Indian Aluminium Co. Ltd., Hirakud Vs. State of Orissa and ors.

Decided On : Apr-22-1991

Court : Orissa

Notice (8): Undefined index: topics [APP/View/Case/meta.ctp, line 36]
Code Context


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			'appealno' => 'F.A. No. 468 of 1982',
			'appellant' => 'Indian Aluminium Co. Ltd., Hirakud',
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			'casename' => 'Indian Aluminium Co. Ltd., Hirakud Vs. State of Orissa and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  Defendants further contend that the suit is bad for non-compliance of Section 80 of the Code of Civil Procedure and the Civil Court has no jurisdiction in view of the relief being available to the plaintiff under Section 22(2)(b) of the Orissa Survey and Settlement Act. (4) of Section 19 clearly indicates that the provisions of the section shall have effect notwithstanding anything contained in any law, custom or contract for the time being in force. Since under the Central Provinces Tenancy Act as well as the Orissa Land Reforms Act, the land does not include urban non-agricultural land and plaintiff having used the land under the lease deed for non-agricultural purposes, the Act will have no application. I am unable to persuade myself to accept this submission, inasmuch as Sub-section (2) of Section 19 of the Act clearly stipulates for prescribing principles for fixing of fair and equitable rent of lands used for purposes other than agriculture. In this connection it is necessary to notice the rule-making power as well as the requirement of law to lay the Rules before the Assembly. Atlas Cycle Industries's case (AIR 1979 SC 1149) (referred to supra) as well as under Section44 of the Orissa Survey and Settlement Act is different. after an exhaustive review of the case law as well as the text books on constitutional law, held as follows :The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or legislature to control delegated legislation. It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rule shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated. But the Parliament or the Legislature, as the case may be if they intended to make that rule mandatory, they would have clearly mentioned the legal consequences of its non-compliance as they have done in other cases. 9. All the contentions having failed, this appeal fails and is dismissed, but in the circumstances, without any order as to costs.',
			'caseanalysis' => null,
			'casesref' => 'D.K. Krishnan v. Secretary;',
			'citingcases' => '',
			'counselplain' => 'R.K. Mohapatra, Adv.',
			'counseldef' => 'Adv. General',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1991-04-22',
			'deposition' => 'Appeal dismissed',
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			'judge' => 'G.B. Patnaik, J.',
			'judgement' => '<p style="text-align: justify;">G.B. Patnaik, J.</p><p style="text-align: justify;">1. Plaintiff is the appellant against the judgment and decree of the Subordinate Judge, Sambalpur, in Title Suit No, 21 of 1981 for declaration that plaintiff is not liable to pay any rent under the provisions of the Orissa Survey & Settlement Act for the lands described in Schedule A of the plaint and for a declaration that defendant No. 1 and its officers have no jurisdiction to fix, assess or realise rent from the plaintiff under the Orissa Survey & Settlement Act.</p><p style="text-align: justify;">2. Plaintiff's case, in brief, is that under two registered lease deeds dated 20-11-1962 and 25-5-1964 executed by the Deputy Commissioner, Sambalpur for the defendants and the Managing Director of the plaintiff-Company, the disputed lands had been given on lease to the plaintiff on an annual rent of Rs. 25/ - per acre with a proviso that the rent is liable to be enhanced after expiry of 25 years not exceeding 50 per cent of the rent payable at the time of enhancement. Notwithstanding the aforesaid terms and conditions of the lease deed, the defendants and their officers served notice on the plaintiff to enhance the rent under the Orissa Survey and Settlement Act, 1958. The plaintiff alleges that no such rent or land revenue can be assessed in respect of the lands under the Survey and Settlement Act as the plaintiff holds the lands under a special contract with the State of Orissa. The plaintiff also alleges that no rules having been framed under the provisions of the Orissa Survey & Settlement Act in accordance with law, the defendants have no jurisdiction to enhance the rent under law. When notice was served upon the plaintiff by the defendants and plaintiff came to know that defendants were bent upon enhancing the rent, the plaintiff filed the suit for the reliefs already stated.</p><p style="text-align: justify;">3. The defendants filed their written statement taking the stand that the plaintiff is a tenant in respect of the lands which have been leased out to the plaintiff and under the Orissa Survey and Settlement Act, fair and equitable rent can be fixed under Section 19 of the Act as also under the Rules framed thereunder. According to the defendants the terms of the lease deed do not prohibit assessment of fair and equitable rent under Section 19 of the Act and Sub-section (4) of Section 19 fully empowers the Assistant Settlement Officer to fix fair and equitable rent in respect of lands held by a tenant under lease. It is also pleaded that defendants 2 and 3 have taken up the proceedings for fixation of fair and equitable rent. The defendants also contend that rules have been framed for assessment of rent for non-agricultural lands legally and defendant No. 2 has, therefore, jurisdiction to fix the rent. Defendants further contend that the suit is bad for non-compliance of Section 80 of the Code of Civil Procedure and the Civil Court has no jurisdiction in view of the relief being available to the plaintiff under Section 22(2)(b) of the Orissa Survey and Settlement Act. It is also urged that the first rent roll not having been published, the suit is hit under Section 29(2) and Section 42(1) of the Orissa Survey and Settlement Act.</p><p style="text-align: justify;">4. On these pleadings, seven issues were framed and an issue No. 1 it has been held that the plaintiff was granted lease for Schedule 4 lands for 99 years on the condition that plaintiff pays annual rent of Rs. 25/ - per acre and observes other conditions of the lease agreement and accordingly the lease is not a permanent lease, nor the rent fixed is permanent. On issues Nos. 2 and 3, the trial court has found that the plaintiffs contention that the plaintiff is not a tenant cannot be and under the provision of Section 19 of the Orissa Survey Settlement Act, fair and equitable rent can be assessed and the officers under the Orissa Survey Settlement Act can take up revision of rent of the lands. On issue No. 4, the trial Court has found that rent not having been fixed or published, the civil Court has no jurisdiction to grant any relief. On issue No. 5, the trial Court has found that Rule 48 of the Orissa Survey & Settlement Rules authorises assessment of rent on non-agricultural lands and the said Rules have been duly published in the Orissa Gazette and, therefore, are operative. On issue No. 6, the trial Court has found that defendants 2 and 3 have jurisdiction and authority to assess rent under the Orissa Survey & Settlement Act. On issue No. 7, the trial Court has found that the Civil Court has no jurisdiction to grant any relief at this stage and accordingly the plaintiff is not entitled to the reliefs prayed for by it. On these findings the suit having been dismissed, the plaintiff has preferred the present first appeal.</p><p style="text-align: justify;">5. Mr. Mohapatra, the learned counsel for the plaintiff-appellant argues with vehemence that Section 19 of the Act has no application in respect of the suit lands which have been held by the plaintiff on the basis of a special contract between the State and the plaintiff and, therefore, the authorities under the Orissa Survey & Settlement Act have no jurisdiction to assess fair and equitable rent in respect of the land in question. He further argues that 'non-agricultural land' will not come under the purview of the Orissa Survey & Settlement Act. Lastly he argues that the amended Rules framed in 1976 not having been laid before the Orissa Legislature Assembly for the period required under Section 44 of the Act, those are not validly framed Rules and, therefore, the authorities have no jurisdiction to assess rent under an invalid set of Rules.</p><p style="text-align: justify;">The learned Advocate General appearing for the State, on the other hand, submits that Section 19 of the Orissa Survey and Settlement Act applies to the lands held by the plaintiff in view of Sub-section (2) thereof. The learned Advocate General also contends that the Government having prescribed the principle for fixation of fair and equitable rent for lands used for any purpose other than agriculture and having framed Rules to that effect, the officers under the Orissa Survey & Settlement Act had the jurisdiction to issue notice to the plaintiff. Lastly he argues that the prescription contained in Section 44 of the Act to lay the Rules before the Legislative Assembly for a period of 15 days is directory and not mandatory and, therefore, even if the amended Rules of 1976 have not been laid before the Assembly, it cannot be held that the Rules are invalid and inoperative. The rival contentions require careful examination of the law on the subject.</p><p style="text-align: justify;">6. Coming to the first submission of Mr. Mohapatra, the main plank of his arguments is that the State having entered into an agreement with the plaintiff and having granted a lease for a specified period on specified terms, the provisions of the Orissa Survey and Settlement Act will not apply to those lands and, therefore, the authorities under the Act have no jurisdiction to enhance the rent. This argument in my considered opinion is without any substance. The provisions of the Orissa Survey and Settlement Act apply to the whole of the State of Orissa. The plaintiff is a person who holds land under the State and is also liable to pay rent to the State. Section 19 authorises the Government to prescribe principles for fixing fair and equitable rent for any land used for agriculture and Section 19(2) authorises the Government to prescribe the principles for fixing of fair and equitable rent for lands used for any purpose other than agriculture. Sub-s. (4) of Section 19 clearly indicates that the provisions of the section shall have effect notwithstanding anything contained in any law, custom or contract for the time being in force. This being the position, Subsection (4) of Section 19 must be held to override any contract between the plaintiff and the State with regard to payment of rent and consequently, if the State Government has prescribed principles for fixing of fair and equitable rent in respect of lands used for purposes other than agriculture, as in the present case, then those principles would apply notwithstanding the contract between the State and the plaintiff. The first submission of Mr. Mohaptra, the learned counsel for the appellant, is accordingly rejected.</p><p style="text-align: justify;">7. Coming to the second submission, according to Mr. Mohapatra, the expression 'land' used in the Orissa Survey and Settlement Act should receive the same meaning as is defined in the Central Provinces Tenancy Act, the said expression not having been defined under the Orissa Survey and Settlement Act and should also have the same meaning as in the Orissa Land Reforms Act. Since under the Central Provinces Tenancy Act as well as the Orissa Land Reforms Act, the land does not include urban non-agricultural land and plaintiff having used the land under the lease deed for non-agricultural purposes, the Act will have no application. I am unable to persuade myself to accept this submission, inasmuch as Sub-section (2) of Section 19 of the Act clearly stipulates for prescribing principles for fixing of fair and equitable rent of lands used for purposes other than agriculture. In view of the aforesaid provision and there being no embargo on the power of the authorities under the Survey and Settlement Act not to apply the said Act to urban lands or to lands not used for agriculture, there is no substance in Mr. Mohapatra's argument that the Act does not apply to the lands in question. I have accordingly no hesitation to reject the second submission of Mr. Mohapatra, the learned counsel for the appellant.</p><p style="text-align: justify;">8. Mr. Mohapatra, the learned counsel for the appellant, however, argues with substantial force that the amending Rules not having been laid before the assembly for a period of 15 days as required under Section 44 of the Act, the Rules are invalid and inoperative and the authorities under the Rules lack inherent jurisdiction to assess rent on the plaintiff's lands. In course of hearing of this appeal, at the request of the learned Advocate General, the hearing of the matter had been adjourned to find out whether in fact the Rules had been laid before the Legislative Assembly for a period of 15 days and notwithstanding time having been granted, the learned Advocate General could not produce any materials to indicate that the Rules in fact had been laid before the Legislative Assembly. In the circumstances, and in view of the positive assertion of the plaintiff that the Rules had not been laid before the Assembly for a period of fifteen days in paragraph-8 of the plaint, which has not been denied in the written statement, it must be held that the Rules had not been laid before the Legislative Assembly for 15 days. The question that arises for consideration, therefore, is whether the requirement of laying the Rules before the Assembly is directory or mandatory. If it is held that the requirement is mandatory then certainly the Rules will not have any operational force on account of the infraction in question, but if it is held that the requirement is merely directory, then the Rules will be valid and operative even though the same had not been laid before the Assembly as required under law.</p><p style="text-align: justify;">In this connection it is necessary to notice the rule-making power as well as the requirement of law to lay the Rules before the Assembly. Section 43 of the Act is the power of the State Government to make Rules after previous publication. Sub-section (1) of Section 43 is extracted herein below in extenso :--</p><p style="text-align: justify;">'The Government may, after previous publications, make rules for the purpose of carrying out the provisions of this Act.'</p><p style="text-align: justify;">Section 44 of the Act is the requirement of the Rules to be laid before the Assembly. The said provision is extracted hereinbelow in extenso :--</p><p style="text-align: justify;">'All rules made under Section 43 shall be laid as soon as possible after they are made before the Orissa Legislative Assembly for a total period of fifteen days which may be comprised in one session or in two or more sessions, and shall be subject to such modification as the Assembly may make during the said period.'</p><p style="text-align: justify;">The aforesaid provision enjoins that all rules made under Section 43 shall be laid as soon as possible after they are made before the Orissa Legislative Assembly for a period of 15 days and shall be subject to such modification as the Assembly may make during the said period. According to Mr. Mohaptra, the expression 'shall' in Section 44 and the provision in Section 44 making the rules subject to any modification as the Assembly may make during the said period of 15 days for which the rules are to be laid before the Assembly, make the legislative intent quite clear and the requirement of laying must be held to be mandatory and not directory. Where a statute directs that the rules shall be laid before the Legislature, whether such direction is mandatory or directory depends upon several considerations notwithstanding the use of the expression 'shall'. The requirement can be held to be directory where no penalty has been attached under the statute for non-laying the Rules before the Assembly and where serious general inconvenience and prejudice would result to the public if the Rules are declared invalid for non-compliance of the particular provision. The policy underlying the provision relating to laying of a delegated legislation made by the subordinate law-making authority before the Legislature is to provide control over the aforesaid authority by the Legislature. According to Craies on Statute Law, there are three kinds of laying: (i) laying without further procedure; (ii) laying subject to negative resolution; and (iii) laying subject to affirmative resolution. This question of the requirement of a statute to lay the Rules before the Parliament or Legislative Assembly whether is directory or mandatory has been considered by the Supreme Court in the case of Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149. Several authorities on the question) have been considered by their Lordships of the Supreme Court in relation to such requirement in different statutes. Considering Sub-section (6) of Section 3 of the Essential Commodities Act, their Lurdships have held that the Legislature never intended that non-compliance of the requirement of laying should render the order void. According to Mr. Mohapptra, this decision will have no application to the present case, is as much as Section 3(6) of the Essential Commodities Act merely directed that the Order made under Section 3 by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be after it is made. It did not provids that the Order shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide, nor did it specify the period for which the Order was to be laid before both Houses of Parliament. But in the instant case Section 44 of the Orissa Survey and Settlement ACT provides in no uncertain terms that the Rules shall be laid for a period of 15 days and it shall be subject to such modification as the Assembly may make during the said period. According to Mr. Mohapatra this brings out the difference and in the context it must be held that the requirement of laying the Rules before the Assembly under Section 44 of the Act is a mandatory requirement. No doubt, the requirement made under Section 3(6) of the Essential Commodities Act with which their Lordships of the Supreme Court were concerned in M/s. Atlas Cycle Industries's case (AIR 1979 SC 1149) (referred to supra) as well as under Section44 of the Orissa Survey and Settlement Act is different. But in the very case their Lordships of the Supreme Court approved the decision of the Andhra Pradesh High Court in the case of D.K. Krishnan v. Secretary, Regional Transport Authority, Chittoor, AIR 1956 Andh Pra 129, where the validity of Rule 134-A of the Madras Motor Vehicles Rules, 1940, made under the Motor Vehicles Act, 1939 was challenged on the ground that it was not laid before the Legislature of the Madras State as required under S, 133(3) of the Act. Section 1333) provided that the Rules shall be laid for not less than fourteen days before the Legislature as soon as possible after they are made and shall be subject to modification as Parliament or such Legislature may make during the session in which they are so laid. Subba Rao, J. after an exhaustive review of the case law as well as the text books on constitutional law, held as follows :--</p><p style="text-align: justify;">'The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or legislature to control delegated legislation. That control is sought to be effected by directing the rules or regulations made by the delegated authority to be laid before the Parliament.</p><p style="text-align: justify;">Where the statute makes the laying of the rules before Parliament a condition precedent or the resolution of the Parliament a condition subsequent, there is no difficulty as in the former case, the rule has no legal force at all till the condition precedent is complied with and in the latter case, it ceases to have force from the date of non-compliance with the condition subsequent.</p><p style="text-align: justify;">Nor can there be any difficulty in a case where the Parliament or the Legislature, as the case may be, specifically prescribes the legal effect of non-compliance with that condition. But more important question arises when the Parliament directs the laying of the rules before the Parliament without providing for the consequences of non-compliance with the rule.</p><p style="text-align: justify;">In the case of a statute directing rules to be laid before the Parliament or the Legislature without any condition attached, the rule is only directory. Though the statute says that the rules shall be laid before the Parliament as the provision in the statute is conceived in public interests, the dereliction of the duty by the Minister or other officer concerned in not following the procedure should not be made to affect the members of the public governed by the rules.</p><p style="text-align: justify;">It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rule shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated. But the Parliament or the Legislature, as the case may be if they intended to make that rule mandatory, they would have clearly mentioned the legal consequences of its non-compliance as they have done in other cases.</p><p style="text-align: justify;">This rule (i.e. the one contained in Section 133(3)) therefore, is not made either a condition precedent, or a condition subsequent, to the coming into force of rules. It does not provide for any affirmative resolution. The rule continues to be in force till it is modified by the Parliament.</p><p style="text-align: justify;">If Subsection (3) is only directory, in view of the opinion expressed by us, it is clear from a fair reading of the words used in the section that the rules made under the section came into effect immediately they were published and they continued to be in force because it is not suggested that they were modified by the Legislature. We, therefore, hold that the rule in question is valid.'</p><p style="text-align: justify;">(Underlining is ours)</p><p style="text-align: justify;">Their Lordships of the Supreme Court have quoted the aforesaid passage from the decision of the Andhra Pradesh High Court and have approved the same. The provision of Section 133(3) of the Motor Vehicles Act is in pari materia with Section 44 of the Orissa Survey and Settlement Act. No condition has been attached to the laying of the Rules and no penalty is provided for in the Act itself while | the Rules are not laid before the legislative Assembly. In that view of the matter, the requirement of Section 44 of the Orissa Survey and ! Settlement Act must be held to be directory and not mandatory. The Orissa Legislature never intended that non-compliance of the requirement of laying the Rules as envisaged in Section 44 of the Orissa Survey and Settlement Act would render the Rules invalid. In this view of the matter, even if the Rules framed had not been laid before the Assembly, the same remain valid and, therefore, the authorities had the jurisdiction to fix fair and equitable rent in respect of non-agricultural lands under the Rules in question. The last submission of Mr. Mohapatra accordingly fails and is rejected.</p><p style="text-align: justify;">9. All the contentions having failed, this appeal fails and is dismissed, but in the circumstances, without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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	'Judgement' => array(
		'id' => '525664',
		'acts' => 'Orissa Survey and Settlement Act, 1959 - Sections 19(2), 19(4), 43 and 44',
		'appealno' => 'F.A. No. 468 of 1982',
		'appellant' => 'Indian Aluminium Co. Ltd., Hirakud',
		'authreffered' => '',
		'casename' => 'Indian Aluminium Co. Ltd., Hirakud Vs. State of Orissa and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  Defendants further contend that the suit is bad for non-compliance of Section 80 of the Code of Civil Procedure and the Civil Court has no jurisdiction in view of the relief being available to the plaintiff under Section 22(2)(b) of the Orissa Survey and Settlement Act. (4) of Section 19 clearly indicates that the provisions of the section shall have effect notwithstanding anything contained in any law, custom or contract for the time being in force. Since under the Central Provinces Tenancy Act as well as the Orissa Land Reforms Act, the land does not include urban non-agricultural land and plaintiff having used the land under the lease deed for non-agricultural purposes, the Act will have no application. I am unable to persuade myself to accept this submission, inasmuch as Sub-section (2) of Section 19 of the Act clearly stipulates for prescribing principles for fixing of fair and equitable rent of lands used for purposes other than agriculture. In this connection it is necessary to notice the rule-making power as well as the requirement of law to lay the Rules before the Assembly. Atlas Cycle Industries's case (AIR 1979 SC 1149) (referred to supra) as well as under Section44 of the Orissa Survey and Settlement Act is different. after an exhaustive review of the case law as well as the text books on constitutional law, held as follows :The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or legislature to control delegated legislation. It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rule shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated. But the Parliament or the Legislature, as the case may be if they intended to make that rule mandatory, they would have clearly mentioned the legal consequences of its non-compliance as they have done in other cases. 9. All the contentions having failed, this appeal fails and is dismissed, but in the circumstances, without any order as to costs.',
		'caseanalysis' => null,
		'casesref' => 'D.K. Krishnan v. Secretary;',
		'citingcases' => '',
		'counselplain' => 'R.K. Mohapatra, Adv.',
		'counseldef' => 'Adv. General',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1991-04-22',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'G.B. Patnaik, J.',
		'judgement' => '<p style="text-align: justify;">G.B. Patnaik, J.</p><p style="text-align: justify;">1. Plaintiff is the appellant against the judgment and decree of the Subordinate Judge, Sambalpur, in Title Suit No, 21 of 1981 for declaration that plaintiff is not liable to pay any rent under the provisions of the Orissa Survey & Settlement Act for the lands described in Schedule A of the plaint and for a declaration that defendant No. 1 and its officers have no jurisdiction to fix, assess or realise rent from the plaintiff under the Orissa Survey & Settlement Act.</p><p style="text-align: justify;">2. Plaintiff's case, in brief, is that under two registered lease deeds dated 20-11-1962 and 25-5-1964 executed by the Deputy Commissioner, Sambalpur for the defendants and the Managing Director of the plaintiff-Company, the disputed lands had been given on lease to the plaintiff on an annual rent of Rs. 25/ - per acre with a proviso that the rent is liable to be enhanced after expiry of 25 years not exceeding 50 per cent of the rent payable at the time of enhancement. Notwithstanding the aforesaid terms and conditions of the lease deed, the defendants and their officers served notice on the plaintiff to enhance the rent under the Orissa Survey and Settlement Act, 1958. The plaintiff alleges that no such rent or land revenue can be assessed in respect of the lands under the Survey and Settlement Act as the plaintiff holds the lands under a special contract with the State of Orissa. The plaintiff also alleges that no rules having been framed under the provisions of the Orissa Survey & Settlement Act in accordance with law, the defendants have no jurisdiction to enhance the rent under law. When notice was served upon the plaintiff by the defendants and plaintiff came to know that defendants were bent upon enhancing the rent, the plaintiff filed the suit for the reliefs already stated.</p><p style="text-align: justify;">3. The defendants filed their written statement taking the stand that the plaintiff is a tenant in respect of the lands which have been leased out to the plaintiff and under the Orissa Survey and Settlement Act, fair and equitable rent can be fixed under Section 19 of the Act as also under the Rules framed thereunder. According to the defendants the terms of the lease deed do not prohibit assessment of fair and equitable rent under Section 19 of the Act and Sub-section (4) of Section 19 fully empowers the Assistant Settlement Officer to fix fair and equitable rent in respect of lands held by a tenant under lease. It is also pleaded that defendants 2 and 3 have taken up the proceedings for fixation of fair and equitable rent. The defendants also contend that rules have been framed for assessment of rent for non-agricultural lands legally and defendant No. 2 has, therefore, jurisdiction to fix the rent. Defendants further contend that the suit is bad for non-compliance of Section 80 of the Code of Civil Procedure and the Civil Court has no jurisdiction in view of the relief being available to the plaintiff under Section 22(2)(b) of the Orissa Survey and Settlement Act. It is also urged that the first rent roll not having been published, the suit is hit under Section 29(2) and Section 42(1) of the Orissa Survey and Settlement Act.</p><p style="text-align: justify;">4. On these pleadings, seven issues were framed and an issue No. 1 it has been held that the plaintiff was granted lease for Schedule 4 lands for 99 years on the condition that plaintiff pays annual rent of Rs. 25/ - per acre and observes other conditions of the lease agreement and accordingly the lease is not a permanent lease, nor the rent fixed is permanent. On issues Nos. 2 and 3, the trial court has found that the plaintiffs contention that the plaintiff is not a tenant cannot be and under the provision of Section 19 of the Orissa Survey Settlement Act, fair and equitable rent can be assessed and the officers under the Orissa Survey Settlement Act can take up revision of rent of the lands. On issue No. 4, the trial Court has found that rent not having been fixed or published, the civil Court has no jurisdiction to grant any relief. On issue No. 5, the trial Court has found that Rule 48 of the Orissa Survey & Settlement Rules authorises assessment of rent on non-agricultural lands and the said Rules have been duly published in the Orissa Gazette and, therefore, are operative. On issue No. 6, the trial Court has found that defendants 2 and 3 have jurisdiction and authority to assess rent under the Orissa Survey & Settlement Act. On issue No. 7, the trial Court has found that the Civil Court has no jurisdiction to grant any relief at this stage and accordingly the plaintiff is not entitled to the reliefs prayed for by it. On these findings the suit having been dismissed, the plaintiff has preferred the present first appeal.</p><p style="text-align: justify;">5. Mr. Mohapatra, the learned counsel for the plaintiff-appellant argues with vehemence that Section 19 of the Act has no application in respect of the suit lands which have been held by the plaintiff on the basis of a special contract between the State and the plaintiff and, therefore, the authorities under the Orissa Survey & Settlement Act have no jurisdiction to assess fair and equitable rent in respect of the land in question. He further argues that 'non-agricultural land' will not come under the purview of the Orissa Survey & Settlement Act. Lastly he argues that the amended Rules framed in 1976 not having been laid before the Orissa Legislature Assembly for the period required under Section 44 of the Act, those are not validly framed Rules and, therefore, the authorities have no jurisdiction to assess rent under an invalid set of Rules.</p><p style="text-align: justify;">The learned Advocate General appearing for the State, on the other hand, submits that Section 19 of the Orissa Survey and Settlement Act applies to the lands held by the plaintiff in view of Sub-section (2) thereof. The learned Advocate General also contends that the Government having prescribed the principle for fixation of fair and equitable rent for lands used for any purpose other than agriculture and having framed Rules to that effect, the officers under the Orissa Survey & Settlement Act had the jurisdiction to issue notice to the plaintiff. Lastly he argues that the prescription contained in Section 44 of the Act to lay the Rules before the Legislative Assembly for a period of 15 days is directory and not mandatory and, therefore, even if the amended Rules of 1976 have not been laid before the Assembly, it cannot be held that the Rules are invalid and inoperative. The rival contentions require careful examination of the law on the subject.</p><p style="text-align: justify;">6. Coming to the first submission of Mr. Mohapatra, the main plank of his arguments is that the State having entered into an agreement with the plaintiff and having granted a lease for a specified period on specified terms, the provisions of the Orissa Survey and Settlement Act will not apply to those lands and, therefore, the authorities under the Act have no jurisdiction to enhance the rent. This argument in my considered opinion is without any substance. The provisions of the Orissa Survey and Settlement Act apply to the whole of the State of Orissa. The plaintiff is a person who holds land under the State and is also liable to pay rent to the State. Section 19 authorises the Government to prescribe principles for fixing fair and equitable rent for any land used for agriculture and Section 19(2) authorises the Government to prescribe the principles for fixing of fair and equitable rent for lands used for any purpose other than agriculture. Sub-s. (4) of Section 19 clearly indicates that the provisions of the section shall have effect notwithstanding anything contained in any law, custom or contract for the time being in force. This being the position, Subsection (4) of Section 19 must be held to override any contract between the plaintiff and the State with regard to payment of rent and consequently, if the State Government has prescribed principles for fixing of fair and equitable rent in respect of lands used for purposes other than agriculture, as in the present case, then those principles would apply notwithstanding the contract between the State and the plaintiff. The first submission of Mr. Mohaptra, the learned counsel for the appellant, is accordingly rejected.</p><p style="text-align: justify;">7. Coming to the second submission, according to Mr. Mohapatra, the expression 'land' used in the Orissa Survey and Settlement Act should receive the same meaning as is defined in the Central Provinces Tenancy Act, the said expression not having been defined under the Orissa Survey and Settlement Act and should also have the same meaning as in the Orissa Land Reforms Act. Since under the Central Provinces Tenancy Act as well as the Orissa Land Reforms Act, the land does not include urban non-agricultural land and plaintiff having used the land under the lease deed for non-agricultural purposes, the Act will have no application. I am unable to persuade myself to accept this submission, inasmuch as Sub-section (2) of Section 19 of the Act clearly stipulates for prescribing principles for fixing of fair and equitable rent of lands used for purposes other than agriculture. In view of the aforesaid provision and there being no embargo on the power of the authorities under the Survey and Settlement Act not to apply the said Act to urban lands or to lands not used for agriculture, there is no substance in Mr. Mohapatra's argument that the Act does not apply to the lands in question. I have accordingly no hesitation to reject the second submission of Mr. Mohapatra, the learned counsel for the appellant.</p><p style="text-align: justify;">8. Mr. Mohapatra, the learned counsel for the appellant, however, argues with substantial force that the amending Rules not having been laid before the assembly for a period of 15 days as required under Section 44 of the Act, the Rules are invalid and inoperative and the authorities under the Rules lack inherent jurisdiction to assess rent on the plaintiff's lands. In course of hearing of this appeal, at the request of the learned Advocate General, the hearing of the matter had been adjourned to find out whether in fact the Rules had been laid before the Legislative Assembly for a period of 15 days and notwithstanding time having been granted, the learned Advocate General could not produce any materials to indicate that the Rules in fact had been laid before the Legislative Assembly. In the circumstances, and in view of the positive assertion of the plaintiff that the Rules had not been laid before the Assembly for a period of fifteen days in paragraph-8 of the plaint, which has not been denied in the written statement, it must be held that the Rules had not been laid before the Legislative Assembly for 15 days. The question that arises for consideration, therefore, is whether the requirement of laying the Rules before the Assembly is directory or mandatory. If it is held that the requirement is mandatory then certainly the Rules will not have any operational force on account of the infraction in question, but if it is held that the requirement is merely directory, then the Rules will be valid and operative even though the same had not been laid before the Assembly as required under law.</p><p style="text-align: justify;">In this connection it is necessary to notice the rule-making power as well as the requirement of law to lay the Rules before the Assembly. Section 43 of the Act is the power of the State Government to make Rules after previous publication. Sub-section (1) of Section 43 is extracted herein below in extenso :--</p><p style="text-align: justify;">'The Government may, after previous publications, make rules for the purpose of carrying out the provisions of this Act.'</p><p style="text-align: justify;">Section 44 of the Act is the requirement of the Rules to be laid before the Assembly. The said provision is extracted hereinbelow in extenso :--</p><p style="text-align: justify;">'All rules made under Section 43 shall be laid as soon as possible after they are made before the Orissa Legislative Assembly for a total period of fifteen days which may be comprised in one session or in two or more sessions, and shall be subject to such modification as the Assembly may make during the said period.'</p><p style="text-align: justify;">The aforesaid provision enjoins that all rules made under Section 43 shall be laid as soon as possible after they are made before the Orissa Legislative Assembly for a period of 15 days and shall be subject to such modification as the Assembly may make during the said period. According to Mr. Mohaptra, the expression 'shall' in Section 44 and the provision in Section 44 making the rules subject to any modification as the Assembly may make during the said period of 15 days for which the rules are to be laid before the Assembly, make the legislative intent quite clear and the requirement of laying must be held to be mandatory and not directory. Where a statute directs that the rules shall be laid before the Legislature, whether such direction is mandatory or directory depends upon several considerations notwithstanding the use of the expression 'shall'. The requirement can be held to be directory where no penalty has been attached under the statute for non-laying the Rules before the Assembly and where serious general inconvenience and prejudice would result to the public if the Rules are declared invalid for non-compliance of the particular provision. The policy underlying the provision relating to laying of a delegated legislation made by the subordinate law-making authority before the Legislature is to provide control over the aforesaid authority by the Legislature. According to Craies on Statute Law, there are three kinds of laying: (i) laying without further procedure; (ii) laying subject to negative resolution; and (iii) laying subject to affirmative resolution. This question of the requirement of a statute to lay the Rules before the Parliament or Legislative Assembly whether is directory or mandatory has been considered by the Supreme Court in the case of Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149. Several authorities on the question) have been considered by their Lordships of the Supreme Court in relation to such requirement in different statutes. Considering Sub-section (6) of Section 3 of the Essential Commodities Act, their Lurdships have held that the Legislature never intended that non-compliance of the requirement of laying should render the order void. According to Mr. Mohapptra, this decision will have no application to the present case, is as much as Section 3(6) of the Essential Commodities Act merely directed that the Order made under Section 3 by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be after it is made. It did not provids that the Order shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide, nor did it specify the period for which the Order was to be laid before both Houses of Parliament. But in the instant case Section 44 of the Orissa Survey and Settlement ACT provides in no uncertain terms that the Rules shall be laid for a period of 15 days and it shall be subject to such modification as the Assembly may make during the said period. According to Mr. Mohapatra this brings out the difference and in the context it must be held that the requirement of laying the Rules before the Assembly under Section 44 of the Act is a mandatory requirement. No doubt, the requirement made under Section 3(6) of the Essential Commodities Act with which their Lordships of the Supreme Court were concerned in M/s. Atlas Cycle Industries's case (AIR 1979 SC 1149) (referred to supra) as well as under Section44 of the Orissa Survey and Settlement Act is different. But in the very case their Lordships of the Supreme Court approved the decision of the Andhra Pradesh High Court in the case of D.K. Krishnan v. Secretary, Regional Transport Authority, Chittoor, AIR 1956 Andh Pra 129, where the validity of Rule 134-A of the Madras Motor Vehicles Rules, 1940, made under the Motor Vehicles Act, 1939 was challenged on the ground that it was not laid before the Legislature of the Madras State as required under S, 133(3) of the Act. Section 1333) provided that the Rules shall be laid for not less than fourteen days before the Legislature as soon as possible after they are made and shall be subject to modification as Parliament or such Legislature may make during the session in which they are so laid. Subba Rao, J. after an exhaustive review of the case law as well as the text books on constitutional law, held as follows :--</p><p style="text-align: justify;">'The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or legislature to control delegated legislation. That control is sought to be effected by directing the rules or regulations made by the delegated authority to be laid before the Parliament.</p><p style="text-align: justify;">Where the statute makes the laying of the rules before Parliament a condition precedent or the resolution of the Parliament a condition subsequent, there is no difficulty as in the former case, the rule has no legal force at all till the condition precedent is complied with and in the latter case, it ceases to have force from the date of non-compliance with the condition subsequent.</p><p style="text-align: justify;">Nor can there be any difficulty in a case where the Parliament or the Legislature, as the case may be, specifically prescribes the legal effect of non-compliance with that condition. But more important question arises when the Parliament directs the laying of the rules before the Parliament without providing for the consequences of non-compliance with the rule.</p><p style="text-align: justify;">In the case of a statute directing rules to be laid before the Parliament or the Legislature without any condition attached, the rule is only directory. Though the statute says that the rules shall be laid before the Parliament as the provision in the statute is conceived in public interests, the dereliction of the duty by the Minister or other officer concerned in not following the procedure should not be made to affect the members of the public governed by the rules.</p><p style="text-align: justify;">It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rule shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated. But the Parliament or the Legislature, as the case may be if they intended to make that rule mandatory, they would have clearly mentioned the legal consequences of its non-compliance as they have done in other cases.</p><p style="text-align: justify;">This rule (i.e. the one contained in Section 133(3)) therefore, is not made either a condition precedent, or a condition subsequent, to the coming into force of rules. It does not provide for any affirmative resolution. The rule continues to be in force till it is modified by the Parliament.</p><p style="text-align: justify;">If Subsection (3) is only directory, in view of the opinion expressed by us, it is clear from a fair reading of the words used in the section that the rules made under the section came into effect immediately they were published and they continued to be in force because it is not suggested that they were modified by the Legislature. We, therefore, hold that the rule in question is valid.'</p><p style="text-align: justify;">(Underlining is ours)</p><p style="text-align: justify;">Their Lordships of the Supreme Court have quoted the aforesaid passage from the decision of the Andhra Pradesh High Court and have approved the same. The provision of Section 133(3) of the Motor Vehicles Act is in pari materia with Section 44 of the Orissa Survey and Settlement Act. No condition has been attached to the laying of the Rules and no penalty is provided for in the Act itself while | the Rules are not laid before the legislative Assembly. In that view of the matter, the requirement of Section 44 of the Orissa Survey and ! Settlement Act must be held to be directory and not mandatory. The Orissa Legislature never intended that non-compliance of the requirement of laying the Rules as envisaged in Section 44 of the Orissa Survey and Settlement Act would render the Rules invalid. In this view of the matter, even if the Rules framed had not been laid before the Assembly, the same remain valid and, therefore, the authorities had the jurisdiction to fix fair and equitable rent in respect of non-agricultural lands under the Rules in question. The last submission of Mr. Mohapatra accordingly fails and is rejected.</p><p style="text-align: justify;">9. All the contentions having failed, this appeal fails and is dismissed, but in the circumstances, without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'id' => '525664',
			'acts' => 'Orissa Survey and Settlement Act, 1959 - Sections 19(2), 19(4), 43 and 44',
			'appealno' => 'F.A. No. 468 of 1982',
			'appellant' => 'Indian Aluminium Co. Ltd., Hirakud',
			'authreffered' => '',
			'casename' => 'Indian Aluminium Co. Ltd., Hirakud Vs. State of Orissa and ors.',
			'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  Defendants further contend that the suit is bad for non-compliance of Section 80 of the Code of Civil Procedure and the Civil Court has no jurisdiction in view of the relief being available to the plaintiff under Section 22(2)(b) of the Orissa Survey and Settlement Act. (4) of Section 19 clearly indicates that the provisions of the section shall have effect notwithstanding anything contained in any law, custom or contract for the time being in force. Since under the Central Provinces Tenancy Act as well as the Orissa Land Reforms Act, the land does not include urban non-agricultural land and plaintiff having used the land under the lease deed for non-agricultural purposes, the Act will have no application. I am unable to persuade myself to accept this submission, inasmuch as Sub-section (2) of Section 19 of the Act clearly stipulates for prescribing principles for fixing of fair and equitable rent of lands used for purposes other than agriculture. In this connection it is necessary to notice the rule-making power as well as the requirement of law to lay the Rules before the Assembly. Atlas Cycle Industries's case (AIR 1979 SC 1149) (referred to supra) as well as under Section44 of the Orissa Survey and Settlement Act is different. after an exhaustive review of the case law as well as the text books on constitutional law, held as follows :The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or legislature to control delegated legislation. It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rule shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated. But the Parliament or the Legislature, as the case may be if they intended to make that rule mandatory, they would have clearly mentioned the legal consequences of its non-compliance as they have done in other cases. 9. All the contentions having failed, this appeal fails and is dismissed, but in the circumstances, without any order as to costs.',
			'caseanalysis' => null,
			'casesref' => 'D.K. Krishnan v. Secretary;',
			'citingcases' => '',
			'counselplain' => 'R.K. Mohapatra, Adv.',
			'counseldef' => 'Adv. General',
			'court' => 'Orissa',
			'court_type' => 'HC',
			'decidedon' => '1991-04-22',
			'deposition' => 'Appeal dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => 'G.B. Patnaik, J.',
			'judgement' => '<p style="text-align: justify;">G.B. Patnaik, J.</p><p style="text-align: justify;">1. Plaintiff is the appellant against the judgment and decree of the Subordinate Judge, Sambalpur, in Title Suit No, 21 of 1981 for declaration that plaintiff is not liable to pay any rent under the provisions of the Orissa Survey & Settlement Act for the lands described in Schedule A of the plaint and for a declaration that defendant No. 1 and its officers have no jurisdiction to fix, assess or realise rent from the plaintiff under the Orissa Survey & Settlement Act.</p><p style="text-align: justify;">2. Plaintiff's case, in brief, is that under two registered lease deeds dated 20-11-1962 and 25-5-1964 executed by the Deputy Commissioner, Sambalpur for the defendants and the Managing Director of the plaintiff-Company, the disputed lands had been given on lease to the plaintiff on an annual rent of Rs. 25/ - per acre with a proviso that the rent is liable to be enhanced after expiry of 25 years not exceeding 50 per cent of the rent payable at the time of enhancement. Notwithstanding the aforesaid terms and conditions of the lease deed, the defendants and their officers served notice on the plaintiff to enhance the rent under the Orissa Survey and Settlement Act, 1958. The plaintiff alleges that no such rent or land revenue can be assessed in respect of the lands under the Survey and Settlement Act as the plaintiff holds the lands under a special contract with the State of Orissa. The plaintiff also alleges that no rules having been framed under the provisions of the Orissa Survey & Settlement Act in accordance with law, the defendants have no jurisdiction to enhance the rent under law. When notice was served upon the plaintiff by the defendants and plaintiff came to know that defendants were bent upon enhancing the rent, the plaintiff filed the suit for the reliefs already stated.</p><p style="text-align: justify;">3. The defendants filed their written statement taking the stand that the plaintiff is a tenant in respect of the lands which have been leased out to the plaintiff and under the Orissa Survey and Settlement Act, fair and equitable rent can be fixed under Section 19 of the Act as also under the Rules framed thereunder. According to the defendants the terms of the lease deed do not prohibit assessment of fair and equitable rent under Section 19 of the Act and Sub-section (4) of Section 19 fully empowers the Assistant Settlement Officer to fix fair and equitable rent in respect of lands held by a tenant under lease. It is also pleaded that defendants 2 and 3 have taken up the proceedings for fixation of fair and equitable rent. The defendants also contend that rules have been framed for assessment of rent for non-agricultural lands legally and defendant No. 2 has, therefore, jurisdiction to fix the rent. Defendants further contend that the suit is bad for non-compliance of Section 80 of the Code of Civil Procedure and the Civil Court has no jurisdiction in view of the relief being available to the plaintiff under Section 22(2)(b) of the Orissa Survey and Settlement Act. It is also urged that the first rent roll not having been published, the suit is hit under Section 29(2) and Section 42(1) of the Orissa Survey and Settlement Act.</p><p style="text-align: justify;">4. On these pleadings, seven issues were framed and an issue No. 1 it has been held that the plaintiff was granted lease for Schedule 4 lands for 99 years on the condition that plaintiff pays annual rent of Rs. 25/ - per acre and observes other conditions of the lease agreement and accordingly the lease is not a permanent lease, nor the rent fixed is permanent. On issues Nos. 2 and 3, the trial court has found that the plaintiffs contention that the plaintiff is not a tenant cannot be and under the provision of Section 19 of the Orissa Survey Settlement Act, fair and equitable rent can be assessed and the officers under the Orissa Survey Settlement Act can take up revision of rent of the lands. On issue No. 4, the trial Court has found that rent not having been fixed or published, the civil Court has no jurisdiction to grant any relief. On issue No. 5, the trial Court has found that Rule 48 of the Orissa Survey & Settlement Rules authorises assessment of rent on non-agricultural lands and the said Rules have been duly published in the Orissa Gazette and, therefore, are operative. On issue No. 6, the trial Court has found that defendants 2 and 3 have jurisdiction and authority to assess rent under the Orissa Survey & Settlement Act. On issue No. 7, the trial Court has found that the Civil Court has no jurisdiction to grant any relief at this stage and accordingly the plaintiff is not entitled to the reliefs prayed for by it. On these findings the suit having been dismissed, the plaintiff has preferred the present first appeal.</p><p style="text-align: justify;">5. Mr. Mohapatra, the learned counsel for the plaintiff-appellant argues with vehemence that Section 19 of the Act has no application in respect of the suit lands which have been held by the plaintiff on the basis of a special contract between the State and the plaintiff and, therefore, the authorities under the Orissa Survey & Settlement Act have no jurisdiction to assess fair and equitable rent in respect of the land in question. He further argues that 'non-agricultural land' will not come under the purview of the Orissa Survey & Settlement Act. Lastly he argues that the amended Rules framed in 1976 not having been laid before the Orissa Legislature Assembly for the period required under Section 44 of the Act, those are not validly framed Rules and, therefore, the authorities have no jurisdiction to assess rent under an invalid set of Rules.</p><p style="text-align: justify;">The learned Advocate General appearing for the State, on the other hand, submits that Section 19 of the Orissa Survey and Settlement Act applies to the lands held by the plaintiff in view of Sub-section (2) thereof. The learned Advocate General also contends that the Government having prescribed the principle for fixation of fair and equitable rent for lands used for any purpose other than agriculture and having framed Rules to that effect, the officers under the Orissa Survey & Settlement Act had the jurisdiction to issue notice to the plaintiff. Lastly he argues that the prescription contained in Section 44 of the Act to lay the Rules before the Legislative Assembly for a period of 15 days is directory and not mandatory and, therefore, even if the amended Rules of 1976 have not been laid before the Assembly, it cannot be held that the Rules are invalid and inoperative. The rival contentions require careful examination of the law on the subject.</p><p style="text-align: justify;">6. Coming to the first submission of Mr. Mohapatra, the main plank of his arguments is that the State having entered into an agreement with the plaintiff and having granted a lease for a specified period on specified terms, the provisions of the Orissa Survey and Settlement Act will not apply to those lands and, therefore, the authorities under the Act have no jurisdiction to enhance the rent. This argument in my considered opinion is without any substance. The provisions of the Orissa Survey and Settlement Act apply to the whole of the State of Orissa. The plaintiff is a person who holds land under the State and is also liable to pay rent to the State. Section 19 authorises the Government to prescribe principles for fixing fair and equitable rent for any land used for agriculture and Section 19(2) authorises the Government to prescribe the principles for fixing of fair and equitable rent for lands used for any purpose other than agriculture. Sub-s. (4) of Section 19 clearly indicates that the provisions of the section shall have effect notwithstanding anything contained in any law, custom or contract for the time being in force. This being the position, Subsection (4) of Section 19 must be held to override any contract between the plaintiff and the State with regard to payment of rent and consequently, if the State Government has prescribed principles for fixing of fair and equitable rent in respect of lands used for purposes other than agriculture, as in the present case, then those principles would apply notwithstanding the contract between the State and the plaintiff. The first submission of Mr. Mohaptra, the learned counsel for the appellant, is accordingly rejected.</p><p style="text-align: justify;">7. Coming to the second submission, according to Mr. Mohapatra, the expression 'land' used in the Orissa Survey and Settlement Act should receive the same meaning as is defined in the Central Provinces Tenancy Act, the said expression not having been defined under the Orissa Survey and Settlement Act and should also have the same meaning as in the Orissa Land Reforms Act. Since under the Central Provinces Tenancy Act as well as the Orissa Land Reforms Act, the land does not include urban non-agricultural land and plaintiff having used the land under the lease deed for non-agricultural purposes, the Act will have no application. I am unable to persuade myself to accept this submission, inasmuch as Sub-section (2) of Section 19 of the Act clearly stipulates for prescribing principles for fixing of fair and equitable rent of lands used for purposes other than agriculture. In view of the aforesaid provision and there being no embargo on the power of the authorities under the Survey and Settlement Act not to apply the said Act to urban lands or to lands not used for agriculture, there is no substance in Mr. Mohapatra's argument that the Act does not apply to the lands in question. I have accordingly no hesitation to reject the second submission of Mr. Mohapatra, the learned counsel for the appellant.</p><p style="text-align: justify;">8. Mr. Mohapatra, the learned counsel for the appellant, however, argues with substantial force that the amending Rules not having been laid before the assembly for a period of 15 days as required under Section 44 of the Act, the Rules are invalid and inoperative and the authorities under the Rules lack inherent jurisdiction to assess rent on the plaintiff's lands. In course of hearing of this appeal, at the request of the learned Advocate General, the hearing of the matter had been adjourned to find out whether in fact the Rules had been laid before the Legislative Assembly for a period of 15 days and notwithstanding time having been granted, the learned Advocate General could not produce any materials to indicate that the Rules in fact had been laid before the Legislative Assembly. In the circumstances, and in view of the positive assertion of the plaintiff that the Rules had not been laid before the Assembly for a period of fifteen days in paragraph-8 of the plaint, which has not been denied in the written statement, it must be held that the Rules had not been laid before the Legislative Assembly for 15 days. The question that arises for consideration, therefore, is whether the requirement of laying the Rules before the Assembly is directory or mandatory. If it is held that the requirement is mandatory then certainly the Rules will not have any operational force on account of the infraction in question, but if it is held that the requirement is merely directory, then the Rules will be valid and operative even though the same had not been laid before the Assembly as required under law.</p><p style="text-align: justify;">In this connection it is necessary to notice the rule-making power as well as the requirement of law to lay the Rules before the Assembly. Section 43 of the Act is the power of the State Government to make Rules after previous publication. Sub-section (1) of Section 43 is extracted herein below in extenso :--</p><p style="text-align: justify;">'The Government may, after previous publications, make rules for the purpose of carrying out the provisions of this Act.'</p><p style="text-align: justify;">Section 44 of the Act is the requirement of the Rules to be laid before the Assembly. The said provision is extracted hereinbelow in extenso :--</p><p style="text-align: justify;">'All rules made under Section 43 shall be laid as soon as possible after they are made before the Orissa Legislative Assembly for a total period of fifteen days which may be comprised in one session or in two or more sessions, and shall be subject to such modification as the Assembly may make during the said period.'</p><p style="text-align: justify;">The aforesaid provision enjoins that all rules made under Section 43 shall be laid as soon as possible after they are made before the Orissa Legislative Assembly for a period of 15 days and shall be subject to such modification as the Assembly may make during the said period. According to Mr. Mohaptra, the expression 'shall' in Section 44 and the provision in Section 44 making the rules subject to any modification as the Assembly may make during the said period of 15 days for which the rules are to be laid before the Assembly, make the legislative intent quite clear and the requirement of laying must be held to be mandatory and not directory. Where a statute directs that the rules shall be laid before the Legislature, whether such direction is mandatory or directory depends upon several considerations notwithstanding the use of the expression 'shall'. The requirement can be held to be directory where no penalty has been attached under the statute for non-laying the Rules before the Assembly and where serious general inconvenience and prejudice would result to the public if the Rules are declared invalid for non-compliance of the particular provision. The policy underlying the provision relating to laying of a delegated legislation made by the subordinate law-making authority before the Legislature is to provide control over the aforesaid authority by the Legislature. According to Craies on Statute Law, there are three kinds of laying: (i) laying without further procedure; (ii) laying subject to negative resolution; and (iii) laying subject to affirmative resolution. This question of the requirement of a statute to lay the Rules before the Parliament or Legislative Assembly whether is directory or mandatory has been considered by the Supreme Court in the case of Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149. Several authorities on the question) have been considered by their Lordships of the Supreme Court in relation to such requirement in different statutes. Considering Sub-section (6) of Section 3 of the Essential Commodities Act, their Lurdships have held that the Legislature never intended that non-compliance of the requirement of laying should render the order void. According to Mr. Mohapptra, this decision will have no application to the present case, is as much as Section 3(6) of the Essential Commodities Act merely directed that the Order made under Section 3 by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be after it is made. It did not provids that the Order shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide, nor did it specify the period for which the Order was to be laid before both Houses of Parliament. But in the instant case Section 44 of the Orissa Survey and Settlement ACT provides in no uncertain terms that the Rules shall be laid for a period of 15 days and it shall be subject to such modification as the Assembly may make during the said period. According to Mr. Mohapatra this brings out the difference and in the context it must be held that the requirement of laying the Rules before the Assembly under Section 44 of the Act is a mandatory requirement. No doubt, the requirement made under Section 3(6) of the Essential Commodities Act with which their Lordships of the Supreme Court were concerned in M/s. Atlas Cycle Industries's case (AIR 1979 SC 1149) (referred to supra) as well as under Section44 of the Orissa Survey and Settlement Act is different. But in the very case their Lordships of the Supreme Court approved the decision of the Andhra Pradesh High Court in the case of D.K. Krishnan v. Secretary, Regional Transport Authority, Chittoor, AIR 1956 Andh Pra 129, where the validity of Rule 134-A of the Madras Motor Vehicles Rules, 1940, made under the Motor Vehicles Act, 1939 was challenged on the ground that it was not laid before the Legislature of the Madras State as required under S, 133(3) of the Act. Section 1333) provided that the Rules shall be laid for not less than fourteen days before the Legislature as soon as possible after they are made and shall be subject to modification as Parliament or such Legislature may make during the session in which they are so laid. Subba Rao, J. after an exhaustive review of the case law as well as the text books on constitutional law, held as follows :--</p><p style="text-align: justify;">'The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or legislature to control delegated legislation. That control is sought to be effected by directing the rules or regulations made by the delegated authority to be laid before the Parliament.</p><p style="text-align: justify;">Where the statute makes the laying of the rules before Parliament a condition precedent or the resolution of the Parliament a condition subsequent, there is no difficulty as in the former case, the rule has no legal force at all till the condition precedent is complied with and in the latter case, it ceases to have force from the date of non-compliance with the condition subsequent.</p><p style="text-align: justify;">Nor can there be any difficulty in a case where the Parliament or the Legislature, as the case may be, specifically prescribes the legal effect of non-compliance with that condition. But more important question arises when the Parliament directs the laying of the rules before the Parliament without providing for the consequences of non-compliance with the rule.</p><p style="text-align: justify;">In the case of a statute directing rules to be laid before the Parliament or the Legislature without any condition attached, the rule is only directory. Though the statute says that the rules shall be laid before the Parliament as the provision in the statute is conceived in public interests, the dereliction of the duty by the Minister or other officer concerned in not following the procedure should not be made to affect the members of the public governed by the rules.</p><p style="text-align: justify;">It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rule shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated. But the Parliament or the Legislature, as the case may be if they intended to make that rule mandatory, they would have clearly mentioned the legal consequences of its non-compliance as they have done in other cases.</p><p style="text-align: justify;">This rule (i.e. the one contained in Section 133(3)) therefore, is not made either a condition precedent, or a condition subsequent, to the coming into force of rules. It does not provide for any affirmative resolution. The rule continues to be in force till it is modified by the Parliament.</p><p style="text-align: justify;">If Subsection (3) is only directory, in view of the opinion expressed by us, it is clear from a fair reading of the words used in the section that the rules made under the section came into effect immediately they were published and they continued to be in force because it is not suggested that they were modified by the Legislature. We, therefore, hold that the rule in question is valid.'</p><p style="text-align: justify;">(Underlining is ours)</p><p style="text-align: justify;">Their Lordships of the Supreme Court have quoted the aforesaid passage from the decision of the Andhra Pradesh High Court and have approved the same. The provision of Section 133(3) of the Motor Vehicles Act is in pari materia with Section 44 of the Orissa Survey and Settlement Act. No condition has been attached to the laying of the Rules and no penalty is provided for in the Act itself while | the Rules are not laid before the legislative Assembly. In that view of the matter, the requirement of Section 44 of the Orissa Survey and ! Settlement Act must be held to be directory and not mandatory. The Orissa Legislature never intended that non-compliance of the requirement of laying the Rules as envisaged in Section 44 of the Orissa Survey and Settlement Act would render the Rules invalid. In this view of the matter, even if the Rules framed had not been laid before the Assembly, the same remain valid and, therefore, the authorities had the jurisdiction to fix fair and equitable rent in respect of non-agricultural lands under the Rules in question. The last submission of Mr. Mohapatra accordingly fails and is rejected.</p><p style="text-align: justify;">9. All the contentions having failed, this appeal fails and is dismissed, but in the circumstances, without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		(int) 70 => 'Atlas Cycle Industries Ltd.',
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		(int) 83 => 'AIR 1979 SC 1149',
		(int) 84 => 'the Orissa Survey and Settlement Act',
		(int) 85 => 'Lordships of the Supreme Court',
		(int) 86 => 'the Andhra Pradesh High Court',
		(int) 87 => 'Regional Transport Authority',
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		(int) 89 => 'the Madras Motor Vehicles Rules',
		(int) 90 => 'the Legislature of the Madras State',
		(int) 91 => 'Legislature',
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		(int) 93 => 'Legislature',
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		(int) 95 => 'Parliament',
		(int) 96 => 'Parliament',
		(int) 97 => 'Parliament',
		(int) 98 => 'Parliament',
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		(int) 101 => 'Parliament',
		(int) 102 => 'Parliament',
		(int) 103 => 'Legislature',
		(int) 104 => 'Parliament',
		(int) 105 => 'Parliament',
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		(int) 107 => 'Parliament',
		(int) 108 => 'Legislature',
		(int) 109 => 'Parliament',
		(int) 110 => 'Legislature',
		(int) 111 => 'ours)Their Lordships',
		(int) 112 => 'the Supreme Court',
		(int) 113 => 'the Andhra Pradesh High Court',
		(int) 114 => 'the Motor Vehicles Act',
		(int) 115 => 'Assembly',
		(int) 116 => 'The Orissa Legislature',
		(int) 117 => 'Assembly'
	),
	'CARDINAL' => array(
		(int) 0 => '21',
		(int) 1 => '1',
		(int) 2 => 'two',
		(int) 3 => '25',
		(int) 4 => '4',
		(int) 5 => '2',
		(int) 6 => '3',
		(int) 7 => '2',
		(int) 8 => 'seven',
		(int) 9 => '1',
		(int) 10 => '2',
		(int) 11 => '3',
		(int) 12 => '4',
		(int) 13 => '5',
		(int) 14 => '48',
		(int) 15 => '6',
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		(int) 22 => '1',
		(int) 23 => 'two',
		(int) 24 => 'three',
		(int) 25 => '6',
		(int) 26 => '133(3',
		(int) 27 => '3'
	),
	'DATE' => array(
		(int) 0 => '1981',
		(int) 1 => '20-11-1962',
		(int) 2 => 'annual',
		(int) 3 => '25 years',
		(int) 4 => '1958',
		(int) 5 => '99 years',
		(int) 6 => '1976',
		(int) 7 => '15 days',
		(int) 8 => '1976',
		(int) 9 => '15 days',
		(int) 10 => '15 days',
		(int) 11 => 'fifteen days',
		(int) 12 => '15 days',
		(int) 13 => 'fifteen days',
		(int) 14 => '15 days',
		(int) 15 => '15 days',
		(int) 16 => 'a period of',
		(int) 17 => '15 days',
		(int) 18 => '1940',
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		(int) 3 => 'D.K.',
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$desc = array(
	'Judgement' => array(
		'id' => '525664',
		'acts' => 'Orissa Survey and Settlement Act, 1959 - Sections 19(2), 19(4), 43 and 44',
		'appealno' => 'F.A. No. 468 of 1982',
		'appellant' => 'Indian Aluminium Co. Ltd., Hirakud',
		'authreffered' => '',
		'casename' => 'Indian Aluminium Co. Ltd., Hirakud Vs. State of Orissa and ors.',
		'casenote' => ' - MOTOR VEHICLES ACT, 1988
[C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation  Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. The provision of sub-section (1) of Section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. The period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. It, therefore, appears that an appeal filed under Section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the Court has the discretion either to grant time to make the deposit or not. No formal order condoning the delay is necessary, an order of adjournment would suffice. The provisions of limitation embodied in the substantive provision of the sub-section (1) of Section 173 of the Act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. Therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the Court. No specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of Section 173 is necessary. [New India Assurance Co. Ltd. v Md. Makubur Rahman, 1993 (2) GLR 430 and New India Assurance Co. Ltd. v Smt Rita Devi, 1997(2) GLT 406, Approved. New India Assurance Co. Ltd. v Birendra Mohan De, 1995 (2) Gau LT 218 (DB) and Union of India v Smt Gita Banik, 1996 (2) GLT 246, are not good law].  -  Defendants further contend that the suit is bad for non-compliance of Section 80 of the Code of Civil Procedure and the Civil Court has no jurisdiction in view of the relief being available to the plaintiff under Section 22(2)(b) of the Orissa Survey and Settlement Act. (4) of Section 19 clearly indicates that the provisions of the section shall have effect notwithstanding anything contained in any law, custom or contract for the time being in force. Since under the Central Provinces Tenancy Act as well as the Orissa Land Reforms Act, the land does not include urban non-agricultural land and plaintiff having used the land under the lease deed for non-agricultural purposes, the Act will have no application. I am unable to persuade myself to accept this submission, inasmuch as Sub-section (2) of Section 19 of the Act clearly stipulates for prescribing principles for fixing of fair and equitable rent of lands used for purposes other than agriculture. In this connection it is necessary to notice the rule-making power as well as the requirement of law to lay the Rules before the Assembly. Atlas Cycle Industries's case (AIR 1979 SC 1149) (referred to supra) as well as under Section44 of the Orissa Survey and Settlement Act is different. after an exhaustive review of the case law as well as the text books on constitutional law, held as follows :The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or legislature to control delegated legislation. It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rule shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated. But the Parliament or the Legislature, as the case may be if they intended to make that rule mandatory, they would have clearly mentioned the legal consequences of its non-compliance as they have done in other cases. 9. All the contentions having failed, this appeal fails and is dismissed, but in the circumstances, without any order as to costs.',
		'caseanalysis' => null,
		'casesref' => 'D.K. Krishnan v. Secretary;',
		'citingcases' => '',
		'counselplain' => 'R.K. Mohapatra, Adv.',
		'counseldef' => 'Adv. General',
		'court' => 'Orissa',
		'court_type' => 'HC',
		'decidedon' => '1991-04-22',
		'deposition' => 'Appeal dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => 'G.B. Patnaik, J.',
		'judgement' => '<p style="text-align: justify;">G.B. Patnaik, J.</p><p style="text-align: justify;">1. Plaintiff is the appellant against the judgment and decree of the Subordinate Judge, Sambalpur, in Title Suit No, 21 of 1981 for declaration that plaintiff is not liable to pay any rent under the provisions of the Orissa Survey & Settlement Act for the lands described in Schedule A of the plaint and for a declaration that defendant No. 1 and its officers have no jurisdiction to fix, assess or realise rent from the plaintiff under the Orissa Survey & Settlement Act.</p><p style="text-align: justify;">2. Plaintiff's case, in brief, is that under two registered lease deeds dated 20-11-1962 and 25-5-1964 executed by the Deputy Commissioner, Sambalpur for the defendants and the Managing Director of the plaintiff-Company, the disputed lands had been given on lease to the plaintiff on an annual rent of Rs. 25/ - per acre with a proviso that the rent is liable to be enhanced after expiry of 25 years not exceeding 50 per cent of the rent payable at the time of enhancement. Notwithstanding the aforesaid terms and conditions of the lease deed, the defendants and their officers served notice on the plaintiff to enhance the rent under the Orissa Survey and Settlement Act, 1958. The plaintiff alleges that no such rent or land revenue can be assessed in respect of the lands under the Survey and Settlement Act as the plaintiff holds the lands under a special contract with the State of Orissa. The plaintiff also alleges that no rules having been framed under the provisions of the Orissa Survey & Settlement Act in accordance with law, the defendants have no jurisdiction to enhance the rent under law. When notice was served upon the plaintiff by the defendants and plaintiff came to know that defendants were bent upon enhancing the rent, the plaintiff filed the suit for the reliefs already stated.</p><p style="text-align: justify;">3. The defendants filed their written statement taking the stand that the plaintiff is a tenant in respect of the lands which have been leased out to the plaintiff and under the Orissa Survey and Settlement Act, fair and equitable rent can be fixed under Section 19 of the Act as also under the Rules framed thereunder. According to the defendants the terms of the lease deed do not prohibit assessment of fair and equitable rent under Section 19 of the Act and Sub-section (4) of Section 19 fully empowers the Assistant Settlement Officer to fix fair and equitable rent in respect of lands held by a tenant under lease. It is also pleaded that defendants 2 and 3 have taken up the proceedings for fixation of fair and equitable rent. The defendants also contend that rules have been framed for assessment of rent for non-agricultural lands legally and defendant No. 2 has, therefore, jurisdiction to fix the rent. Defendants further contend that the suit is bad for non-compliance of Section 80 of the Code of Civil Procedure and the Civil Court has no jurisdiction in view of the relief being available to the plaintiff under Section 22(2)(b) of the Orissa Survey and Settlement Act. It is also urged that the first rent roll not having been published, the suit is hit under Section 29(2) and Section 42(1) of the Orissa Survey and Settlement Act.</p><p style="text-align: justify;">4. On these pleadings, seven issues were framed and an issue No. 1 it has been held that the plaintiff was granted lease for Schedule 4 lands for 99 years on the condition that plaintiff pays annual rent of Rs. 25/ - per acre and observes other conditions of the lease agreement and accordingly the lease is not a permanent lease, nor the rent fixed is permanent. On issues Nos. 2 and 3, the trial court has found that the plaintiffs contention that the plaintiff is not a tenant cannot be and under the provision of Section 19 of the Orissa Survey Settlement Act, fair and equitable rent can be assessed and the officers under the Orissa Survey Settlement Act can take up revision of rent of the lands. On issue No. 4, the trial Court has found that rent not having been fixed or published, the civil Court has no jurisdiction to grant any relief. On issue No. 5, the trial Court has found that Rule 48 of the Orissa Survey & Settlement Rules authorises assessment of rent on non-agricultural lands and the said Rules have been duly published in the Orissa Gazette and, therefore, are operative. On issue No. 6, the trial Court has found that defendants 2 and 3 have jurisdiction and authority to assess rent under the Orissa Survey & Settlement Act. On issue No. 7, the trial Court has found that the Civil Court has no jurisdiction to grant any relief at this stage and accordingly the plaintiff is not entitled to the reliefs prayed for by it. On these findings the suit having been dismissed, the plaintiff has preferred the present first appeal.</p><p style="text-align: justify;">5. Mr. Mohapatra, the learned counsel for the plaintiff-appellant argues with vehemence that Section 19 of the Act has no application in respect of the suit lands which have been held by the plaintiff on the basis of a special contract between the State and the plaintiff and, therefore, the authorities under the Orissa Survey & Settlement Act have no jurisdiction to assess fair and equitable rent in respect of the land in question. He further argues that 'non-agricultural land' will not come under the purview of the Orissa Survey & Settlement Act. Lastly he argues that the amended Rules framed in 1976 not having been laid before the Orissa Legislature Assembly for the period required under Section 44 of the Act, those are not validly framed Rules and, therefore, the authorities have no jurisdiction to assess rent under an invalid set of Rules.</p><p style="text-align: justify;">The learned Advocate General appearing for the State, on the other hand, submits that Section 19 of the Orissa Survey and Settlement Act applies to the lands held by the plaintiff in view of Sub-section (2) thereof. The learned Advocate General also contends that the Government having prescribed the principle for fixation of fair and equitable rent for lands used for any purpose other than agriculture and having framed Rules to that effect, the officers under the Orissa Survey & Settlement Act had the jurisdiction to issue notice to the plaintiff. Lastly he argues that the prescription contained in Section 44 of the Act to lay the Rules before the Legislative Assembly for a period of 15 days is directory and not mandatory and, therefore, even if the amended Rules of 1976 have not been laid before the Assembly, it cannot be held that the Rules are invalid and inoperative. The rival contentions require careful examination of the law on the subject.</p><p style="text-align: justify;">6. Coming to the first submission of Mr. Mohapatra, the main plank of his arguments is that the State having entered into an agreement with the plaintiff and having granted a lease for a specified period on specified terms, the provisions of the Orissa Survey and Settlement Act will not apply to those lands and, therefore, the authorities under the Act have no jurisdiction to enhance the rent. This argument in my considered opinion is without any substance. The provisions of the Orissa Survey and Settlement Act apply to the whole of the State of Orissa. The plaintiff is a person who holds land under the State and is also liable to pay rent to the State. Section 19 authorises the Government to prescribe principles for fixing fair and equitable rent for any land used for agriculture and Section 19(2) authorises the Government to prescribe the principles for fixing of fair and equitable rent for lands used for any purpose other than agriculture. Sub-s. (4) of Section 19 clearly indicates that the provisions of the section shall have effect notwithstanding anything contained in any law, custom or contract for the time being in force. This being the position, Subsection (4) of Section 19 must be held to override any contract between the plaintiff and the State with regard to payment of rent and consequently, if the State Government has prescribed principles for fixing of fair and equitable rent in respect of lands used for purposes other than agriculture, as in the present case, then those principles would apply notwithstanding the contract between the State and the plaintiff. The first submission of Mr. Mohaptra, the learned counsel for the appellant, is accordingly rejected.</p><p style="text-align: justify;">7. Coming to the second submission, according to Mr. Mohapatra, the expression 'land' used in the Orissa Survey and Settlement Act should receive the same meaning as is defined in the Central Provinces Tenancy Act, the said expression not having been defined under the Orissa Survey and Settlement Act and should also have the same meaning as in the Orissa Land Reforms Act. Since under the Central Provinces Tenancy Act as well as the Orissa Land Reforms Act, the land does not include urban non-agricultural land and plaintiff having used the land under the lease deed for non-agricultural purposes, the Act will have no application. I am unable to persuade myself to accept this submission, inasmuch as Sub-section (2) of Section 19 of the Act clearly stipulates for prescribing principles for fixing of fair and equitable rent of lands used for purposes other than agriculture. In view of the aforesaid provision and there being no embargo on the power of the authorities under the Survey and Settlement Act not to apply the said Act to urban lands or to lands not used for agriculture, there is no substance in Mr. Mohapatra's argument that the Act does not apply to the lands in question. I have accordingly no hesitation to reject the second submission of Mr. Mohapatra, the learned counsel for the appellant.</p><p style="text-align: justify;">8. Mr. Mohapatra, the learned counsel for the appellant, however, argues with substantial force that the amending Rules not having been laid before the assembly for a period of 15 days as required under Section 44 of the Act, the Rules are invalid and inoperative and the authorities under the Rules lack inherent jurisdiction to assess rent on the plaintiff's lands. In course of hearing of this appeal, at the request of the learned Advocate General, the hearing of the matter had been adjourned to find out whether in fact the Rules had been laid before the Legislative Assembly for a period of 15 days and notwithstanding time having been granted, the learned Advocate General could not produce any materials to indicate that the Rules in fact had been laid before the Legislative Assembly. In the circumstances, and in view of the positive assertion of the plaintiff that the Rules had not been laid before the Assembly for a period of fifteen days in paragraph-8 of the plaint, which has not been denied in the written statement, it must be held that the Rules had not been laid before the Legislative Assembly for 15 days. The question that arises for consideration, therefore, is whether the requirement of laying the Rules before the Assembly is directory or mandatory. If it is held that the requirement is mandatory then certainly the Rules will not have any operational force on account of the infraction in question, but if it is held that the requirement is merely directory, then the Rules will be valid and operative even though the same had not been laid before the Assembly as required under law.</p><p style="text-align: justify;">In this connection it is necessary to notice the rule-making power as well as the requirement of law to lay the Rules before the Assembly. Section 43 of the Act is the power of the State Government to make Rules after previous publication. Sub-section (1) of Section 43 is extracted herein below in extenso :--</p><p style="text-align: justify;">'The Government may, after previous publications, make rules for the purpose of carrying out the provisions of this Act.'</p><p style="text-align: justify;">Section 44 of the Act is the requirement of the Rules to be laid before the Assembly. The said provision is extracted hereinbelow in extenso :--</p><p style="text-align: justify;">'All rules made under Section 43 shall be laid as soon as possible after they are made before the Orissa Legislative Assembly for a total period of fifteen days which may be comprised in one session or in two or more sessions, and shall be subject to such modification as the Assembly may make during the said period.'</p><p style="text-align: justify;">The aforesaid provision enjoins that all rules made under Section 43 shall be laid as soon as possible after they are made before the Orissa Legislative Assembly for a period of 15 days and shall be subject to such modification as the Assembly may make during the said period. According to Mr. Mohaptra, the expression 'shall' in Section 44 and the provision in Section 44 making the rules subject to any modification as the Assembly may make during the said period of 15 days for which the rules are to be laid before the Assembly, make the legislative intent quite clear and the requirement of laying must be held to be mandatory and not directory. Where a statute directs that the rules shall be laid before the Legislature, whether such direction is mandatory or directory depends upon several considerations notwithstanding the use of the expression 'shall'. The requirement can be held to be directory where no penalty has been attached under the statute for non-laying the Rules before the Assembly and where serious general inconvenience and prejudice would result to the public if the Rules are declared invalid for non-compliance of the particular provision. The policy underlying the provision relating to laying of a delegated legislation made by the subordinate law-making authority before the Legislature is to provide control over the aforesaid authority by the Legislature. According to Craies on Statute Law, there are three kinds of laying: (i) laying without further procedure; (ii) laying subject to negative resolution; and (iii) laying subject to affirmative resolution. This question of the requirement of a statute to lay the Rules before the Parliament or Legislative Assembly whether is directory or mandatory has been considered by the Supreme Court in the case of Atlas Cycle Industries Ltd. v. State of Haryana, AIR 1979 SC 1149. Several authorities on the question) have been considered by their Lordships of the Supreme Court in relation to such requirement in different statutes. Considering Sub-section (6) of Section 3 of the Essential Commodities Act, their Lurdships have held that the Legislature never intended that non-compliance of the requirement of laying should render the order void. According to Mr. Mohapptra, this decision will have no application to the present case, is as much as Section 3(6) of the Essential Commodities Act merely directed that the Order made under Section 3 by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament as soon as may be after it is made. It did not provids that the Order shall be subject to any modification which either House of Parliament may in its wisdom think it necessary to provide, nor did it specify the period for which the Order was to be laid before both Houses of Parliament. But in the instant case Section 44 of the Orissa Survey and Settlement ACT provides in no uncertain terms that the Rules shall be laid for a period of 15 days and it shall be subject to such modification as the Assembly may make during the said period. According to Mr. Mohapatra this brings out the difference and in the context it must be held that the requirement of laying the Rules before the Assembly under Section 44 of the Act is a mandatory requirement. No doubt, the requirement made under Section 3(6) of the Essential Commodities Act with which their Lordships of the Supreme Court were concerned in M/s. Atlas Cycle Industries's case (AIR 1979 SC 1149) (referred to supra) as well as under Section44 of the Orissa Survey and Settlement Act is different. But in the very case their Lordships of the Supreme Court approved the decision of the Andhra Pradesh High Court in the case of D.K. Krishnan v. Secretary, Regional Transport Authority, Chittoor, AIR 1956 Andh Pra 129, where the validity of Rule 134-A of the Madras Motor Vehicles Rules, 1940, made under the Motor Vehicles Act, 1939 was challenged on the ground that it was not laid before the Legislature of the Madras State as required under S, 133(3) of the Act. Section 1333) provided that the Rules shall be laid for not less than fourteen days before the Legislature as soon as possible after they are made and shall be subject to modification as Parliament or such Legislature may make during the session in which they are so laid. Subba Rao, J. after an exhaustive review of the case law as well as the text books on constitutional law, held as follows :--</p><p style="text-align: justify;">'The aforesaid discussion in the text books and the case law indicate the various methods adopted by the Parliament or legislature to control delegated legislation. That control is sought to be effected by directing the rules or regulations made by the delegated authority to be laid before the Parliament.</p><p style="text-align: justify;">Where the statute makes the laying of the rules before Parliament a condition precedent or the resolution of the Parliament a condition subsequent, there is no difficulty as in the former case, the rule has no legal force at all till the condition precedent is complied with and in the latter case, it ceases to have force from the date of non-compliance with the condition subsequent.</p><p style="text-align: justify;">Nor can there be any difficulty in a case where the Parliament or the Legislature, as the case may be, specifically prescribes the legal effect of non-compliance with that condition. But more important question arises when the Parliament directs the laying of the rules before the Parliament without providing for the consequences of non-compliance with the rule.</p><p style="text-align: justify;">In the case of a statute directing rules to be laid before the Parliament or the Legislature without any condition attached, the rule is only directory. Though the statute says that the rules shall be laid before the Parliament as the provision in the statute is conceived in public interests, the dereliction of the duty by the Minister or other officer concerned in not following the procedure should not be made to affect the members of the public governed by the rules.</p><p style="text-align: justify;">It may be asked and legitimately too that when the Parliament to keep its control over delegated legislation directs that the rule shall be laid before the Parliament and if that rule is construed as directory, the object itself would be defeated. But the Parliament or the Legislature, as the case may be if they intended to make that rule mandatory, they would have clearly mentioned the legal consequences of its non-compliance as they have done in other cases.</p><p style="text-align: justify;">This rule (i.e. the one contained in Section 133(3)) therefore, is not made either a condition precedent, or a condition subsequent, to the coming into force of rules. It does not provide for any affirmative resolution. The rule continues to be in force till it is modified by the Parliament.</p><p style="text-align: justify;">If Subsection (3) is only directory, in view of the opinion expressed by us, it is clear from a fair reading of the words used in the section that the rules made under the section came into effect immediately they were published and they continued to be in force because it is not suggested that they were modified by the Legislature. We, therefore, hold that the rule in question is valid.'</p><p style="text-align: justify;">(Underlining is ours)</p><p style="text-align: justify;">Their Lordships of the Supreme Court have quoted the aforesaid passage from the decision of the Andhra Pradesh High Court and have approved the same. The provision of Section 133(3) of the Motor Vehicles Act is in pari materia with Section 44 of the Orissa Survey and Settlement Act. No condition has been attached to the laying of the Rules and no penalty is provided for in the Act itself while | the Rules are not laid before the legislative Assembly. In that view of the matter, the requirement of Section 44 of the Orissa Survey and ! Settlement Act must be held to be directory and not mandatory. The Orissa Legislature never intended that non-compliance of the requirement of laying the Rules as envisaged in Section 44 of the Orissa Survey and Settlement Act would render the Rules invalid. In this view of the matter, even if the Rules framed had not been laid before the Assembly, the same remain valid and, therefore, the authorities had the jurisdiction to fix fair and equitable rent in respect of non-agricultural lands under the Rules in question. The last submission of Mr. Mohapatra accordingly fails and is rejected.</p><p style="text-align: justify;">9. All the contentions having failed, this appeal fails and is dismissed, but in the circumstances, without any order as to costs.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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LAW: the Orissa Survey and Settlement Act, the Survey and Settlement Act, the Orissa Survey and Settlement Act, Section 19, Section 19, Section 19, Section 80, Section 22(2)(b, Section 29(2, Section 42(1, Section 19, the Orissa Survey Settlement Act, the Orissa Survey Settlement Act, Section 19 of the Act, Section 44 of the Act, Section 19, Section 44 of the Act, Section 19, Section 19(2, Section 19, Section 19, the Orissa Survey and Settlement Act, Section 19 of the Act, the Survey and Settlement Act, Section 44 of the Act, Section 43 of the Act, Section 43, Section 43, Section 43, Section 44, Section 44, Section 3, the Essential Commodities Act, Section 3, Section 44, Section 3(6, the Essential Commodities Act, the Motor Vehicles Act, Section 133(3, Section 133(3, Section 44, Section 44, Section 44

PERSON: G.B. Patnaik, Schedule 4 lands, Nos, Mohapatra, Mohapatra, Mohaptra, Mohapatra, Mohapatra, Mohapatra, Mohapatra, Mohaptra, Mohapptra, Order, Order, Order, Mohapatra, Subba Rao, Mohapatra

NORP: J.1, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules, Rules

ORG: Sambalpur, Title Suit, the Orissa Survey & Settlement Act, Schedule A, the Orissa Survey & Settlement, Plaintiff, Sambalpur, the State of Orissa, the Orissa Survey & Settlement Act, the Civil Court, the Orissa Survey and Settlement Act, the Orissa Survey and Settlement Act.4, Court, the civil Court, Court, the Orissa Survey & Settlement Rules, Court, the Orissa Survey & Settlement Act, Court, the Civil Court, State, the Orissa Survey & Settlement Act, the Orissa Survey & Settlement Act, the Orissa Legislature Assembly, State, Advocate General, the Orissa Survey & Settlement Act, the Legislative Assembly, Assembly, State, the Orissa Survey and Settlement Act, the Orissa Survey and Settlement Act, the State of Orissa, State, State, Government, Government, State, the State Government, State, the Orissa Survey and Settlement Act, the Central Provinces Tenancy Act, the Orissa Land Reforms Act, the Central Provinces Tenancy Act, the Orissa Land Reforms Act, Advocate General, the Legislative Assembly, Advocate General, the Legislative Assembly, Assembly, the Legislative Assembly, Assembly, Assembly, Assembly, the State Government, Assembly, the Orissa Legislative Assembly, Assembly, the Orissa Legislative Assembly, Assembly, Assembly, Assembly, Legislature, Assembly, Legislature, Legislature, Craies on Statute Law, Parliament, Legislative Assembly, the Supreme Court, Atlas Cycle Industries Ltd., State, AIR 1979 SC 1149, the Supreme Court, Legislature, the Central Government, Houses of Parliament, House of Parliament, Houses of Parliament, Assembly, Assembly, Lordships of the Supreme Court, Atlas Cycle Industries's, AIR 1979 SC 1149, the Orissa Survey and Settlement Act, Lordships of the Supreme Court, the Andhra Pradesh High Court, Regional Transport Authority, AIR 1956, the Madras Motor Vehicles Rules, the Legislature of the Madras State, Legislature, Parliament, Legislature, Parliament, Parliament, Parliament, Parliament, Parliament, Legislature, Parliament, Parliament, Parliament, Legislature, Parliament, Parliament, Parliament, Parliament, Legislature, Parliament, Legislature, ours)Their Lordships, the Supreme Court, the Andhra Pradesh High Court, the Motor Vehicles Act, Assembly, The Orissa Legislature, Assembly

CARDINAL: 21, 1, two, 25, 4, 2, 3, 2, seven, 1, 2, 3, 4, 5, 48, 6, 2, 3, 2, 4, 4, 2, 1, two, three, 6, 133(3, 3

DATE: 1981, 20-11-1962, annual, 25 years, 1958, 99 years, 1976, 15 days, 1976, 15 days, 15 days, fifteen days, 15 days, fifteen days, 15 days, 15 days, a period of, 15 days, 1940, less than fourteen days

MONEY: 50 per cent

ORDINAL: first, first, first, first, second, second

FAC: the Orissa Gazette

GPE: Rules, Haryana, Lurdships, D.K., Krishnan

TIME: 44 of the Act