{"id":246042,"date":"1962-04-18T00:00:00","date_gmt":"1962-04-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sree-vs-the-state-of-mysore-and-others-on-18-april-1962"},"modified":"2017-02-28T16:53:33","modified_gmt":"2017-02-28T11:23:33","slug":"sree-vs-the-state-of-mysore-and-others-on-18-april-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sree-vs-the-state-of-mysore-and-others-on-18-april-1962","title":{"rendered":"Sree … vs The State Of Mysore And Others on 18 April, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sree … vs The State Of Mysore And Others on 18 April, 1962<\/div>\n
Equivalent citations: 1966 AIR 1172, \t\t 1963 SCR (2) 226<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Ayyangar, N. Rajagopala, Aiyyar, T.L. Venkatarama<\/div>\n
           PETITIONER:\nSREE RAGHUTHILAKATHIRTHASREEPADANGALAVARU SWAMIJI\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF MYSORE AND OTHERS\n\nDATE OF JUDGMENT:\n18\/04\/1962\n\nBENCH:\nGAJENDRAGADKAR, P.B.\nBENCH:\nGAJENDRAGADKAR, P.B.\nAIYYAR, T.L. VENKATARAMA\nSINHA, BHUVNESHWAR P.(CJ)\nWANCHOO, K.N.\nAYYANGAR, N. RAJAGOPALA\n\nCITATION:\n 1966 AIR 1172\t\t  1963 SCR  (2) 226\n\n\nACT:\nLandlord and Tenant-Rent-Enactment providing for fixation of\nmaximum\t rent-Constitutional  validity-Notification   sixing\nstandard rent-Validity-Bombay Tenancy and Agricultural Lands\nAct,  1948 (Bom. 67 of 1948), s. 6-Mysore Tenancy Act,\t1952\n(Mysore 13 of 1952), ss. 6(1) (2), 12-Constitution of India,\nArt. 14,19(1) (f), 26,31,31A.\n\n\n\nHEADNOTE:\nThe  Mysore Tenancy Act, 1952, was enacted, inter alia,\t for\nthe  purpose  of  regulating  the  law\twhich  governed\t the\nrelations  of landlords and tenants of\tagricultural  lands.\nSubsection   (1)   of\ts.  6  of   the\t  Act\tprovided   :\n\"Notwithstanding any agreement, usage, decree or order of  a\ncourt or any law, the maximum rent payable in respect of any\nperiod...... by a tenant for the lease of any land shall not\nexceed one-half of the crop or crops raised on such land  or\nits  value  as determined in the prescribed  manner\".\t\"The\nGovernment may, by notification in the Mysore Gazette, fix a\nlower  rate  of the maximum rent payable by the\t tenants  of\nlands situate in any particular area or may fix such rate on\nany other suitable basis as they think fit\".  In exercise of\nthe  powers  conferred by s.6(2), the Government  of  Mysore\nissued\ta notification purporting to fix the  standard\trent\nfor land\n227\nspecified  in  Sch.  I which dealt with Maidan\tareas  i.e.,\nlands  on  the plains at one third of the produce,  and\t for\nthose  specified  in Sch.II which dealt\t with  Malnad  areas\ni.e., lands on hilly tracts at one fourth.\nThe  appellant\twho  owned garden land in  the\tdistrict  of\nShimoga in Mysore State and who had leased out the land to a\ntenant, challenged the validity or s 6(2) of the Act as well\nas  the\t notification on the rounds  that  they\t contravened\nArts. 14, 19(1) (f), 26, 31 and 31 A of the Constitution  of\nIndia,\t and  that,  in\t any  case,  the  notification\t was\ninconsistent  with  s. 6(1) inasmuch as it was based  on  s.\n6(2)  which  being  an exception to S.\t6(1)  could  not  be\nallowed\t to  swallow  up  the  general\trule  and  that\t was\nprecisely what the notification purported to do.  The Mysore\nTenancy\t Act  was  modelled on the  pattern  of\t the  Bombay\nTenancy and Agricultural Lands Act, 1948, and the provisions\nof s.6 of the Mysore Act were. similar to s.6 of the  Bombay\nAct.  In  Vasantlal  Maganbhai Sanjanwala v.  The  State  of\nBombay,<\/a>\t [1961] 1. S. C. R. 341 ; it was held that s.  6  of\nthe  Bombay Act was vaild.The appellant contended  that\t the\naforesaid  decision  was not applicable because\t there\twere\ndifference,;  between  the two Acts inasmuch as (1)  in\t the\npreamble to the Bombay Act it was stated that it was  passed\ninter  alia  for the purpose of improving the  economic\t and\nsocial conditions of peasants and this was not mentioned  in\nthe  Mysore Act, (2) unlike the Mysore Act, the Bombay\tAct,\nmade  a distinction between the irrigated and  non-irrigated\nland (3) the Bombay Act while prescribing a maximum took the\nprecaution of also prescribing a minimum and the absence  of\nthe  latter  provision in the Mysore Act made a\t I  material\ndifference.\nHeld,  that  :\t(1)  the  Mysore  Tenancy  Act,\t 1952,\t was\nsubstantially  similar\tto Bombay Tenancy  and\tAgricultural\nLands Act, 1948, and that the question as to be whether s. 6\n(2)  of the Mysore Act was valid must be held to be  covered\nby  the decision the Vasantlal Maganbhai Sanjanwala  v.\t The\nState of Bombay<\/a> [1961] 1 S. C. R. 341.\tAccordingly,  s.6(2)\nof the Mysore Tenancy Act, 1952, was valid.\n(2)  on its true construction, s. 6(1) of the Mysore Tenancy\nAct, 1952, wag intended to apply to all agricultural  leases\nuntil  a notification was issued under s.6(2) in respect  of\nthe areas where the leased lands might be situated ; s\t6(2)\ncould  not,  therefore,\t be considered as  an  exception  to\ns.6(1) Consequently, the notification in question was valid,\n228\nMacbeth\t v. Ashley, (1874) L.R. 2 Sc.  App. 352,  considered\nand held inapplicable.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 537 of 1960.
\nAppeal from the judgment and order dated December 23,  1959,
\nof the Mysore High Court in Writ Petition No. 229 of 1955.
\nS.   S. Shukla and E. Udayarathnam, for the appellant.
\nH.   N.\t Sanyal, Additional Solicitor-General of  India,  R.
\nGopalakrishnan\tand P. D. Menon, for the respondents Nos.  1
\nand 2.\n<\/p>\n
R. Gopalakrishnan, for respondent No. 3<\/span><\/p>\n
1962.  April 18.  The Judgment of the Court was delivered by
\nGAJENDRAGADKAR,\t J.-This appeal arises from a writ  petition
\nfiled by the appellant, Raghutilaka Tirtha  Sripadangalavaru
\nSwamiji,  in the Mysore High Court challenging the  validity
\nof  s. 6 (2) of the Mysore Tenancy Act, 1952 (XIII of  1952)
\nhereafter called the Act, and the notification issued  under
\nthe said section on March 31, 1952.\n<\/p>\n
The appellant’s case as set out in his writ petition  before
\nthe High Court was that the impugned section as well as\t the
\nnotification  issued  under  it\t infringed  his\t fundamental
\nrights guaranteed under Arts. 14, 19 (1) (f), 26, 31 and 31A
\nof  the Constitution.  This contention has been rejected  by
\nthe High Court and it has been hold that the section and the
\nnotification  under challenge are valid and  constitutional.
\nThe  appellant then applied for a certificate from the\tHigh
\nCourt, both under Art. 132 and Art. 133 of the Constitution.
\nThe High Court granted him a certificate under Art. 133, but
\nrefused to certify the, case under Art. 132.  There
\n229<\/span>
\nafter  the  appellant applied to this Court for\t liberty  to
\nraise\ta   question  about  the   interpretation   of\t the
\nConstitution  and  permission  has  been  accorded  to\t the
\nappellant  accordingly.\t That is how the present appeal\t has
\ncome to this Court.\n<\/p>\n
The appellant owns 6 acres and 30 ghuntas of garden land  in
\nvillage Mulbagilu in Taluka Thirthahalli in the district  of
\nShimoga.  Respondent No. 3, Ramappa, Gowda, is his tenant in
\nrespect of this land.  A registered lease deed was  executed
\nin favour of respondent No. 3 by the appellant on March\t 11,
\n1943; under this document respondent No. 3 undertook to\t pay
\n82-1\/2\tmaunds of areca in addition to Rs. 17\/12-in cash  as
\nrent   per  year.   In\t1955  respondent  No.  3  filed\t  an
\napplication  before  respondent\t No.  2,  the  Tehsildar  of
\nThirthahalli,  under section 12 of the Act and claimed\tthat
\nthe standard rent payable by him to the appellant should  be
\nfixed  (Tenancy case 85 of 1955-56).   Meanwhile  respondent
\nNo.  1,\t the Government of Mysore, had, in exercise  of\t the
\npowers\tconferred  on  it  by s. 6  of\tthe  Act,  issued  a
\nnotification  No. R9. 10720\/- L. S. 73-54.2 on March  28\/29,
\n1955.  This notification purported to fix the standard\trent
\nfor  lands  of\tthe category to which  the  appellants\tland
\nbelongs\t at one third of the produce.  Feeling aggrieved  by
\nthis  notification  the\t appellant filed  the  present\twrit
\npetition  in the High Court on December 16, 1955,  His\tcase
\nwas that s. 6 (2) as well ‘as the notification issued  under
\nit were ultra vires, invalid and inoperative.
\nBefore dealing with the contentions raised before us by\t Mr.
\nShukla\ton behalf of the appellant it would be necessary  to
\nconsider  very briefly the scheme of the Act.  The  Act\t has
\nbeen passed by the Mysore Legislature because it was thought
\nnecessary to regulate the law which governs the relations of
\nlandlords and tenants of agricultural lands and to  regulate
\nand impose restrictions on the
\n230<\/span>
\ntransfer  of agricultural lands, dwelling houses, sites\t and
\nlands  appurtenant  thereto  belonging\tto  or\toccupied  by
\nagriculturists\tin  the\t State\tof  Mysore  except   Bellary
\nDistrict  and to make provisions for certain other  purposes
\nappearing in the Act.  That is the recital contained in\t the
\npreamble to the Act.  It would thus be seen that the primary
\nobject\tof  the Act is to afford much needed relief  to\t the
\nagricultural  tenants  by regulating  their  relations\twith
\ntheir  landlords  and in that respect the Act bears  a\tvery
\nclose  resemblance to the provisions of the  Bombay  Tenancy
\nand  Agricultural  Lands Act, LXVII of\t1948.\tIndeed,\t the
\nmaterial  provisions of the Act with which we are  concerned
\nare substantially similar.\n<\/p>\n
Chapter\t I  of the Act deals with the preliminary  topic  of
\ndefining  the  relevant terms used in the Act.\t Chapter  II
\ncontains general provisions regarding tenancies.  Section  4
\ndefines\t persons  who are deemed to be tenants.\t  Section  5
\nprovides that no tenancy would be for less than five  years.
\nSection\t 6  deals  with\t the maximum  rent  payable  by\t the
\ntenants.   Section  8 provides for the calculation  of\trent
\npayable in kind in the manner indicated by cls. (i) and (ii)
\nand prohibits the landlord from recovering or receiving rent
\ncalculated in any other manner.\t Under a,. 9 receipt of rent
\nin  terms  of service or labour is prohibited.\t Section  11
\nabolishes all ‘cases and s. 10 enables the tenants to  claim
\na  refund of rent which has been recovered in  contravention
\nof  the provisions of the Act.\tSection 12 then\t deals\twith
\nenquiries  with regard to reasonable rent.  Sub-section\t (3)
\nof  s. 12 lays down five factors which have to be  borne  in
\nmind  by the authority dealing with an application  for\t the
\nfixation  of reasonable rent.  Section 13 is a corollary  of
\ns. 12 and authorises the reduction of rent after  reasonable
\nrent has been determined under s. 12.  Section 14 deals with
\nsuspensions or remission of rent.  Section 15
\n231<\/span>
\nprovides  for  termination  of\ttenancy.   Under  s.  18   a
\nstatutory  bar is created against the eviction of  a  tenant
\nfrom  a\t dwelling house and under s. 19 the tenant  has\t the
\nfirst option of purchasing the site on which he has built  a
\ndwelling house.\t Similarly, under s. 22 the tenant is  given
\nan option of purchasing the land leased out to him.  section
\n24 deals with some cases where relief can be granted against
\ntermination  of\t tenancy  and  s.  25  with  relief  against
\ntermination of tenancy for non-payment of rent.\t Section  30
\nprovides  for  the  procedure  to recover  rent\t and  s.  31
\nprotects  the tenants’ rights under any other law.   Chapter
\nIII deals with the procedure and jurisdiction of Amildar and
\nprovides  for appeals against the decisions of the  Amildar.
\nChapter IV deals with offences and prescribes penalties\t for
\nthem and Chapter V contains miscelaneous provisions.   That,
\nin its broad outlines, is the nature of the provisions\tmade
\nby  the\t Act  in order to give relief  to  the\tagricultural
\ntenants.\n<\/p>\n
\t      Section 6 with which we are directly concerned
\n\t\t\t    in the present appeal reads thus:-\n<\/p>\n
\t      “6. (1) Notwithstanding any agreement,  usage,
\n\t      decree  or  order of a court or any  law,\t the
\n\t      maximum rent payable in respect of any  period
\n\t      after  the date of coming into force  of\tthis
\n\t      Act  by,\ta tenant for the lease of  any\tland
\n\t      shall not exceed one-half of the crop or crops
\n\t      raised on such land or its value as determined
\n\t      in the prescribed manner :\n<\/p>\n
\t      Provided\tthat  where  the  tenant  does\t not
\n\t      cultivate\t the land the rent payable shall  be
\n\t      the  reasonable  rent  to\t be  fixed  by\t the
\n\t      Amildar.\n<\/p>\n
\t      (2)   The\t Government may, by notification  in
\n\t      the  Mysore Gazette, fix a lower rate  of\t the
\n\t      maximum rent payable by the tenants of lands
\n\t      232<\/span>
\n\t      situate in any particular area or may fix such
\n\t      rate on any other suitable basis as they think
\n\t      fit.”\n<\/p>\n
As we have already indicated, the provisions of the two sub-
\nclauses of a. 6 are substantially similar to the  provisions
\nof  s.\t6  ( 1) and (2) of  the\t corresponding\tBombay\tAct.
\nIndeed,\t it would be correct to say that Act with  which  we
\nare concerned has been modelled on the pattern of the Bombay
\nAct  and has adopted most of its important provisions.\t The
\nvalidity  of  s. 6 of the Bombay Act was  challenged  before
\nthis Court in “VasantalMaganbhai Sanjanwala v. The State  of
\nBombay\t(1)” and it has been held that the said\t section  is
\nvalid.\t The  reasons given by this Court in  upholding\t the
\nvalidity  of is. 6 of the Bombay Act apply with equal  force
\nin support of the validity of s. 6 of the Mysore Act and  so
\nthe  point  raised  by\tthe  appellant\tin  challenging\t the
\nvalidity  of the impugned section is really covered  by\t the
\nearlier decision of this Court.\n<\/p>\n
Mr.  Shukla, however, contends that the preamble to the\t Act
\ndiffers from the preamble of the Bombay Act inasmuch as\t the
\nlatter preamble refers to the fact that that Act was  passed
\ninter  alia  for the purpose of improving the  economic\t and
\nsocial\tconditions  of peasants and ensuring  the  full\t and
\nefficient use of land for agriculture and so  considerations
\nof social justice on which the validity of the corresponding
\nprovision  of  the  Bombay Act was sought  to  be  sustained
\ncannot\tbe invoked in dealing with the present\tappeal.,  We
\nare  not  impressed by this argument.  It is true  that\t the
\npreamble  to  the Act merely says that the  Act\t was  passed
\nbecause\t it was though necessary to regulate the  law  which
\ngoverns\t  the\trelations  of  landlords  and\ttenants\t  of
\nagricultural lands and it does not refer to the\t requirement
\nof  social  justice  or does not  specifically\tmention\t the
\nobject of ensuring the full and efficient
\n(1)  [1961] 1 S.C.R. 341.\n<\/p>\n
233<\/span><\/p>\n
use  of\t land for agriculture.\tBut in dealing\twith  a\t law
\nwhich  has  been  passed for the  purpose  of  effecting  an
\nagrarian reform it would be pedantic to ignore the essential
\nbasis  of its material provisions merely on the ground\tthat
\nthe  concept of social justice on which the said  provisions
\nare  based  has not been expressly stated to be one  of\t the
\nobjects\t of  the  Act  in the  preamble.   We  have  already
\nexamined  briefly  the\tbroad scheme of the Act\t and  it  is
\nobvious\t that  the  important  provisions  of  the  Act\t are
\nintended  to improve the economic and social  conditions  of
\nthe agricultural tenants and so the policy of social justice
\ncan be safely said to be writ large on the face of the\tAct.
\nTherefore, we do not think that the argument based upon\t the
\nfact  that  the preamble does not refer\t to  social  justice
\ndistinguishes s. 6 of the Act from the corresponding section
\nof the Bombay Act.\n<\/p>\n
Then it is urged that unlike the Mysore Act, the Bombay\t Act
\nhas  distinguished between irrigated land and  non-irrigated
\nland  and  has\tprovided by s. 6(1) that  the  maximum\trent
\npayable in the case of irrigated land shall not exceed\tone-
\nforth  and in the case of other lands shall not exceed\tone-
\nthird of the crop of such land or its value as determined in
\nthe  prescribed manner.\t It is true that s. 6(1) of the\t Act
\nmakes  no  such\t distinction  between  irrigated  and\tnon-
\nirrigated lands.  But that, in our opinion, is not a  matter
\nof essential importance.  Like s. 6(1) of the Bombay Act  s.
\n6(1)  of  the  Act also intends to  provide  for  a  maximum
\nceiling\t beyond which agricultural rent will not be  allowed
\nto  soar and so far as the fixation of a maximum ceiling  of
\nrent  is  concerned it is not essential that  a\t distinction
\nmust  necessarily be made between. irrigated lands and\tnon-
\nirrigated  lands.   It must be borne in mind that  what\t the
\nsection does is to prescribe the maximum and not to  provide
\nfor a minimum In prescribing a maximum it may be open to the
\nLegislature to provide for a maximum which would be
\n234<\/span>
\ncommon to all lands whether irrigated or not, That is why we
\nare not inclined to attach any importance to the point\tthat
\nin the absence of classification of land, while\t prescribing
\na maximum s. 6(1) suffers from any infirmity.
\nThen  it is argued that the Bombay Act while  prescribing  a
\nmaximum\t has  taken  the precaution of\talso  prescribing  a
\nminimum\t and  the absence of the latter\t provision  makes  a
\nmaterial difference.  This argument is clearly misconceived.
\nIt  is\ttrue  that s. 8 of the Bombay  Act  which  had\tbeen
\ninserted  by the Bombay Legislature in 1956 did provide\t for
\nthe  maximum  and the minimum rent, but as the\tdecision  of
\nthis Court in the case of Sanjanwala (1) shows in  upholding
\nthe validity of the impugned provision of the Bombay Act  no
\nreliance  was placed upon the fixation of the minimum  rent.
\nIndeed,\t the  minimum  rent  was  fixed\t subsequent  to\t the
\ndecision  of  the High Court which was under  appeal  before
\nthis Court in that case and the fact that a minimum had been
\nprescribed subsequently has been only incidentally mentioned
\nin  the\t judgment.   Therefore the absence  of\ta  provision
\nfixing the minimum rent does not introduce any infirmity  in
\nthe  impugned provision.  We are, therefore, satisfied\tthat
\nthe case of the impugned section is substantially similar to
\nthe case of s. 6 of the Bombay Act with which this Court was
\nconcerned in the case of Sanjanwala (1) and the challenge to
\nthe  validity  of  section  in\tthe  present  appeal   must,
\ntherefore, be held to be covered by the said decision.
\nThat  takes  us to the question as to whether  the  impugned
\nnotification is invalid.  This notification has been  issued
\nin exercise of the powers conferred on the State  Government
\nby  s.\t6(2) and it provides that the rate of  maximum\trent
\npayable\t by  the  tenants of lands  situated  in  the  areas
\nspecified in Schedule I and Schedule If to the notification
\n235<\/span>
\nshall  be one-third and one-fourth respectively of the\tcrop
\nor  crops  raised on such lands with effect  from  the\tyear
\ncommencing  on April 1, 1955.  Schedule I deals with  Maidan
\nareas in which the maximum rent or rents shall be  one-third
\nof  the,  crop or crops and Schedule If deals  with  Malanad
\nareas in which the maximum rate of rent shall be  one-fourth
\nof the crop or crops raised.\n<\/p>\n
It  appears that the classification of lands between  Maidan
\nan Malanad lands is well known in Mysore.  Maidan lands\t are
\nlands  on  the plains, whereas Malanad are  lands  on  hilly
\ntracts.\t The distinction between the two categories of lands
\ntakes  into account the different conditions of\t rain  fall,
\nthe different nature of the cultivation, the difference’  in
\nthe living conditions and the availability of labour and the
\ndifference  in the quantity and the quality of the  produce.
\nIt  is\ttrue that the notification does\t not  prescribe\t the
\nlower rate of the maximum rent area by area in the sense  of
\ndistrict by district, but it purports to prescribe the\tsaid
\nmaximum by classifying the land in the whole of the State in
\nthe two well-known categories of Maidan and Malanad lands.
\nIt is urged by Mr. Shukla that the impugned notification  is
\ninvalid,  because it is inconsistent with the provisions  of
\ns.  6(1).  The argument is that s. 6(1) lays down a  general
\nrule  and  s.  6(2) provides for an exception  to  the\tsaid
\ngeneral\t rule.\tOn that assumption it is contended  that  an
\nexception  cannot be allowed to swallow up the general\trule
\nand that is precisely what the notification purports to\t do.
\nThis argument is based on the decision of the House of Lords
\nin Macbeth v. Ashley It would be noticed that this  argument
\nraises\tthe question about the construction of the two\tsub-
\nclauses\t  of  s.6.  Before  addressing\tourselves  to\tthat
\nquestion,
\n(1)  [1874] L.R. 2 SC.\tApp. 352.\n<\/p>\n
236<\/span><\/p>\n
however, we may refer to the decision of the House of  Lords
\non which the argument is based.\n<\/p>\n
It  appears that II o’clock at night was the hour  appointed
\nfor  closing public-houres in Scotland, although in  special
\ncases,\tand  for well considered reasons,  a  deviation\t was
\nallowed\t with  reference to any particular  locality  really
\nrequiring  it.\tThe Magistrates of Rothesay had ordered\t for
\nclosing at 10 instead of 11 and the effect of the order\t was
\nthat it embraced every public-house in the burgh.  The House
\nof  Lords held that the Magistrates order .was ultra  vires.
\nThe  statutory provision with which the House of  Lords\t was
\nconcerned was contained in the Act of Parliament, 25 and  26
\nVict. c. 35.  As a result of these provisions 11 o’clock  at
\nnight  was  appointed  to be the  hour\tfor  closing  public
\nhouses.\t There was however, a proviso which said inter\talia
\nthat  in any particular locality requiring other  hours\t for
\nopening and closing inns, hotels, and public houses it shall
\nbe lawful for such justices and Magistrates respectively  to
\ninsert\tin the schedule such other hours, not being  earlier
\nthan  six  or later than eight o’clock in  the\tmorning\t for
\nopening,, or earlier than nine o’clock or later than  eleven
\no’clock\t in the evening for closing the same as\t they  shall
\nthink fit.  It is in pursuance of the authority conferred on
\nthem  by the said proviso that the Magistrates\tof  Rothesay
\npassed an order embracing every public-house in the burge by
\nwhich  a  deviation  from the  statutorily  fixed  hour\t was
\neffected.\n<\/p>\n
In  dealing  with the validity of the order  issued  by\t the
\nMagistrates  Lord  Chancellor  Lord  Cairns  expressed\t his
\nopinion\t that if the exception is to swallow up the rule  it
\nceases, of course, to be an exception at all and that  which
\nmight fairly have been an exercise of discretion becomes  no
\nexercise  of the kind of discretion mentioned in the Act  of
\nParliament.  It was for this reason that the order
\n237<\/span>
\nissued\tby the Magistrates was declared to be  ultra  vires.
\nIt  was conceded that the Magistrates had a discretion,\t but
\nthe  Lord  Chancellor observed that  the  words\t “conferring
\ndiscretion”  expressly bear with reference to  a  particular
\nlocality and not with the whole burgh.\tWhat should be\ttrue
\nabout the whole burgh had been treated as a matter  reserved
\nfor  and  determined by the consideration  of  the  Imperial
\nParliament.  The Lord Chancellor did not express any opinion
\non  the-question as to whether the discretion vested in\t the
\nMagistrates  can  be exercised by them more  than  once\t but
\nwithout\t deciding that point he held that the order  of\t the
\nMagistrates really amounted to evading an Act of Parliament.
\nIn  substance,\tthe Magistrates had once for  all  attempted
\nwith  regard to all the public-houses in their\tdistrict  to
\nchange\tthe rule laid down by the Act of  Parliament.\tLord
\nChelmsford, who concurred with the opinion expressed by\t the
\nLord Chancellor, rested his conclusion on the ground that it
\nwas impossible to say that the limits which the\t Magistrates
\nhad  defined  could be called a particular  locality  within
\nburgh and so it appeared that what the Magistrates had\tdone
\nwas  something\tvery  like an attempt to evade\tthe  Act  of
\nParliament.   According\t to Lord  Selborne,  the  participle
\n“requiring” is connected with the substantive “locality” and
\ntherefore  it  must  be a requirement  arising\tout  of\t the
\nparticular  circumstances  of the place.  That is  why\tLord
\nSelborne thought that the Magistrates must in exercise of an
\nhonest and bona fide judgment, be of opinion that the
\nparticular locality which they ex(opt from the ordinary rule
\nis  one which, from its own special circumstances,  requires
\nthat difference to be made.\n<\/p>\n
It  would thus be seen that though the general basis of\t tHe
\ndecision,  as it has been expressed by Lord Cairne,  appears
\nto  be that the exception cannot swallow up the rule one  of
\nthe reasons which
\n238<\/span>
\nultimately  influenced the decision was that the  discretion
\nhad to be exercised bona fide and after due deliberation  in
\nrespect\t of  a particular locality and that  the  manner  in
\nwhich  the order was issued indicated that the\trequirements
\nof  the particular localities had not been duly examined  by
\nthe Magistrates.  It is significant that though Lord  Cairns
\nposed the question as to whether the discretion in  question
\ncan be exercised more than once, he did not choose to answer
\nit; but the trend of the opinions expressed by the Law Lords
\nduring the course of their speeches may seem to suggest that
\nthe discretion cannot be exercised more than once and in any
\ncase,  it  must\t be exercised by special  reference  to\t the
\nparticular  locality  as indicated by the  proviso.   If  an
\norder  is  made\t in respect of the whole of  the  burgh,  it
\ncannot be said that it has been passed after exercising\t due
\ndiscretion in respect of the requirements of each particular
\nlocality.   With respect, if the discretion is given to\t the
\nMagistrates  to\t provide  for  a  departure  from  the\trule
\nprescribed   by\t the  general  provision  by  reference\t  to
\nparticular  localities, it is not easy to see why  the\tsaid
\ndiscretion  cannot  be exercised more  than  once.   Indeed,
\nsituations  may\t arise\twhen the  Magistrates  may  have  to
\nconsider  the  matter  from  time  to  time  in\t respect  of
\ndifferent  localities and if it appears to  the\t Magistrates
\nconsidering the cases of different localities that in regard
\nto each one of them a departure from the general rule should
\nbe  made, it is not easy to follow why the proviso does\t not
\njustify different orders being passed by the Magistrates  in
\nrespect\t of  different but particular  localities.   On\t the
\nother hand, if the main provision is construed to mean\tthat
\nthe  time prescribed by it was to apply generally only\twith
\ncertain\t exceptions contemplated by the proviso, that  would
\nbe a different matter.\tHowever, it is not necessary for  us
\nto pursue this point further and to express a definite
\n 239<\/span>
\nopinion on the general proposition that an exception  cannot
\nswallow the general rule because, as we will presently show,
\nthis  rule  cannot be applied to the provisions of s.  6  at
\nall.   In  this connection we may, however, point  out\tthat
\nboth in Max- a well and in Craies, the decision in Macbeth’s
\ncase  (1) appears to have been treated as an  authority\t for
\nthe  proposition  that an order like the one passed  by\t the
\nMagistrates  in\t that  case amounted to an  evasion  of\t the
\nParliamentary statute, because it was not in honest and bona
\nfide exercise of the discretion vested in them. (Maxwell  on
\nInterpretation of Statutes, 11th Edn., p. 121, and Craies on
\nStatute Law, 5th Edn., p. 75.)
\nBut  assuming  that  the proposition for  which\t Mr.  Shukla
\ncontends on the authority of the decision in Macbeth’s\tcase
\n(1) is sound, does it apply to s. 6 at all and the answer to
\nthis  question\twill  depend upon the  construction  of\t the
\nprovisions  contained  in the two sub-clauses of  s.  6.  It
\nwould  be  noticed that s. 6(1) declares  a  maximum  beyond
\nwhich  no  landlord can recover rent from  his\ttenant.\t  In
\nother  words, as soon as the Act came into force  a  ceiling
\nwas fixed beyond which the landlord cannot recover rent from
\nhis  tenant  even though it may be justified  by  agreement,
\nusage,\tdecree\tor order of a court or any  other  law,\t The
\nprovisions  of\tthis  sub-section  apply  individually\t and
\nseverally   to\tall  agricultural  leases  and\tgovern\t the
\nrelations of individual landlords and tenants in respect  of
\npayment\t of rent by the latter to the former.  The  fixation
\nof  the maximum by sub-s. (1) is really not intended to\t lay
\ndown  a\t general rule as to what a landlord  should  recover
\nfrom  his  tenant  and it is in that sense  alone  that\t its
\nrelation to the provisions of sub-s. (2) must be judged.  In
\nthat  connection we may point out that there is one  proviso
\nto
\n(1) (1874) L. R. 2 S.C App 352.\n<\/p>\n
240<\/span><\/p>\n
cultivate  the land and it lays down that in their case\t the
\nrent shall be reasonable rent to be fixed by the Amildar.
\nSub-section (2) is so worded that in terms it cannot be said
\nto  be\ta proviso to sub-s. (1) add in substance it  is\t not
\nsuch a proviso nor is it an exception to sub-s. (1).  Having
\nprescribed the maximum beyond which agricultural rent cannot
\ngo under a.    6(1)   the  legislature\thas  premitted\t the
\nGovernment to  fix  a  lower  rate of the  maximum  rent  in
\nrespect of     lands  situated\tin  particular\tareas.\t The
\nGovernment  has also been authorised to fix the\t payment  of
\nrent on any other suitable basis as it thinks fit.  In other
\nwords,\tthe authority conferred on the Government is  either
\nto  fix a lower rate or to fix any other basis on which\t the
\nrent  could  be\t fixed.\t The  provision\t is  an\t independent
\nprovision  and\tso  the two sub-sections  must\tbe  read  as
\ndifferent, independent, though coordinate, provisions of the
\nStatute.   It would, we think, be erroneous to treat  sub-s.
\n(2) as a proviso or exception to sub-s. (1).  Whereas sub.a.
\n(1)  deals with and applies to all leases  individually\t and
\nprescribes a ceiling in that behalf, sub-s. (2) is intend to
\nprescribe  a maximum by reference to different areas in\t the
\nState.\tThe object of both the provisions is no doubt  simi-
\nlar  but  it is not the same and the relation  between\tthem
\ncannot\tlegitimately be treated as the relation between\t the
\ngeneral rule and the proviso or exception to it.
\nThe argument that by issuing the notification the Government
\nhas purported to amend a. 6(1) is, in our opinion, not well-
\nfounded.   As we have already seen, a. 6(1) is\tintended  to
\napply to all the agricultural leases until a notification is
\nissued\tunder  a.  6(2) in respect of the  areas  where\t the
\nleased lands may be situated.  It is not suggested that
\n 241<\/span>
\nunder  s. 6(2) it is necessary that the Government must\t fix
\nthe  lower  rates by reference to individual  lands  and  so
\nthere can be no doubt that even on the appellant’s  argument
\nit would be competent to the Government to fix lower  rents,
\nsay districtwise.  If instead of prescribing the lower rates
\ndistrictwise after classifying the lands into two categories
\nwhich  are  well recognised, the Government  prescribed\t the
\nrates\tby  reference  to  the\tsaid  categories  of   lands
\nthroughout   the  State,  we  do  not  see  how\t  the\tsaid
\nnotification can be said to be inconsistent with s. 6(2)  or
\nwith  s. 6( 1) either.\tThe scheme of s. 6 does not seem  to
\npostulate  that after the notifications are issued under  s.
\n6(2)  some area must inevitably be left to be covered by  s.
\n6(1).\tSuch  an assumption would be inconsistent  with\t the
\nobject\tunderlying the said provision itself.  What s.\t6(1)
\nhas  done is to fix a general ceiling apart from  the  areas
\nand without considering the special factors appertaining  to
\nthem.\tHaving thus fixed a general ceiling the\t Legislature
\nrealised  that the ceiling may have to be changed from\tarea
\nto area and so power was conferred on the Government to\t fix
\nthe ceiling at a lower rate, The Government having  examined
\nthe  matter came to the conclusion that the  more  equitable
\nand  reasonable\t course\t to adopt would\t be  to\t divide\t the
\nagricultural  lands into two well-known categories  and\t fix
\nthe ceiling by reference to them.  Now in the very nature of
\nthings,\t the  Legislature  must have  anticipated  that\t the
\nexercise  of  the power under a. 6(2) might  cover  all\t the
\nareas  in  the\tState and that may  mean  that\tthe  general
\nceiling\t prescribed  by s. 6(1) may not apply  to  any\tland
\nwhich  is covered by the notification.\tIf s. 6(1) is not  a
\ngeneral rule and s. 6(2) is not an exception to it, then the
\nconsequence   flowing  from  the  issue\t of   the   impugned
\nnotification   cannot  be  characterised  as  an   exception
\nswallowing up the
\n242<\/span>
\ngeneral\t rule.\t That, in substance, is the view  which\t the
\nMysore High Court has taken in the matter and we think\tthat
\nthe said view is right.\n<\/p>\n
In  the\t result.,  the appeal fails and\t is  dismissed\twith
\ncosts.\n<\/p>\n
Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sree … vs The State Of Mysore And Others on 18 April, 1962 Equivalent citations: 1966 AIR 1172, 1963 SCR (2) 226 Author: P Gajendragadkar Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Ayyangar, N. Rajagopala, Aiyyar, T.L. Venkatarama PETITIONER: SREE RAGHUTHILAKATHIRTHASREEPADANGALAVARU SWAMIJI Vs. RESPONDENT: THE STATE OF MYSORE AND OTHERS […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-246042","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSree ... vs The State Of Mysore And Others on 18 April, 1962 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sree-vs-the-state-of-mysore-and-others-on-18-april-1962\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sree ... vs The State Of Mysore And Others on 18 April, 1962 - 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