TMI Blog1954 (7) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Bombay that they were not liable to pay to the petitioner this cess. Thereupon on March 27, 1954, the petitioner addressed a letter to the Collector of Ahmedabad and called upon him to render him assistance to recover this cess under the provisions of Section 86 of the Land Revenue Code. The Collector replied on the same day stating that according to Section 86 of the Land Revenue Code assistance could be granted for recovery of land revenue or rent only, and as the petitioner was seeking assistance for recovery of local fund cess from his tenants, the assistance asked for could not be granted and therefore the application of the petitioner was not admitted. On receiving this reply the petitioner came to Court with this petition. 2. Now, turning to the legal provisions, we must first turn to the Local Boards Act, and Section 93 of that Act empowers the State Government to levy a cess of 3 annas on every rupee. Section 90 provides that the cess shall be levied, so far as may be, in the same manner, and under the same provisions of law, as the land revenue. Section 98 provides : The provisions of law relative to the assistance to be given to superior holders and owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner is that unless the Collector is of the opinion that the question at issue between the parties is of a complicated or difficult nature, it is incumbent upon him under Sub-section (2) to pass an order rendering assistance to the petitioner, and it is pointed out that when the application was made by the petitioner under Sub-section (1) of Section 87 the Collector did not refuse assistance on the ground that the issue between the parties was of a complicated or difficult nature, but refused assistance on the ground that what the petitioner was seeking to recover was not rent but local fund cess. It is urged that the Collector in sending his reply obviously overlooked the provisions of Section 98 of the Local Boards Act and confined his attention only to Section 86 of the Bombay Land Revenue Code. Therefore, the refusal on the part of the Collector was not due to any exercise of discretion on his part, but was due to his taking the view that the petitioner was not entitled to the relief at all. It is rather curious to note that it is only in the affidavit of Mr. Bakhle that he points out in para. 7 that when the question which arises between the parties is of a complicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplicated character that it would not be right to compel the tenants to pay the amount claimed but that the parties should be referred to litigate their rights in a civil Court. But the right of the petitioner to claim assistance can only arise provided he satisfies us that he is entitled to claim this local fund cess from the tenants, and the contention of the Advocate General is that on a true construction of Section 11 of the Tenancy Act the landlord is not so entitled. 4. Now, turning to Section 11, it provides : Notwithstanding any agreement, usage or law, it shall not be lawful for any landlord to levy any cess, rate, vero, huk or tax or service of any description or denomination whatsoever from any tenant in respect of any land held by him as a tenant other than the rent lawfully due in respect of such land. Before we construe Section 11 it would be perhaps advisable once again to look at the general scheme of the Tenancy Act with regard to the rights of the tenants and also the rights of the landlords. The broad scheme of the Act is that a landlord is not entitled to charge any rent in excess of the maximum rent which Government may fix under Section 6(1). If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition to the rent lawfully reserved under the lease. We do not think it is seriously disputed that prior to the Tenancy Act many landlords imposed various cesses or rates or huks or taxes upon their tenants, and it seems to us clear that the intention of the Legislature was that there should be no liability upon a tenant to pay anything more than the rent reserved under the lease subject to the maximum laid down in Section 6. It is rather significant to note that in the definition of rent , rendering of personal services or labour is excluded, so that if a tenant were to agree with his landlord to render any service as consideration for the demise, that would not constitute rent , and therefore in Section 11 there is a specific ban upon the landlord imposing any service of any description upon the tenant. As service is looked upon under the Act as something outside the region of rent, the Legislature had specifically to deal with it and it has prohibited the imposing of any service upon the tenant by the landlord. It is difficult to understand, if what the Advocate General says is correct that the intention of the Legislature was not merely to prevent the landlord from imposing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentions the amount of the cess and the landlord becomes entitled to receive from the tenant an amount, corresponding to the cess which he is liable to pay under the agreement. But what the landlord in law receives from the tenant and what the tenant in law pays to the landlord is not a cess but is the rent reserved under the agreement. It is rightly pointed out that the consideration paid by the tenant in this case for the use and occupation of the land was two-fold. One was the payment of an amount which is described as rent and the second was the payment of the local fund cess. The payment of the local fund cess was as much a part of the consideration as the amount described as rent, and it is pointed out that when one turns to the definition of rent in the Act it means any consideration in money or kind or both paid or payable by a tenant on account of the use or occupation of the land held by him, and it is suggested that there can be no dispute whatsoever in this case that the tenant agreed to pay the local fund cess as consideration for the use and occupation of the land. There was no obligation on him to pay the local fund cess, the obligation was upon the landlord, he to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the learned Chief Justice at p. 437. He quotes the definition of rent in Woodfall on Landlord and Tenant (25th edn.) and he says that it is a retribution or compensation for the lands demised (p. 330): Rent must always be a profit.... This profit must also be certain, or capable of being reduced to a certainty by either party, and must issue out of the thing granted, and not be part of the land, or thing Itself.... The learned Chief Justice applies this test to the case before him and he says (p. 437). ...it appears to us that the only profit for the lands demised which the landlord would realize is the half of the produce, and that ₹ 16-8-0 is not part of the profit. It is a liability attaching to the thing itself in the hands of the lessor. With very great respect, it is difficult to understand why the discharge by the tenant of the obligation of the landlord to pay assessment in respect of this very land was not a profit derived by the landlord from the levy. Surely, if the landlord was relieved of his obligation to pay assessment by reason of the lease and that obligation was undertaken by the tenant, it was a profit which the landlord derived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... landlord was recovering even in that wider sense was not cess but rent, and if that rent was below the maximum laid down in Section 6(1), then it was lawful rent and there is nothing in the Tenancy Act which prevents the landlord from recovering rent lawfully reserved under the lease. 9. Now, we would have proceeded, after having heard careful and elaborate arguments both by Mr. Palkhivala and the Advocate General, to decide this question one way or the other. But the Advocate General has drawn our attention to the fact that in this petition the tenants are not represented. Mr. Palkhivala contends that as all that he seeks is a mandamus against the Collector, if we are satisfied that there is a statutory duty cast upon him we must issue the mandamus and no other party is entitled to be heard. Now, the matter is not so simple as that. The statutory duty of the Collector only arises provided there is a liability upon the tenants to pay the cess to the landlord, and the contention of the Government is that there is no such liability. Therefore, before we can proceed to issue a mandamus and indeed before we can proceed to decide that there is any statutory duty upon the Collector t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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