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Judgment
Bhimasankaram, J.—The question raised by these 8 (sic)ond appeals is as to whether the following under issued by the Government of Madras on (sic)-1950 in purported exercise of the power vested them u/s 68 of the Madras Estates abolition and Conversion into Ryotwari) Act KVI of 1948 is intra vires. It runs thus :
ORDER
The Government have carefully (sic)nined the points raised by the Board of Re(sic)lue in its proceedings above. They are advised it the collection of arrears of "Moturpha" in ates taken over by the Government under the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 can be treated as a difficulty (sic)sing in carrying out the provisions of the Act (sic) that it will not be illegal to issue an order (sic)der Section 68 of the Act empowering Managers estates to collect arrears of "mothurpha" ac-ed due to landlords and outstanding on the (sic)ifled date. They also consider that the posi(sic)i will be the same in regard to other items of miscellaneous revenue as well They accordingly (sic)s the following order u/s 68 of the.
Whereas u/s 55 (1) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI Of 1948) the (sic)nager appointed u/s 6 of the said is entitled to'' collect only the rent which ac(sic)sd due to the land-holder from any ryot be(sic)j, and was outstanding on the notified date; whereas "moturpha" and other similar items miscellaneous revenue will not be ''rent'' for the (sic)pose of the said Section 55 (1) and cannot therefore be collected by the said Manager : And whereas the difficulty has consequently (sic)sen in the matter of collection of arrears of moturpha" and other similar items of miscellaneous revenue;
Now, therefore, in exercise of the powers con(sic)ed by Section 68 of the said Act, His Excei(sic)y the Governor of Madras hereby directs that said Manager shall collect the arrears of "moturpha" and other similar items of Miscellaneous revenue which accrued due to land-holder (sic) any ryot or any other person before, and outstanding on, the notified date as if they (sic) arrears of land revenue and that the amounts collected shall be paid to the land-holder after (sic)icting 10 per cent thereof as collection char.
The Board of Revenue is requested to in(sic)ct, all Collectors concerned not to refund to land-holders the amounts already collected by Managers as "moturpha" or other items of miscellaneous revenue or adjust them towards any the payment due from.
(By order of His Excellency the Governor)"
(2) Now it is to be noticed that Section 55(1) the Act expressly empowers the Government, the notified date, to collect arrears of rent to a land-holder from any ryots and outstanding on that date and provides for payment of the (sic)nt so collected, subject to certain deduction, (sic)e land-holder. There is no such provision (sic)ever in regard to arrears in respect of other (sic)s of dues such as Jodi, Kattubadi, "moturpha" and other miscellaneous revenue derived from other sources in the estate. When the absence of any such provision was brought to the notice of the Government they were advised that they could deal with the situation as if a difficulty arose in the working out of the Act and they therefore purported to meet by issuing the above-mentioned Government Order.
Now in order to understand the scope of the argument advanced on behalf of the Government, it is necessary to bear in mind Section 1(4) and 3 (a) and (b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948. Section 1 (4) of the Act says :
1 (4) This Section and Sections 2, 4, 5, 7. 8, 9 (58-A), 62, 67 and 68 shall come into force at once; and the rest of this Act shall come Into force in regard to any zamindari, under-tenure or inam estate, on such date as the Government may, by notification, appoint." Section 3 (a) and (b) are as follows
E. With effect on and from the notified date and save as otherwise expressly provided in this Act;
(a) the Madras Permanent Settlement Regulation, 1802, the Estates Land Act, and all other enactments applicable to the estate as such except the Madras Estates Land (Reduction of Rent) Act 1947, shall be deemed to have been repealed in their application to the estate;
(b) the entire estate (including all communal lands and porambokes; other non-ryoti lands; waste lands; pasture lands; lanka lands; forests, mines, and minerals; quarries; rivers and streams; tanks and irrigation works; fisheries; and ferries) shall stand transferred to the Government and vest in them, free of all encumbrances; and the Madras Revenue" Recovery Act, 1864, the Madras Irrigation Cess Act, 1865 and all other enactments applicable to ryotwari areas shall apply to the estate;
XX X
It is clear that there is no provision that the rights of the zamindar in regard to arrears either of rent or of any other kind of dues are vested in the Government. The Act does not say anywhere that the zamindar loses the right to any amount due and outstanding on account of these charges on the date of the notification. Of course after the date of the notification, he cannot collect any rent as such nor can he collect any of the charges also. But his right to collect arrears actually accrued is not interfered with by any provision in the Act except by Section 55 (1) and Section 55 (1), as already noticed, is limited to the right to collect arrears of "rent."
The word "rent" used in this section must be understood in the sense in which it is defined in the Madras Estates Land Act, because section 2(1) of the Madras Estates (Abolition and Conversion into Ryotwari) Act says that "all expressions defined in the Estates Land Act shall have the same respective meanings as in that Act with the modifications, if any, made by this Act" unless, of course, there is anything repugnant in the subject or context. The very fact that Section 55 (1) expressly provides for the collection of the arrears of rent due before and outstanding on the date of the notification necessarily implies that the legislature did not intend to confer on the Government the right to collect any other kind of arrears.
If that position is right, then by authorising their officers under this Government Order, to collect such amounts, the Government is not meeting any difficulty created in the working cut of this Act but is making a supplemental provision. It is adding, so to say, a new section authorising the collection. An endeavour is made by this Government Order to extend the scope of Section 55 (1) so as to include within it not only rent but also other kinds of amounts in arrears. a procedure which is clearly ultra vires the powers vested in them u/s 68 of the Act. To my mind the matter is clear beyond a shadow of a doubt. The lacuna in the Act should have been supplied by legislative and not by executive action.
It is unnecessary in this view to discuss the other points argued by Mr. Chandrasekhara Sastry, learned counsel for the respondents. He would say that even if the Government Order is ''intra vires'' it does not enable the Government to collect dues in respect of temporary leases relating to lanka lands within the ambit of a zamindary. He says that the language Of the Government Order is not wide enough to include such collections. He has also raised a point that the Government Order being intended to be enforced as law should have been published u/s 7 of the Madras General Clauses Act. It is unnecessary for me in the view I have taken to discuss these points. I agree with the lower appellate court that the Government Order in question was beyond the powers of the Government of the State of Madras.
The result is that these second appeals fail and are dismissed with costs. Advocate''s fee Rs. 35/- in each appeal. Leave granted.