Board  of  Revenue,  the Commissioners  and the Collectors.  We have  earlier  stated that  item  2 of group C in the first schedule to  this  Act refers to an application under s. 85 of the Tenancy Act, and provides  that  there shall be no period of  limitation  for making  such an application, and that it shall be made to  a Collector.  Therefore, for an application under s. 85 of the Tenancy  Act the Revenue Courts Act specifies a new  revenue court,  namely,  the Collector, in the place of  the  Deputy Commissioner mentioned in s. 85 of the Tenancy Act and  also makes it free of the bar of limitation.  It follows that ss. 7  and 9 of the Revenue Courts Act deal with  matters  dealt with in ss. 118, 124 and 129 of the Tenancy Act.  By  virtue of  s. 2 of the Revenue Courts Act, ss. 118, 124 and 129  of the  Tenancy Act will have to be taken as  repealed.   There would also consequently be a repeal of item 4 of group E  in the  second schedule to the Tenancy Act.  The position  then is that since the coming into force of 56 the  Revenue  Courts Act, there is no period  of  limitation prescribed  for  making an application under s.  85  of  the Tenancy  Act  and  that  application has to  be  made  to  a Collector.  The application under s. 85 by the appellant  in the  present case had been made to the Collector, as at  the date  when it was made the Revenue Courts Act was in  force. The  repeal of ss. 118,124 and 129 of the Tenancy  Act  does not however affect s. 85 of this Act except as  hereinbefore stated. Next  it is said that even though s. 85 of the  Tenancy  Act may not have been repealed, the procedure to be followed  in respect of an application made under it is in view of r. 114 in, Ch.  IV of the rules framed under the Revenue Courts Act

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is  that  laid down in Ch. 11 of these rules and  that  that procedure   was  not  followed.   This,  it  is   contended, constitutes  an  error apparent on the face  of  the  orders passed by the revenue authorities in this case, and renders them liable to be set aside. A reference has now to be made to the rules framed under  s. 85 of the Tenancy Act.  These rules, so far as relevant  for our  purpose, prescribe that an application by the  landlord under  the  section  shall be accompanied by  a  list  in  a prescribed  form  in which is to be stated the dues  of  the landlord  for canal charges, rent, interest and court  fees. Rule  34 provides that the Deputy Commissioner  shall  check the lists by examining the Patwari or by any other  suitable method and thereafter enter in the appropriate column in the form,  the  amounts passed by him as due  to  the  landlord. Under  r.  35  he has thereafter to send  the  list  to  the Tahsildar  who  shall  then proceed to  realise  the  amount stated  in the list by the Deputy Commissioner to be due  to the landlord. It is said on behalf of the tenants that the rules under  s. 85 lay down the procedure for the disposal of an application made  under  that section, and that these  rules  have  been repealed by s. 2 of the Revenue Courts Act, read with r. 114 of  the rules framed under that Act.  It is  contended  that the revenue authorities committed an error in following  the rules framed 57 under  s. 85 of the Tenancy Act and not those prescribed  in Ch. 11 of the rules made under the Revenue Courts Act. Now Ch.  IV of the rules framed under the Revenue Courts Act consists  only  of  r. 114.  That  rule  provides  that  the procedure  laid down in Ch.  II of the same rules  shall  be followed,  so  far  as it can be  made  applicable,  in  all proceedings  in  revenue  courts. In view of  s.  7  of  the Revenue  Courts  Act,  an application under  a.  85  of  the Tenancy Act must, since the coming into force of the  former Act,  be heard and determined by a revenue court.   Such  an application  there.  fore gives rise to a  proceeding  in  a revenue  court  and such a proceeding must, it is  said,  in view  of r. 114 be according to the procedure prescribed  by Ch. 11 of the rules framed under the Revenue Courts Act.  It is enough for our purposes to say that Ch.  II lays down a  procedure  for  a contested matter, that is  to  say,  it requires that notice of the proceedings should be issued  to the  respondent to it and he should be given a hearing.   It is unnecessary to refer to the detailed procedure prescribed in this chapter for, as no notice of the application had  in fact been given to the tenants in this case and they had not been  heard on it, it must be held that the  procedure  laid down in that chapter had not been followed. The  High Court accepted the contention of the tenants  that the  rules  framed under s. 85 of the Tenancy Act  had  been repealed  and that the rules in Ch. II of the  rules  framed under  the Revenue Courts Act applied and should  have  been followed.   It  therefore  held  that  there  was  an  error apparent  on the face of the record and thereupon set  aside the  orders  of the revenue authorities  challenged  by  the tenants. We have given our anxious consideration to this question but have  been unable to agree with the view taken by  the  High Court.   It seems to us that the rules made under s.  85  of the  Tenancy  Act had not laid down any  special  procedure. The only rule relevant in this connection is r. 34 to  which we  have  earlier referred.  All that that rule does  is  to require 8

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58 the  Deputy  Commissioner to check the list,  a  duty  which under  the section itself he has to perform, and also  makes it necessary for him to examine the patwari for the purpose. The  rules  do  not indicate how the application  is  to  be heard, that is, whether ex parte or on notice. It  seems  clear  to  us  that  a.  85  itself  requires  an application  made under it to be heard ex parte.  First  the section does not say that a notice of the application has to be served on the tenant concerned.  Secondly, an application under  the section can be made only after  the  notification prescribed has been issued.  That notification decides  that there  has  been a general refusal by tenants to  pay  rent. Therefore  the section could not have contemplated that  the question  whether  a tenant had so refused  would  be  heard again  on  notice  to  him.   Thirdly,  in  proceedings  for recovery  of land revenue, the persons liable are not  heard and therefore when rent is directed to be recovered as  land revenue,  it is not contemplated that the tenants should  be heard.  It is of the essence of such proceedings that  there shall  be  a summary and quick decision.  If  the  procedure laid  down in Ch. 11 of the rules framed under  the  Revenue Courts Act has to be followed, the entire object of s. 85 of the  Tenancy Act would, in our view, be defeated.  It  seems to us that s. 85 would then really become redundant for then it would contemplate an application for realisation of  rent giving  rise  to  a contested  proceeding  governed  by  the procedure  of a suit and would be a duplication of s. 78  of the Tenancy Act earlier referred to or of s. 80 of the  same Act  which  provides for a suit in a revenue court  for  the recovery of rent both of which have to be heard as contested proceedings  in the presence of the other  side.   Fourthly, c1. (b) of sub-sec. (4) of s. 85 of the Tenancy Act  plainly indicates  that the proceeding on an application under  that section is to be ex parte.  That clause contemplates a  suit against a landlord by a tenant from whom an amount in excess of what is legally due has been recovered under the section. Now the amount recovered cannot of course exceed the amount 59 passed  as  due  by the Deputy  Commissioner.  So  the  suit contemplated  in s. 85(4)(b) would really be one to  contest the correctness of the finding of the Deputy Commissioner as to  the  amount due.  It would be  inconceivable  that  such would be contemplated under the section if the amount has to be  decided  by the Deputy Commissioner  after  hearing  the tenant.   It  is clearly not necessary  that  two  contested proceedings,  one  after the other, in respect of  the  same question, between the same parties should be provided for. It  seems,  therefore, quite clear to us that s. 85  of  the Tenancy Act contemplates that the application made under  it shall be heard and determined in the absence of the  tenant. Indeed this is not really questioned, for, the contention on behalf  of  the tenants is that the  procedure  followed  is wrong,  Dot because that is not the procedure laid  down  in the Tenancy Act, but because the Revenue Courts Act and  the rules  made thereunder had replaced the ex  parte  procedure provided by the Tenancy Act, by the procedure of a Contested proceeding laid down in Ch. 11 of the rules framed under the Revenue  Courts Act and this is the procedure  which  should have been followed. Now,  once it is found, as we have found, that s. 85 of  the Tenancy Act has not been repealed by the Revenue Courts  Act except to the extent that an application under it has now to be  made to a Collector and not to a Deputy Commissioner  as provided  in it, the whole of it has to be given effect  to.

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The  procedure  contemplated by the section is  an  integral part of the right granted by it, and one cannot be separated from  the  other.   The  application  made  under  it   has, therefore, still to be heard and determined ex parte. Rule  114 of the rules framed under the Revenue  Courts  Act earlier  referred to can be of no assistance to the  tenants in  the  present context.  It does not in terms  purport  to repeals.  85 of the Tenancy Act.  We have earlier  said  the Revenue Courts Act contemplated the continuance in force  of s. 85 of the Tenancy Act, and hence no rule framed under the former Act 60 could  intend by implication to repeal that  section.   Rule 114  may  apply to applications under  other  provisions  of existing laws which are not required by them to be heard  ex parte. In  our  view, for the reasons  aforesaid,  the  application under  that  section was properly and  correctly  heard  and determined without notice to the tenants.  Such hearing does not disclose any error at all. Then  it  is said that after the rescission of  the  Notifi- cation dated February 22, 1951, no further proceeding  could be  taken under s. 85 of the Tenancy Act.   This  contention also  found  favour with the High Court and with  this  view again  we  are  unable to agree.   Subsection  (1)  of  that section  provides for the issue of a notification  declaring that  certain  rents  may be recovered as  arrears  of  land revenue.  Sub-section (2) states that " in any local area to which  a notification made under sub-section (1) applies,  a landlord  to  whom an arrear of rent is due,  may  apply  in writing to the Deputy Commissioner to realise the same,  and the Deputy Commissioner shall after satisfying himself  that the  amount claimed is due, proceed ...... to  recover  such amount  as an arrear of land revenue." It is contended  that the  words " in any local area to which a notification  made under  subsection (1) applies " govern both the  application by  the landlord and the action of the  Deputy  Commissioner following  thereon  and therefore  the  Deputy  Commissioner cannot  after the rescission of the notification,  take  any action under the section at all. It  seems to us that this contention of the tenants  is  not warranted  by the language of the section.  The words  "  in any  local  area  to which a notification  made  under  sub- section  (1) applies " are concerned with the area  and  not with  the  time  during which the  notification  remains  in force.   That follows from the words " in any local area  ". There  is  no  reference anywhere to  the  currency  of  the notification  in  point  of  time.  Item 4  of  group  E  in schedule 11 to the Tenancy Act earlier referred to, leads to the same conclusion.  That item provides that the period  of limitation  for  an application under s. 85 is  so  long  as notification 61 remains  in force.  It is clear that if in sub-sec. (2)  the words ’,in any local area to which a notification applies  " meant,  during the currency of the notification in point  to time,  there would have been no need to specify a period  of limitation in schedule 11.  We have also earlier pointed out that  item 4 of group C in schedule II has been repealed  by the  corresponding  provisions in the  Revenue  Courts  Act. Since  the latter Act came into force, the position is  that there is no period of limitation for an application under s. 85  of  the Tenancy Act.  It is  impossible,  therefore,  to contend  that  the  words " in any local  area  to  which  a notification  made under sub-section (1) applies "  indicate

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that  the  Deputy  Commissioner’s  power  to  act  when   an application under that section is made, exists only so  long as the notification remains in force. It also seems to us that the Deputy Commissioner’s power  to act  arises  on an application having been duly  made  under sub-see.  (2) of s. 85.  Even if that application had to  be made  within  the period that the notification  remained  in force, there would be nothing in sub-sec. (2) to lead to the conclusion  that the Deputy Commissioner’s power to  act  on the  application  would  also  depend  on  the  notification remaining  in  force.   It may be stated here  that  in  the present  case  the  application had  been  made  before  the Notification  had  been rescinded.   Once  the  notification under  s.  85 is issued, power is certainly  vested  in  the appropriate Revenue officers to deal with and dispose of  an application   made  under  that  section  at  a   time   the notification  was  in force and applied  to  the  particular area.  Subsequent cancellation of the notification would not divest the appropriate authority of the power already vested in him to dispose of the application which was properly  and duly  made  under s. 85.  In our view, steps  can  be  taken under  s. 85 of the Tenancy Act by the  appropriate  Revenue Officer for realisation of rent found due as arrears of land revenue  even after the notification under that section  has been rescinded. Reliance   is  placed  by  the  learned  advocate  for   the respondents on Crown v. Haveli (1).  In that case it (1)  A.I.R. 1949 Lah. 191. 62 was  held  that further proceedings under  a  temporary  Act could  not  be  continued  after  it  had  expired.   It  is contended  that  s.  85  of the Tenancy  Act  was  really  a temporary Act for it was brought into operation only upon  a notification which notification was clearly not intended  to be  of  permanent operation.  We are unable to  accept  this view.   The fact, if this be so, that s. 85 is brought  into operation by a notification, and that that notification  may not  be of permanent operation, does not make the section  a temporary  enactment.  We do not think that  the  principles applicable to interpretation_ of temporary Acts apply to the case of a provision like s. 85 of the Tenancy Act. reliance is also placed on cl.(a) of sub-sec. (4) of s.85 of the Tenancy Act.  It is said that this clause by  permitting suits  for recovery of rents which have not  been  recovered under  the section, indicates that after the  rescission  of the Notification, further proceedings cannot be taken  under the section.  It is contended that cl. (a) contemplates that it may so happen that when a notification is rescinded,  the whole  amount  of rent in respect of which  the  application under  s. 85 had been made, had not been recovered and  that cl.  (a) permits suit to be filed in respect of  the  amount which  remained unrealised at the date the  notification  is rescinded.   This argument seems to us to beg the  question, for, it proceeds on the basis that the suit contemplated  by el. (a) is for the amount of rent which cannot be  recovered under the section any more because of the rescission of  the notification.   Clause  (a) however may clearly apply  to  a case where in spite of a notification under the section, the landlord  whether during its currency or later,  chooses  to proceed  by way of a suit under the other provisions of  the Tenancy Act. It  is  then  contended on behalf of the  tenants  that  the Notification   of  February  22,  1951,  was  not  a   valid notification because out of 125 tenants in village Khakharki 82  had  paid  rent  and  the  remaining  43,  who  are  the

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respondents  in this appeal, were willing to pay  but  could not pay as the appellant was asking 63 for larger sums than what were legitimately due to him.   It is  contended that on these facts it could not be said  that there  was a general refusal to pay rent within the  meaning of  s.  85 of the Tenancy Act.  Hence, it is said  that  the Notification  was ultra vires the section  and  inoperative. We  do  not think that the tenants can be allowed  to  raise this  point in this Court.  It does not appear to have  been raised  in the High Court.  The High Court’s judgment  makes no  mention  of it.  Whether it is open for a  Court  to  go behind  the notification issued under s. 85 and  decide  its validity  or  not, this contention of the tenants  raises  a question  of fact as to how many tenants had refused to  pay rent.   It also raises a question of interpretation  of  the words  "general  refusal to pay " in s. 85.  None  of  these questions   was  raised  at  any  earlier  stage.   We   are therefore,  not inclined to allow the tenants to raise  them now. In the result we allow the appeal with costs here and below. Appeal allowed.