STATE OF GUJARAT & ANR.

VAGHELA DAYABHAI CHATURBHAI & ORS.

March 5, 1980

[P. N. SHINGHAL AND E. S. VENKATARAMIAH, JJ.]

Constitution of India 1950; Bombay Land Revenue Code 1879 & Bombay Land Rerenue Rules 1921-Allotment and grant of cultivation rights Ol'tr 'Bluuha lands'-State Governnient Resolution providing for preference to ltari.

jans, adivasis and backward class people-Constitutional guarantee of equality

,.; I under Article 14--Whether violated. , c JVords & Phrases-'Bhatha lands'-Meaning of

The expression "bhatha land" means land which forms part of the bed of a river on \Vhich vegetables, rn'elon, cucumber etc. can be grown during the lean period after the rainy season is over, when the level of the water in the river

is quite ]ow. The cultivation of such land is possible only till the next rainy season a,; the land gets submerged under the river water. The occupancy rights.

D over such land cannot ordinarily be granted on a permanent basis as in the case of cultivabl'e lands, in view of the fact that the land gets submerged under the river water every year for 4-5 months.

Till the year 1951 the cultivation rights over 'bhatha lands' were disposed of by public a1,1ction and the successful bidders were treated as l'essors of the lands for short periods. In the year~ 19 51 the State Government ordered that E the leasehold rights over 'bhatha lands' should be disposed of by selection, the crder of priority being (1) bona fide agriculturists who h2.d cultivated the land personally for five years or more, (2) adjacent land holders who had insufficient land for maintenance of their families, (3) coop'erative farming societies and ( 4) priority holders under the Waste Land Rules.

This order was however cancelled and superseded by the Government Reso~ lution dated September 19, 1962 which provid'ed that on the expiry of the then _ -1 existing leases, not held by cooperative farming societies, bhatha land should be disposed of on the basis of five years' lease by public auction.

Exprience showed that only the moneyed people were able to purchas'e the leasehold rights at the public auction and persons belonging to Scheduled Castes and Scheduled Tribes and the oth'er wea.ker sections of society were not even able to participate in such auctions. Consequently, in the year 1964 leasehold rights over bhatha lands were disposed of on ekasal basis by public auctions.

The question relating to the disposal of leasehold rights ov'er bbatha lands was discussed' &t the meeting of the District-Collectors held in 1965-1966 and in pursuance to the suggestions made at the meeting and after considering all rde~ ,.ant matters the State Government by a Resolution dated 28th December, 1966 7 directed that the 'existing procedure for dispos.al of bhatha lands by aucticn be disoontinued with effect from fanuary 1, 1967 and the disposal of such lands were ordered to be in the following priority : ( 1) bona fide agriculturists ef the village who were holding land less than 5 acr'es, preference being given to harijans, adivasi and backward class people (2) holders of the land adjoining the

GUJARAT V. V. D. CHATURBHA! 1183

bhatha la.nd holding less than 16 acres and having genuine need of additional A land for maintenance of their families; (3) cooperative farming societies of harija:..s, adivasi and backward classes people, ( 4) coopera.tive farming societies consisting of la.ndless labourers or small holders and (5) any of the priority holders under the Waste Land Rules.

In pursuance to the aforesaid Resolution, the Collector by his Order dated July 18, 1967, granted 22 members belonging to Waghari Harijan Community B leasehold rights in resp'ect of bhatba lands for a period of 10 years.

The respondents questioned the validity of the Government Resolution dated December 28, 1966 and the Order of th:e Collector dated July 18, 1967 granting the lease, in their writ petitions.

They alleged that some of them were in possession of portions of the land of which th'ey had been dispossessed by the Order of the Collector by virtue of the eksal tenures created in their favour in the C auctions held in or about the year 1964 and that they could not be dispo81iC['ised without following the procedure prescribed by section 79(A) reOO with section 202 of the Bombay Land Revenue Code, 1879. Tirey also contended that the Government Resolution dated December 28, 1966 and the grants made by the CoJlector on the basis of the said Resolution w'ere liable to be struck down en

the ground that they were violative of Article 14 of the Constitution and that they had been arbitrarily deprived of an opportunity to offer bids at public auc- D tions and to a'Cquire Ieas'chold rights.

The State Government contested the petitions on the ground that none of the respondents was in possession of the lands in question on the d.afe of the writ petitions and that some of them who continued to remain in possession of certain portions of the land after the expiry of the eksal lease. were dispossessed in accordance with law and that the lands have been handed over to the grantees I: as per the Kabza receipts. The Resolution dated December 28, 1966, was pas,, ed in order to grant lease in respect of bhatha lands in flavour of the landless persons or persons having small extent of lands or persons belonging to Sche<lu1~

ed Castes, Scheduled Tribes and backward classes and members of cooperative societies at reasonable rent without being put to the necessity of offering bids at

public auctions, where only moneyed persons could become successful bidders.

The High Court quashed the Resolution on two grounds : (I) That the act of the State Government in passing the Resolution amounfed to a fraud on the Statute as the power of the State under the Code which was a taxation nwasure had been utilized for a collateral purpose of achieving a welfare scheme and (2) that the Resolution was violative of Article 14 of the Constitution as there was no rational nexus between the object to be achieved by th'e Code viz. realisation of land revenue and the classification of persons eligible for the grant of leasehold rights in r'espect of bhatha lands into several groups. It further directed the Sta.te Government qot to take into consideration the Government's circular issued pursuant to the impugned Resolution while considering the question of renewal of leases or disposal of bhatha lands and not to dispossess the writ petitioners except in due course of law.

Allowing the appeals,

HEID : 1 ( i) The Preamble of the Olde provides that it had been passed a• it was found exdient to consolidate and amend the law relating to Revenue

21-138 SCI/80

1184 S\Jl'iH.MB COURT REPORTS [1980] 2 s.c.a.

A Officers and to the assessment and recovery of Land Revenue and to other matters connected with Land Revenue Administration. [1193B].

(ii) The other provisions of th'e Code and the Rules made thereunder show that it is open to the Collector to dispose of unoccupied lands belonging to the Government either for cultivation or for any other purpose in favour of indivi .. duals or aggregate of individuals either fr'ee of charge or at an upset price to be fixed by him or by public auction.

A review of the several Government orders passed under the Code shows that lands belonging to Government had been oct apart free of charge for several public purposes such as free pasturage, burial grounds, roads, religious institutions, dhobies' ghats, potters' grounds, threshing floors 'etc.

Land revenue was remitted when therewere drought conditions.

Forfeited holdings were often given back to defaulters who had not paid land revenue once again, on payment of arrears out of compassion.

Tagavi loana were given by Government to occupants to improve lands. The dominant purpose of the Code, therefore appears to be public welfare, even though land revenu'e which was recoverable under the Code constituted an important source of revenue of the State Government.

[1196A-E]

(iii) After India became independent, land reform measures had to be intro-- duc'ed by the States in India to prevent concentration of land in a few hands and to impose ceiling on the extent of land that could be held by an individual or a family, to take possession of land from individuals or families which w"' in excess of the ceiling so imposed and to distribute such excess land amongst persons ltelonging to Scheduled Castes, Scheduled Tribes and other weaker •ections of society. All these laws were made in order to implement the Directive

Principles of State Policy contained in Articles 38, 39 and 46 of the comtitution by strengthening agrarian economy. Never before was there a greater need as during the post-Constitution period for administering land revenue laws in an equitable manner so that the economic interests of the_ weaker sections of the society and in particular of members belonging to Scheduled Castes and Schedul. ed Tribes are protected and promoted. [1196F-Hl

(iv) There is no provision in the Code or the Rules made thereunder which prohibits disposal of 'occupancy rights or leMehold rights in respect Of unoccupied lands in any manner other than public auction. [1197 Al

( v) The conclusion reached by the High Court that the basic scheme of the Code was the realization of land revenue by disposing Of unoccupied lands by public auction alone appears to be baseless.

[1197B]

(vi) The finding of the High Court that the impugned Resolution which provides for the disposal of bbabha lands amongst bona fide agriculturists, harijans, adivasis and backward class people and other persons mentioned therein without resorting to public auction but by having recou= to the procedure oct

out in it is contrary to the latter and the spirit of the Code is set aside.

[1197CJ

2(i) The Resolution is designed to bring about distribution of agricltural lands as best to sub<'erve the common gOOd thus eliminating concentration of wealth and means of production to the common detriment. It helps persons, who are in need of lands for their bare maintenance and who have otherwise no chance of getting them, to acquire lands at a low rate of rent. [11990]

GUJARAT v. v. D. CHATURBHA! (Venkataramiah, !.) 1185

(ii) The classification made in the impugned Resolution of persons or cooperative societies who are eligible to secure grants of leasehold rights, bears a reasonable relation to the object with which the Code is enacted. It cannot be characterised as arbitrary. There is no infirmity in the above classification. The Resolution aims at bringing about social and economic justice and assists people who are not strong enough to secure leasehold rights at a public auction for purpos'es of cultivation.

The leases to be granted oce not for any unlimited period.

[1199E]

(iii) The High Court was in error in holdng that the Resolution was vrolative of Article 14 of the Constitution. [1199F]

3. The High Court did not record any firm finding on the question of possession of any part of the land by any of the writ petitioners. The direction issued by the High Court to the State Government and the Revenue authorities not to dispossess the writ petitions except in due course of law therefore becomes unsustainable. [1191HJ

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 281-285 of 1970.

B "

From the Judgment and Order dated 25/28-4-1969 of the Gujarat High Court in SCA Nos. 1520, 850, 1079, and 1117 of 1967 and D 201 of 1968.

S. T. Desai, P. H. Parekh, C. B. Singh and M. N. Shroff for the Appellants.

Mrs. E. Udayarathnam for respondent No. 1 in CA 284/70.

The Judgment of the Court was delivered by

VENKATARAMIAH, J.-These five appeals by certificate are preferred by the State of Gujarat against the conunon judgment dated April 25/28, 1969 delivered in five petitions under Article 226 of the Constitution on the file of the High Court of Gujarat in which the constitutional validity of the Resolution of the Government of Gujarat bearing No. L, B.B. 3964/101585-C dated December 28, 1966 issuing directions regarding the procedure to be followed in the disposal of 'bhatha lands' with effect from January L 1967 inter alia providing for showing preference to Harijans, adivasis, backward class persons and co-operative farming societies c0nsisting of landless labourers or small holders in the matter of cultivation rights over bhatha land was challenged.

The expression 'bhatha land' means land which forms part of the bed of a river on which vegetables, melon, cucumber etc. can be grown during the lean period after the rainy season is over when the level of the water in the river is quite low.

The cultivation of this land is possible only till the next rainy season and when the river swells during the rainy season, the said land again gets sub- 1 merged under the river water. The occupancy rights over such land

G ,

cannot ordinarily be granted on a permanent basis as in the case of other cultivable lands in view of the land getting submerged under river water every year for 4-5 months.

The lands in question are situated in the Bombay area of the State of Gujarat. Till the year 1951, the cultivation rights over bhatha lands in the area in question were being disposed of by public auction and the successful bidders were being treated as lessees of the lands for short periods. In the year 1951, the State Govel"!lfilent ordered that the leasehold rights over bhatha lands should be disposed of by selection in the following oFder of priority:-

1. Bona fide agriculturists who had cultivated the land personally for five years or more.

2. Adjacent land holders who, in the Collector's opinion, had insufficient land for maintenance of their families.

3. Co-operative farming societies and

4. Priority holders under the Waste Land Rules.

The above order was cancelled and superseded by the Government Resolution dated September 19, 1962 which provided that on the expiry of the then existing leases, not held by co-operative farming societies, bhatha lands should be disposed of on the basis of five years' lease by public auction. Experience showed that only the moneyed people were abl.e to purchase the lease-hold rights at the public auction and p_ersons belonging to Scheduled Castes, Scheduled Tribes and other weajcer sections of society were not even able to participate in such auctions. In the year 1964 however, lease-hold rights over bhatha lands were disposed of on eksal basis by public auctiO!l.

The question relating to the procedure to be followed in the disposal of the lease-hold rights over bhatha lands was discussed at the meeting of the Collectors held in 1965-66 and after taking into consideration all relevant matters and the suggestions made at the above said meeting, the State Government passed the following Resolution in supersession of all existing orders:-

"Government of Gujarat Revenue Department No. L.B.B. 3964/101585-C

Sachivalaya, Ahmedabad-15 Date: 28-.12-1966

RESOLUTION OF GOVERNMENT In cancellation of all existing orders in regard to disposal of Bet and Bhatha land by auction, Government is pleased to direct that

existing procedure of disposal of Bhatha land by auction should discontinued from 1st January, 1967 and such land should be dis

posed of according to instructions detailed below:-

1. The existing lease held by co-operative society should be renewed on their expiry only to the members of cooperative society. Individually held land less than 16 acres excluding the bet-bhathi! land and the total holding of the number including the land to be granted is not more than the member or members 16 acres.

2. If condition ( 1) is fulfilled the lease in favour of the co-operative societies should be renewed for a further period of 10 years on payment of revised rent which should be fixed on the basis of the factor~ enumerated hereinafter instruction number ( 6) below.

3. As regards Bhatha lands which have been leased in favour of individuals such lease should not be renewed but on the expiry of such lease the lands should be disposed of to priority holders as enumerated in instruction No: 5 on payment of rent to be determined on the basis of factors "-numerated in instruction No. 6.

There will be no objection to renew the lease in favour of such individual if he is otherwise eligible as per principles fixed in this G .R.

4. As regards new Bet Bhatha lands which are to be disposed of for the first time they should also be granted to p_riority holders as mentioned in instruction No. 5, on the basis of rent charged for similar lands which have been disposed of as per instructions contained in the G .R. or which have been disposed of in the past by auction. ·

5. The priority fQI disposal of Bet Bhatha land should be as under:-

1. Bona fide agriculturists of the village who are holding lartd less than 5 acres. Preference in this case will be given to Harijan adivasi and backward class people.

2. Holders of the land adjoining the Bet Bhatha land holding land Jess than 16 acres and who in the opinion of Collector have a genuine need of additional lands for maintenance of their families.

Inter se preference in this case also will be as per (1) above.

3. Co-operative farming societies of Harijans, adivasi and backward class persons.

 A

4. Co-operative farming societies consisting of landless

. E

labourers or small holders.

5. Any of the priority holders under the waste land rules.

The individuals as well as co-operatives of the village in which the Bet Bhatha lands are ituated wiJl have their first priority while the individuals and co-operative societies of neighbouring villages within a radius of miles shall be given priority i!). the order of nearness from village where the Bet Bhatha Lands are situated.

If there are claims of two equal priority holders for the same land the disposal wiJl be by lots."

Thereafter twenty-two members belonging to Waghari Harijan community were granted lease-hold rights in respect of a J, hatha land for a period of ten years pursuant to the above Government Resolution by the Collector of Ahmedabad on July 18, 1967. The relevant part of the aforesaid order of the Collector dated July 18, 1967 rea~ as follows:-....

ORDER

No. C.B.A.R.E.V. 165 District Collector's Office Ahmedabad 18-7-67

It is hereby ordered that under mentioned twenty-two members of Waghari Harijan Ganotia Samuha Kheti Mandali (unlimited) Santhal, .have been granted lands for cultivation, out of the Govern- ,-( F men! BHATHA-LANDS, for the period of ten years each member not to have more than four acres of land, on the conditions hereinafter mentioned.

Names of members of the Waghari Harijan Ganotia Samuha Kheti G Mandali (unlimited)

TERMS

1. These lands are granted on the condition that Waghari Harijan Ganotia Samuha Kbeti Mandali (unlimited) must e get itself registered within one year.

2. Either the individual or a co-operative society shall not be

granted BET-BHATHA LANDS at more than one place.

3. Within the period of fifteen days from the date of the A harvest of the crop from BET BHA THA lands shall be paid np. Rules regarding snspension or remission of land revenne shall not be applica_ble to the realization of this rent.

4. The land shall be cultivated peronally by the grantee, unless under exceptional circninStances.

The decision of the B Collector regarding the xistence of such exceptional circumstances shall be final on this condition.

Lease shall be terminated, withont granting any compensation.

5. Rent shall be fixed d payable according to sections 6 and 7 of Government Resolution Revenue Department No.

C L.B.B. 3964-101585-G dated 28-12-1966.

6. All conditions mentioned in PATTA shall be complied with.

7. The Collector shall be authorised to revoke the lease deed before the expiration of the period of the lease. 0

8. Unless lease deeds are executd, the occupation of the land shall be treated as unauthorised one.

Besides conditions mentioned above, all conditions mentioned in Government Resolution Revenue Department No. L.B.B. 3964- 101585-G dated 28-12-1966 shall be applicable to this grant.

E This grant shall be valid for the period of ten years from the year 1967-68. This grant expires on 31-5-1977.

Lease deed to be executed and k.ept in record.

Sd/- Niranjan Singh, Collector, F Ahmedabad."

Aggrieved by the above grant, the petitioners in Special Civil Application No. 1079. of 1967 which was one of the writ petitions out of which these appeals arise questioned the validity of the Government Resolution dated December 28, 1966 and the order of the G Collector granting the.lease dated July 18, 1967 in favour of the said tweaty-two persons. lI1 the oti\er four petitions also, the said Resolution and certain grants made by the Collector were questioned.

The petitioners in all the petitions alleged that some of them were in posession of portions of the lands which had been disposed of by the order of the Collector by virtue of the eksal tenures created in their e

favour under auctions held in or about the year 1964 and they could not be dispossessed without following the procedure prescribed by

section 79-A read with section 202 of the Bombay Land Revenue Code, 1879 (hereinafter referred to as 'the Code'). One of them alleged that he was a permanent tenant of a portion of the land. They contended that the Govsirnment Resolution dated December 28, 1966 and the grants made by the Collector on the basis of the said Resolution were liable to be struck down on the ground that they were violative of Article 14 of the Constitution. Their main grievance was that they had been arbitrarily deprived of an opportunity to offer bids at public auctions and to acquire lease-hold rights. They prayed for the issue of a writ in the nature of mandamus directing the Stat~ Government and the Revenue authorities not to disposss them on the b_asis of the impugned Resolution of the Goverrup.ent and the orders of the Collector. The State Gove=ent and the other respondents in the writ petitions resisted the petitions.

After hearing the parties, the High Court quashed the Government Resolution and the grants made by the Collector holding that they were ultra vires the scheme of the Code and were also violative of Article 14 of the Constitution.

D The State Government was directed not to take into consideration the Government circular issued pursuant to the impugned Resolution while

conidering the question of renewal of leases or disposal of bhatha lands in question andnot to dispossess the writ petitioners except in due course of law.

The Siate Government has questioned the order made by the High Court in these appeals.

Before going into the question relating to the validity of the impugned Resolution and the grants made by the Collector, it is necessary to deal with the question whether any of the writ petitioners were in possession of the lands in question. The allegation made by them in this regard was denied by the State Government. In the course of the counter affidavits filed before the High Court, it was pleaded on behalf of the State Government that none of the writ petitioners was in possession of any portion of the lands in question on the date of the petition that some of them who continued to remain in possession of cerw, in portions of the land after the expiry of the eksal leases were dispossessed in accordance with law and that the land had been handed over to the grantees as per kabza receipts. Dealing with the question of possession, the High Court observed in the course of its order as follows:-

"The petitioners claim in these petitions that they were cultivating these lands as tenants, except the petitioner in ll Sp. C.A. No. 1079/11967 who claims to be a permanent tenant. The case of the petitioners was that at the relevant time they had been given Eksali (of one year) leases on the

GUJARAT v. v. D. CHATURBHAJ (Venkataramiah, J.) 1191

expiry of which their right of renewal was completely A taken away by the aforesaid circular.

The circular had completely fettered the discretion of the competent authorities under the Bombay Land Revenue Code, 1879, hereinafter referred to as 'the Code' and had created an absolute rule excluding the petitioners so much so that they could not even now give a bid at any public auction for these lands. Even though in Sp.

C.A. No. 1079/67 the case of the petitioner was of a lease in perpetuity the State had controverted this allegation and no such grant was produced. The case of the State was that the pe_titioner was in illegal possession after the Eksali lease in 1964. Therefore, even that case also stands on the same footing.

In view of the said disputed questions of facts which cannot be resolved by us, the petitioner, therefore, challenged the impugned circular on the grounds ( 1) that it is ultra vires the Code, especially as it creates an absolute rule excluding Jhe petitioners who would have been entitled under the provisions of the Land Revenue Code to get these le.ases by bidding at the public auction as per the relevant rules. The impugned order in this connection violates the policy of th~ Code which is to augment the Government revenue and which does not contain any policy of excluding any person from the disposal of these unalienated GovernJl!ent lan_ds, (2) the petitioners, further challenge the impugned order on the ground that it is discriminatory and violates Article 14 and the inequality is writ large on the face of the entire order especially the so called reservations in favour of Harijans, adivasis and backward class people are so excessive tt all the 1 GO per cent lands would get reserved for them under this policy of priority and the petitioners would be completely exclnded."

There is no reference to the question of possession of the land by

the respondents in any other part of the judgment of the High Court.

G From the portion of \he judgment extracted above, it is seen that the High Court did not record any firm finding on the question of posses

sion of any part of the land by any of the . writ petitioners. It, therefore, follows that the direction issued by the High Court to the State Government and the. Revenue authorities not to dispossess the writ petitioners except in due course of law beromes unsustainable.

H What remains to be considered in these appeals is whether the impugned Resolution and the orders of the Collector are valid or not.

There. is no dispute that the writ petitioners were not eligible under the impugned Resolntion for any grant being made in preference to, the grantees in these cases and if the impugned Resolution is valid, the grants made by the Collector becOl]).e unassailable. It is on ' account of the above position the writ petitioner challenged the validity of the Resolution passed by the Government on December 28,

1966. The High court quashed the said Resolutiou on two grounds:

(1) that the act of the State Government in passing the Resolution amounted to a fraud on the statute as the power of the State under the Code which was a taxation measure had bee.Jl utilized for a collateral purpose of achieving a welfare scheme and (2) that the Resolution was violative of Article 14 of the Constitution as there was no rational nexus between the object to be achieved by the Code viz. realization of land revenue and the classificatiop. of persons eligible for the grant of lease-hold rights in respect of bhatha lands into several group§..

On the first groun~, the H; igh Court observed as follows:-

"The Code in terms directs the statutory authority, the Collector to make disposal exercising his judicial discretion, of course, subject to the statutory rules or even subject to the orders of the Government which ha'!'.:e statutory force.

The whole purpose and object of the Land Revenue Code is never to exclude any citizen, and such exclusion by way of an absolute rules leaving no discretion even to the statutory authority would be completely beyond the scope of a regulatory measure.

This would be pJescribing the end and not prescribing means to an end.

The end has been laid down by the Legislature in this case and it is one of augmenting the land revenue, and for the purpose of revenue administration under this Code, if any dispos_!!l is made, the disposal would be ordinarily to augment land revenue. It may be that in exceptional cases, the authority may give remissio'n as in famine years or on other grounds which are specified under the scheme of the Code or the Rules.

The end which is envisaged to be achieved by the Code is one of getting revenue augmented which is the obvious end of any taxation measure.

The end which the impugned regulation seeks to achieve is totally a different end."

From a reading of the above observations of the High Court, it becomes obvious that the High Court felt that the Resolution which B had been passed with a view to showing preference to memberi belonging to Scheduled Castes, Scheduled Tribes and backward classes, landless persons who belonged to the weaker sections of

society and members of co-operative fanning societies did not subserve the object of the Code i.e. realization of maximum revenue.

The High Court also felt that there was no scope for the passing of any order or resolution in the nature of a welfare measure while admi\llsteiing the provisions of the code. In order to examine the correctness of the above view of the High Court, it is necessary to refer to some of the relevant provisions of the Code. The Preamble of the Code provides that it had been passed as it was found expedient to consolidate and amend the law relating to Revenue officers and to the assessment and recovery of Land Revenue and to other matters connected with the Land Revenue Administration. Chapters II and Ill o: the Code deal with constitution powers of!icers provision relating to the security to be furnished by certain Revenue officers and the

lia!>ility of principals and sureties.

Chapter V of the Code is entitled 'Of Lands and Land Revenue' and contains sections 37 to 59.

Section 3 7 of the Code declares that 'all public roads, loans and paths, the bridges, ditches, dikes, and fences, on, or beside, the same, the bed of the sea and of harbours and creeks below high watermark, and of rivers, streams, nallas, lakes, and tanks, and 8ll canals, and water-courses, and all standing and flowing water, and all lands wherever situated, which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any right of such persons may be established, in or over the same, and except as may be otherwie provided in any law for the time being in force are and are hereby declared to be, with all rights, in or over the same, or appertaining thereto, the property of the Government and it shall b.e lawful for the Collector subject to the order of the State Government, to dispose of them in such manner as he may deem fit, or as may be authorised by general rules sanctioned by the Government concerned, subject always to the rights of way, and all other rights of the public or of individual legally subsisting.' The aforesaid section 37 of the Code vests the rights in all properties referred to therein the State Government and provides that it is !awful for the Collector subject to the orders of the State Government to dispose of them in such manner as he may deem fit or as may be authorised by the general rules sanctioned by the Government. The State Government is thus .constituted the proprietor of the several items referred to therein.

While the Collector has been given the power of disposal of the land belonging to the Government, he can do so only in accordance with the other provisions of the Code and the Rules made thereunder and subject to any order or resolution passed by the State Government. The power of the State Government to make r•ders under section 37 (I) of the Code is not in tbe

pature of appellate or revisional powers which are dealt with separately under sections 203 and 211 of the Code but is iu the nature of an admiuistrative power enabliug the State Govergment to regulate the power of the Collector. Section 38 of the Code authorises the survey officers whilst survey operations are proctl_eding under Chapter VIII of the Code and at any other time the Collector to set apart lands which belonged to the State Government and not iu the lawful occupation of any person or aggregate of persons, in unalienated villages or unalienated portions of villages, for free pasturage for the village c, i_ttle, for forest reserves, or for any other pu{Jlic or municipal purpose; and lands assigned specially for any such purpose shall not be otherwise used without the sanction of the Collector.

Section. 39 of the Code restricts the right of grazzing on free pasturage-lands to the cattle of the village or villages to which such lands belong or have been assigned.

Section 44 of the Code recognizes the existence of certain privileges of villagers or of certaiu classes of persol1s to cut fire-wood or timber for domestic or other purposes even in the case of villages or lands in which the rights of the Government to the trees have been reserved under section 40 of the Code.

Section 48 of the Code sets out the manner of assessment and alteration of assessment of any land. It provides that the land .revenue leviable on any land shall be assess, d with reference to the use of the land-(a) for the purpose of agriculture, (b) for the purpose of building and ( c) for a purpose other than agriculture or building.

Sub-section (3) of section 48 of the Code empowers the Collector or a survey officer, subject to any rules rnaqe in this behalf, to prohibit the use for certain purposes of any land liable to the payment of land revenue and to summarily evict any holder who uses or attempts to use the same for any such prohibited purpose.

Chapter VIII lays down the procedure to be followed in the course of survey and settlement proceedings thus ensuring that there is an equitable classification of lands for purposes of levy . of just assessment in the light of the relevant economic factors.

The principles underlying the said procedure prohibit the levy of oppressive or excessive revenue.

There is no scope for levy of extortfonate revenue which may be termed as rackrent.

Chapter VI of the Code deals with tl; ie provisions relating to the grant, use and reliuquishment of land.

Section 62 of the Code which Jays down the conditions subject to which unoccupied land may be granted provides th_at the Collector may, subject to such ~Jes as may from time to time be made by the State Government, reqmre the payment of a price for uilalienated land or to sell the same by auction or to annex such conditions as he may deem fit. Rule 37 of the

Bombay Land Revenue Rules, 1921 (hereinafter referred to as 'the Rules') which are promulgated by the State Government in exercise of its powers under sections 213 and 214 of the Code provides that any unoccupied survey number not assigned for any special purpose may, at the Collector's discretion, be granted for agricultural purposes to such person as the Collector deems fit, either upon payment of a price fixed by the Collector, or without charge, or may be put up to public auction.

When land is granted under section 62 read with Rule 37, the grantee acquires a heritable and transferable occpancy right over the land granted, subject to the lawful conditions imposed under the grant.

The proviso to section 68 of the Code, however, provides that notwithstanding any provision in the Code, it shall not be unlawful f9r the Collector at any time to grant permission to any person to occupy any unalienated unoccupied land for such period and on such conditions as he may, subject to rules made by the State Government in that behalf prescribe and in any such cas~ the occupancy shall be held only for the period and subject to the condition~ so prescribed. Rule 32 of the Rules provides that land may be given free of price and free of revenue, whether in perpetuity or for a term, for any of the purposes specified in column 1 referred to in the table given below that rule viz. for sites for the construction at the cost of a municipality, a panchayat or other local bodies of schools or colleges etc., for sites used or to be used in connection with any scheme under the Community Develop

ment Programme, for sites used or to be used as market yards under the management of market committees established under the Gujarat Agricultural Produce Markets Act, 1963 etc. Rule 35 of the Rules empowers the Collector to exempt from payment of land revenue

without any limit lands used for sites of hospitals, dispensaries, schools etc.

Under Rule 41 of the Rules, land situated in the bed of a river !J.nd not included in a survey number can, save as otherwise provided in sections 46 and 64, ordinarily be leased annually by auction to the highest bidder for the term of one year or such further period as the Co_!lector may think fit and the accepted bid should be deemed to be the land revenue chargeable on such land. The language of this rule also enables the State Government to dispose of snch lands in any other equitable way.

This Rule, however, does not apply to a land which is situated in the bed of a river and which is included in a survey number. Rule 42 of the Rules empowers the Collector to dispose of unoccupied land required or suitable for building sites or other non-agricultural purpose either by public auction or in his discretian by private arrangement either upon payment of a price fixed by him, or without charge, as he deems fit.

A These and the other provisions of the Code and the Rules made thereunder show that it is open to the Collector to dispose of unoccupied lands belonging to the Government either for cnltivation or for any other purpose in favour of individuals or aggregate of individuals either free of charge or at an upset price to be fixed by him or by public auction.

A historical review of the several GoverllII1ent orders passed under the Code shows that lands belonging to Government had been set apart free of charge for several public purposes such as free pasturage, burial grounds, roads, religious institutions, village sites, cattle stands, dhobies' ghats, potters'. grounds, threshing floors etc. Land revenue was remitted when there were drought conditions.

Forfeited holdings were often given back to defaulters who had !J.Ot paid land revenue once again on payment of arrears out of compassion.

Tagavi loans were given by Govefl!illent to occupants to improve lands. Some of the Government orders relating to grants of lands to private individuals may be stated here by way of illustration.

An order passed by the Government of Bombay in the year 1931 authorised grant of laods to kolis and other wild tribes in jungle tracts without payment of any occupancy price.

Another order passed in 1924 directed that grants of waste lands to members belonging deprsed classes should be liberally made. An order of the year 1925 for grants of lands to co-operative societies free of charge. Liberal grants of lands were made to military pensioners at concessional rates.

All these orders were passed during the British rule by the State Government in exercise of its powers under the Code.

The dominant purpose of the Code, therefore, appears to be public welfare, even though land revenue which was recoverable under the Code constituted an important source of revenue of the State Govemmenl

After India became independent, land reforms measures had to be introduced by the States in India to prevent concentration of land in a few hands and to impose ceiling on the extent of land that could be held by an individual or a familY, to take possession of land from individuals or families which was in excess of the ceiling so imposed and to distribute such excess land amongst persons belonging to Scheduled Castes, Scheuled Tribes and other weaker sections of society.

All these laws were made in order to implement the Directive Principles of State Policy contained in Articles 38, 39 and 46 of the Constitution by strengthening agrarian economy. Never before was there a greater need as during the post-Constitution period for administering land revenue laws in an equitable manner so that the ecnnomic interests of the weaker sections of the society and in particular of members belonging to the Scheduled Castes and Scheduled Tribes are protected

aud promoted. It has to, be mentioned here that there is no provision in the Code or the Rules made thereunder which prohibits disposal -0f occupancy rights or lease-hold rights in respect of unoccupied lands in any manner other than public auction. When it is felt that it is necessary to acquire excessive lands in the hands of private individuals for distribution amongst the landless and other deserving persons, it is equally necessary to observe the same rule while distributing the land which belongs to the State Government. In view of the foregoing, we are of the view that the conclusion reached by the High Conrt that the basic scheme of the Code was the realization of land revenue by disposing of unoccupied lands by public anction alone appears to be baseless. We, therefore, find it difficult to agree that the impugned Resolution which provides for the disposal of bhatha lands amongst bonafide agriculturists, harijans, adivasis and backward elass people and other persons mentioned therein without resorting to public auction but by having recourse to the procednre set out in it is contrary to the letter a'nd the spirit of the code. We, therefore, set aside the finding of the High Court on the above question.

We shall now proceed to examine the question whether the impugned Resolution is violative of Article 14 of the Con3titution. The grievance of the writ petitioners was that they were denied the opportunity to acquire the lease-hold rights at the public auction as a consequence of the policy of disposal of bhatha lands contained in the Resolution.

The finding of the High Court on the above question appears to have been influenced by its view on the object with which the Code was enacted and this becomes obvious from the following observation of the High Court :-

"As we have already pointed out, the object sought to be achieved is completely a. collateral object and the criteria which are adopted for the alleged classification viz. the membership of the co-operative society and the persons being Harijans, Adivasis or backward class people have no rational nexus whatever to the object of augmenting land revenue, which would be the implicit object underlying the entire Code, including this statutory power of disposal of the said lands for the benefit of the public. The C-Ode never contemplated any exclusion of persons when such statutory power was sought to be exercised by the State by any statutory order.

Therefore, this statutory order clearly violates Article 14 of the Constitution and even on that ground it must be struck

down."

For the purpose of determining the question whether the impugned Resolution is violative of Article 14 of the Constitution or not, it is

necessary to examine whether the classification adopted by the State Government is based upon some intelligible differentia which distinguishes individuals and co-operative societies in whose favour grants of lease-hold rights in bhatha lands are required to be made by the Collector from others and whether the said classification bears any reasonable relation to the object underlying the Code. The High Court has proceeded on the basis that the classification made by the Resolution does not have any rational relation to the object of the Code which according to it was realization of revenue and nothing more than that.

We have explained earlier that the object of the Code is to make provision for an equitable distribution of available land amongst persons C who are in need of it. As mentioned earlier, the State Government is under an obligation to ensure that the ownership and the control of material resources of the community are so distributed as best to subserve the co=on good and the operation of the economic system does not result in the concentration of wealth and means of production to

the co=on detriment. In India which is predominantly an agricultural country, land forms the most important means of production. It is well known that unemployment among the masses is on the increase because employment opportnnities are not increasing at the same rate at which the population is increasing. Consequently we find in India to day a large number of landless persons and persons with uneconomic holdings in villages who are either unemployed or under-employed.

It is also equally well-known that persons belonging to Scheduled Castes and Scheduled Tribes form the bulk of such landless persons or owners of uneconomic holdings who are in need of special care.

It is also the settled policy of the State Governments to encourage co-operative movement, which is embarked upon with a view to preventing exploitation of ecbnomically weaker sections of society by others. The State Government in the instant case appears to have passed the impugned Resolution in order to grant leases in respect of bhatha lands in favour of landless persons or persons having very small extents of land or persons belonging to Scheduled Castes, Scheduled Tribes. and backward classes and members of co-operative societies at a reasonable rent without being put to the necessity of offering bids at a public auction where it is well known that only moneyed persons can become successful bidders. The impugned Resolution lays down the procedure to be followed in the disposal of lease-hold rights in respect of bhatha lands. It does not relate to all unoccupied lands available in the State of Gujarat. The total extent of bhatha lands available in the State of Gujarat when compared with other available unoccupied lands may be a very small extent. The writ petitioners on whom the burden of proving that the impugned

Resolution is discriminatory have not furnished any information about the extent of Bhatha lands available for disposal Clauses ( 1) and

(2) of the Resolution provide that the existing leases held by cooperative societies should be renewed on their expiry only in favour of the members of such co-operative societies subject to certain conditions for a further period of ten years on payment of revised rent which should be fixed on the basis of the factors referred to therein. Clause

(3) of the Resolution, provides that leases of bhatha lands granted in favour of individuals should not be renewed on their expiry but they should be disposed of in favour of bonafide agriculturists who belong to the weaker sections of society and co-operative farming societies on the basis of priority set out in clause (5) thereof. The rent payable by them should again be determined in accordance with the instructions given in the Resolution.

The Resolution is designed to bring about distribution of agricultural lands as best to subserve the common good thus eliminating concentration of wealth and means of production to the common detriment. It helps persons, who are -in need of lands for their bare maintenance and who have otherwise no chance of getting them, to acquire lands at a low rate of rent. -

The classification made in the impugned Resolution of persons or co-operative societies who are eligible to secure grants of lease hold rights, according to us, bears a reasonable relation to the object with which the Code is enacted. It cannot be characterised as arbitrary.

We do not find that there is any infirmity in the above classification.

The Resolution aims at bringing about social and economic justice and assists people who are not strong enough to secure lease-hold rights of a public auction for purposes of cultivation. The leases to be granted are not for any unlimited period. At the end of the period prescribed in the leases, it will be open to the Collector to dispose them of afresh.

In the above circumstances, we hold that the High Court was in error in holding that the Resolution was violative of Article 14 of the Constitution.

For the foregoing reasons, we allow these appeals, set aside the

common judgment and order passed by the High Court and dismiss G the writ petitions.

We feel that in the circumstances of the case, the State Government should pay the costs of respondent No. 1 in Civil Appeal No. 284 of 1970.

We order accordingly.

The other parties shall bear their own costs.

N.V.K.

Appeals allowed.

22-138 SCI/80

STATE OF GUJARAT & ANR

VAGHELA DAYABHAI CHATURBHAI & ORS

March 5, 1980

E. S. VENKATARAMIAH, JJ.

Constitution of India

Bombay Land Revenue Code 1879

Bombay Land Rerenue Rules 1921

Article 14

September 19, 1962

28th December, 1966

fanuary 1, 1967

July 18, 1967

section 79(A)

section 202

Bombay Land Revenue Code, 1879

Tirey

December 28, 1966

Article 14

Article 14

India

Articles 38, 39 and 46

Article 14

S. T. Desai

P. H. Parekh

C. B. Singh

M. N. Shroff

E. Udayarathnam

VENKATARAMIAH

Article 226

Bombay

Gujarat

1st January, 1967

Harijan

Co-operative farming societies

Waghari Harijan

Ahmedabad

sections 6 and 7

PATTA

Niranjan Singh

section 79

section 202

Bombay Land Revenue Code, 1879

Article 14

Article 14

Article 14

December 28,

1966

Article 14

Chapter V of the Code

sections 37 to 59

Section 3

section 37

section 37

sections 203 and 211

Section 38

Chapter VIII of the Code

Section 44

section 40

Section 48

section 48

Chapter VI of the Code

Section 62

Bombay Land Revenue Rules, 1921

sections 213 and 214

section 62

section 68

sections 46 and 64

Government of Bombay

Articles 38, 39 and 46

Article 14

Article 14

Article 14

Article 14


A VlNOD KUMAR CHOWDHRY

\I.

NARAIN DEVI TANEJA

January 11, 1980

[S. MURTAZA FAZAL ALI, P. S. KAILASAM AND A. D. KOSHAL, JJ.]

Delhi Rent Control Act, 1970-Sccfions 25A and 25B(8)--Scope of.

Clause (e) of the proviso to section 14(1) of the Delhi Rent Control Act provides that a landlord can evict a tenant of premises let for residential purposes on the ground thot the same were required by him bona fide for occupation as a residence for himself and thnt he bas no other reasonably suitable residential accommodation.

An appeal from the order of the Controller lies to the tribunal and a further appeal to the High Court.

In September, 1975, the Government of India took a decision that Govern .. ment employees owning houses in Delhi shall be required to vacate accommodation allotted to jhem by the Government within a period of three montlos from !st October. 1975. To avoid pro:edural delays in the matter of eviction of tenants from houses let out by (Jovernment servants who were required to shift to their own houses, Chapter ill A was introduced by an Amending Act. Section I4A which was added in Chapter III provided a right to a person in occupation of any residential premises allotted to him by the Central Government to recover immediate possession of the premises' let out by him in case he was required by the Government to vacate the residential premises allotted to him. The non-obstante clause contained in section 25A provides that .ithe provisions of this Chapter or any rule made thereunder shall have effect notwithstanding anything. inconsistent therewith contained elsewhere in this Act or any other law ; for the time being in force." Section 25B(B) pre>· vides that \Vhen "an order for the recovery of possession of any premises" has been made by the Controller on an application covered by section 25B no appeal or second appeal shall lie ther<:from.

The respondent's application under clause (e) of the proviso to section 14(1) of the Act was rejected by the Rent Controller on the ground that it was not legally permissible for her to CJbtain possession of the premises under the section because she had sought evic; tion only in respect of a part of the premises.

In the respondent's rev1s1on petition before the High Court the tenant contended that the petition 'vas incompetent because in view of the provisions of section 25B(B) the cnly remedy available to the respondent was by way of appeal under section 38. Rejecting this contention the High Court held that :ii petition for revision as envisaged by section 25B(8) lay against the order accept~ ing or rejecting an eviction application and against such an order alone.

Dismissing the tenant's appeal.

HELD : The remedy of the !aad la.dy against the order of the Controller in the present case was by way of revision (and revision only) of that order by the High Court under the proviso to section 25B(B), even though it -

V. K. CHOWDHRY V, N. D. TANEJA 747

an order not directing but by refusing rocovery of possession of the premises A in dispute. [756 G-Hl

The non-obstante clause in section 25A provides that whenever there is a conflict between the provisions of Chapter IIIA and those of the rest of the Act or of any other law in force the former shall prevail. If an application is made under cluse ( e) of the proviso to section 14 (I) it has to be dealt with in accordance with the procedure specified in section 25B and not under B the provision.:; contained in Chapters other than Chapter IIIA. Therefore, the procedure laid down in section 25A read with section 25B(1) envisages a shortcut to the conclusion of the proceedings before the Controller. Section 25B(8) further provides that when an order for the recovery of possession

of any premises has b'een made no appeal under section 38 or second appeal under section 39 shall lie. The combined effect of section 25A and section 25B(l) and (10) is that in wh>tever respect section 25B makes a departure C from the procedure prescribed in other chapters of the Act, the provisions of Chapter IUA shall prevail. [753 B-D; 754 DJ

The expresion "order for the recovery of possession of any premises" has to be construed, in the context in which it appears, as an order deciding an application for the recovery of possession of any premises; because, firstly, if an order in favour of the landlord alone was meant to be covered by sub-sec D tion (8) an order refusing such relief would be liable to be called in question by way of an appeal or second appeal under section 38 so that there would be two procedures for the end product of the Controller's proceedings being called in question, one when the same is in favour of the landlord and another when it goes against hi~ which would obviously entail discrimination B!Ild make the sub-section invalid. But if a provision can be construed in a manner which upholds its legal or constitutional validity it should, if possible, be so construed E rather than the other way round. [755 B-E)

All that sub-section (10) of section 25B states is that the procedure for the disposal of an application for eviction covered by subsection ( 1 ) shall be the same as the procedure for disposal of other applications by ControIIers except as provided in Chapter IUA. Sub-section (8) expressly takes away the right of nppeal or second appeal \Vhile providing the remedy of revision F instead. [747 E-F]

Section 14(7) does not require that an order for the recovery of possession of any pren1ises should contain a direction that the landlord would not be) entitled to obtain possession of the premises in dispute before the expiry of a period of six months from the date of the order. The sub-section itself declares

that such an order \\'ould not be executable before a certaiq perio4 has expired.

G The declaration is part of the law of the land and would be operative as such so that the landlady would not be entitled to execute the order before the expiry

of six months from the date thereof notwithstanding the fact that the terms of sub-section (7) have not been made part of the order. [757 C-DJ

Devi Singh v. Chaman Lal (1977) Rajdhani La.w Reporter 566; R. K. Parikh v. Uma Verma I.L.R. (1978) JI Delhi 78; Blwgwati Perslwd v. Om Perkhaslz (1979) Rajdhani Law Reporter 26; Mahavir Singh v. Kamal Narain (1979) Rajdhani Law Reporter 159 approved.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2691 of 1979.

Appeal bY Special Leave from the Judgment and Order dated 7-8-1979 of the Delhi High Court in Civil Revision No. 49/1979.

Y ogesh Kumar 1 ain and Mukul Rohtagi for the Appeal.

B. P. Bhandari, R. C. Bhatia and P. C. Kapoor for the Respondent.

The Judgment of the Court was delivered by

KosHAL, J. This appeal by special leave is directed against the judgment dated August 7, 1979, of a Single !udge of the High Court c of Delhi accepting a petition made by the landlady for revision of the order of an Additional Rent Controller (hereinafter called the Controller) of Delhi refusing to direct eviction of the tenant.

2. The landlady had sought eviction of the tenant from the premises in dispute on the ground covered by clause ( e) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act), namely, that she required them bona fide for occupation as a residence for herself. Her application being triable in. accordance with the procedure laid down in section 25B of the Act, the tenant sought the Controller's leave to contest it on grounds which were stated in his affidavit. The leave was granted and thereafter the tenant filed a written statement contesting his eviction which was ultimate!Y disallowed. The learned Controller held that although the landlady had proved that s.he required the premises bona fide for her own occupation, she was diseJ!titled to the relief claimed by her for two reaso~ which were (1) that she

had not proved service on the tenant of a notice under section 106 of the Transfer of Property Act, and, (2) that her application claimed eviction only in respect of a part of the premises Jet out which was riot legally permissible.

The landlady went up in revision to the High Court and the learned Single Judge reversed both the findings which had been decided by the Controller against her.

Two other points were raised before the High Court on behalf of the tenant. It was contended, firstly, that the petition for revision was incompetent in view of the provisions of sub-section (8) of section 2SB of the Act and that only an appeal as contemplated by section 38 thereof should have been instituted before the Rent Control Tribunal (hereinafter called the Tribunal).

The contention was negatived with the observation that a petition for revision as envisaged hy sub-section (8) above-mentioned lay against an order accepting or rejecting ari eviction application, and against such an order alone, as laid down in Devi Singh

v. Chaman Lal('), R. K. Parikh v.

Uma Verma( 2), Bhagwati Pershad v. Om Perkash( 3 ) and Mahavir Singh v. Kanwla Narain(').

The second contention was that the lease deed on which the landlady relied in support of the alleged tenancy was unstamped and therefore inadmissible in evidence. This contention was repelled for the reason that although the said deed was taken on the file subject to the objection made on behalf of the tenant, the objection was never pressed at the time of argument before the Controller. It was also observed by the learned Single Judge that the contention was practically meaningless as the tenant had never denied the tenancy in question.

In the result the learned Single Judge passed the i!!]pugned order directing the eviction of the tenant and, as already stated, that is th(l

crder impugned before us.

3. It has been vehemently contended before us on behalf of the tenant-appellant that the opinion of the High Court about the maintainability of the petition for revision of the order of the Controller is erroneous and that the only remedy open to the Iitndlady against that order was by way of appeal to the Tribunal under section 38 of the Act. In order to determine the acceptability of the contention it is necessary to undertake a somewhat dtailed exami11a.tion of some of the provisions of the Act, especiaJ!y those which were introduced by a 1976 amendment with effect from 1st of December, 1975.

4. The Act as originally framed provided for the control of rent' and of eviction of tenants.

Various safeguards were created by it to ensure security of tenure to tenants residing in the urban area of Delhi and the right of the landlord to evict his tenant was restricted in ambit so as to be available only if the existence of certain specified grounds was proved. Those grounds are enumerated in cliluses

(a) to (l) of the proviso to sub-section (1) of section 14 of the Act.

The ground contained in clause ( e) runs thus:

" ( e) that the premises let for residential purposes are G required bona fide l)y the landlord for occupation as a residence for himself or for any member of his family dependent upon him, if he is the owner thereof, or for any person

(1) (1977) Rajdhani Law Reporter 566.

(2) I.LR. (1978) II Delhi 786.

(3) (1979) Rajdhani Law Reporter 26.

(4) (1979) Rajdbani Law Reporter 159.

A for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential acco11111lodation;"

The jurisdiction to decide disputes arising under the Act was vested in Controllers and civil courts were divested thereof. Chapter VI of the Act made provision for appointment of Controllers, their powers and functions and appeals from their orders.

Out of the sections appearing in that Chapter there are three with which w~ are here concerned. They are sections 37, 38 and 39. Section 37 lays down the procedure to be followed by the Controller and sub-section ( 2) thereof states:

C "Subject to any rules that may be made under this Act, the Controller shall, while holding an inquiry in any proceeding before him, follow as far as may be the practice and procedure of a Court of Small Causes, including the recording of evidence."

D Section 38 lays down that from e¥ery order of the Controller made under the Act an appeal shall lie to the Tribunal who shall hJLve a.ll the powers of a court under the Code of Civil Procedure when hearing an appeal.

Section 39 provides for an appeal to the High Court against an appellate order passed by the Tribunal bu~ makes it clear that such a second appeal shall lie only if it in¥ol.ves E some substantial question of law.

On the 9th of September, 1975, the Central Government took a decision that Government employees owning houses within the Union Territory of Delhi shall be required to vacate accommodation aUotted

to them by the Government within a period of three months beginning with the Jst of October, 1975, and that in case they failed to vacate such acco11111lodation before the 1st of January 1976, they would have to pay therefor licence-fee equivalent to rent at the market .rate.

In view of that decision it became necessary to mak~ special provision for enabling such Government employees to evict their respective tenants and to shift to their own houses. It was also felt that procedural delays required to be cut down in the case of disputes between the landlord and the tenant when the landlord bona fide required the demised premises for his own occupation.

The Act was therefore amended by Ordinance No. 24 of 1975 which was eventuaJly replaced by the Delhi Rent Control (Amendment) Act (being Act No. 18 of 1976 and hereinafter referred to as the Amending Act). The Amending Act introduced in Chapter III of the Act section 14A which provided for a right to a person in occupation of any residential premises aUotted to him by the Central Government

or any local authority to recover immediate possession of premises let out by him in case he was required by the Government or the authority to vacate the residential premises allotted to him.

The only other change effected by the Amending Act was to add a new chapter, viz., Chapter IIIA, to the Act.

The chapter is headed "Summary Trial Of Certain Applications" and consists of three sections, viz., sections 25A, 25B and 25C, the first two of which may be reproduced in extenso:

"25A. The provisions of this Chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in

any other law for the time being in force." C

"25B. (1) Every application by a landlord for the recovery of possession of any premis-"s on the ground specified in clause ( e) of the proviso to sub-section ( 1) of section 14, or under section 14A, shall be de; ilt with in accordance with the procedure specified in this section.

"(2) The Controller shall issue summons, in r:eiation to every application referred to in sub-section (1), in the form specified in the Third Schedule.

"(3) (a) the Controller shall, in addition to, aiid simultaneously with, the issue of summons for service on

th~ tenant, also direct the summons to be served ]Jy registered post, acknowledgment due, addressed to the tenant or his agent empowered to• accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works_ for gain and may, if the circumstances 'lL!_he case so require, also direct the publication of the snmmons in a newspaper circulating in the locality in which th~ tenant is last knowri to have resided or carried on business or personally worked for gain. ·

(b) When an acknowledgment purporting to be signed by the tenant or his agent is received by the Controller or the registered article containing the summons is received back with an endorsement purporting to have been made by a postal employee tq the effect that the tenant or his agent had refused to take delivery of the registered article, t}le Con!roller may declare that there has been a valid service of summons.

"( 4) The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files au affidavit stating the ground on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pnrsuance of the summons or his obtaining such leave, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the applicant shall be entitled to aJ! order for eviction on the ground aforesaid.

"(5) The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause ( e) of the proviso to sub-section (1) of section 14, or under section

14A.

" ( 6) Where leave is granted to the tenant to contest the application, the Controller shall commence the hearing of the application as early as practicable.

"(7) Notwithstanding anything contained in sub-section (2) of section 37, the Controller shall, while holding an inquiry in a proceeding to which this Chapter applies,

follow the practice and procedure of a Court of Small Causes, including the recordirig of evidence.

"(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section:

Provided that the High Court may, for the purpose of satisfying itself that an order made by the Controller under this section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit.

"(9) Where no application has been made to the High Court on revision, the Controller may exercise, the powers of review in accordance with the provisions oi Order XLVII of the First Schedule to the Code of Civil Procedure, 1908.

' . :..--

" '

• ,

" ( 1 O) Save as otherwise provided in this Chapter, the procedure for the disposal of an application for eviction on the ground specified in clause ( e) of the proviso to subsection ( 1) of section 14, or under section 14A, 11hall be the same as the procedure for the disposal of applications by Controllers."

5. The non obstante clause occurring in section 25A makes it quite clear that whenever there is a conflict between the provisions of Chapter IHA on the one hand and those of the rest of the Act or of any other law for the time being in force on the other, the former shall prevail. Section 25B provides a special procedure for the determination of an application by a landlord claiming recovery of

possession from his tenant of the premises let out to the latter on either of two grounds, viz., those specified in clause ( e) of the proviso to sub-s'ection ( 1) of section 14 and in section 14A. Thus if such an application is based on the ground that the landlord requires the demised premises bona fide for his own occupation as a residential accommodation it has to be dealt with in accordance\

with the procedure specified in section 25B and not under the provisions contained in chapters other than Chapter IIIA, in so far as the latter are inconsistent with the for!I\er.

This follows directly from the provisions of section 25A read with those of sub-section

(1) of section 25B. That procedure envisages a short-cut to the. conclusion of the proceedings before the Controller and for that purpose makes the right of the tenant to contest the application of the landlord subject to the Controller's leave obtained on grounds specified in an affidavit. If no such affidavit is filed, the question Of leave does not arise nor that of a contest by the tenant. Furthermore, if the affidavit is filed but leave is refused, a contest by the defendant is again barred. In either case the proceedings immediately come to a termination by the passage of an order of eviction of the tenant. In case, however, the required affidavit is filed and leave to contest is granted, the Controller has ID embark on the usual inquiry but the .same has again to be conducted in conformity with the practice and procedure of a Court of Small Causes, including the recording of evidence.

This is the mandate of sub-section

(7) of section 25B, which makes a slight departure in the matter of practice and procedure from. that to be followed in other applications under the Act as laid down in sub-section (2) of section 37.

Sub-section (8) of section 25B makes another variation in the H procedure and states that when an order for the recovery of possession of any premises has been made by the •controller on an applier-;-,.;-~-

-~ '.

cation covered by sub-section (I) no appeal or second appeal shall lie therefrom. In the case of such an order therefore the provisions of sections 38 and 39 are specifically made inapplicable. The subsection further provides however for the remedy of revision by the fligh Court of any order made by the Controller under section 25B, a remedy which is not available to a party in a dispute not covered by Chapter IHA.

Reference may also be made here to sub-section (10) of section 25B pointedly.

That sub-section makes it clear that even in the case of applications falling under sub-section (1) of that section the procedure for their disposal by Controllers shall be the same as in the case of other applications, except as is provided in Chapter Ill A. The combined effect of section 25A and sub-section (1) and

(10) of section 25B is that in whatever respect section 25B makes a departure from the procedure prescribed in other chapters of the Act, the provisions of Chap.ter IHA shall prevail but that where that Chapter does not provide for a variation, applications covered by sub- D ' section (I) of section 25B shall be treated at par with all other applications for the purposes of procedure.

6. It is in the above background that the question as to whether an appeal to the Tribunal or a revision to the High Court was competent against the order passed in the instant case by the Controller has to be decided, and that brings us directly to the meaning of subsection (8) of section 25B.

The proviso to that sub-section gives power to the High Co.urt to revise "an order made by the Controller

under this section" which expreion is no doubt Ci\pable of being cogstrued as any order o~ whatsoever, nature passed by the Controller .-if

while acting in accordance with the procedure laid down in seetion , 25B. The proviso, however, has to be read as a legislative measure carved out of the sub-section to which it is appended and the order mentioned therein has to be regarded as an order of the type which

the snb-section speaks of, i.e. "an order for the recovery of possession of any premises made by the Controller in accordance with the procedure specified in this section." Thus, the order covered by §uh-section (8) (and therefore, by the proviso also) would be a final order disposing of an application on conclusion of the proceedings under sub-section ( 4) or sub-section (7) of secti.on 25B.

This line of reasoning does not present any difficulty.

7. Learned counsel for the tenant however argued that for an H order to be covered by sub-section ( 8) of section 25B it must be an order for the recovery of possession of any premises made by tl1e Controller.

According.to him, if an order does. not direct recovery

v. K. CHOWDHRY v. N. D. TANEJA (Kasha!, !. ) 7 5 5

of pos.session by the landlord from the tenant, it is not an order which sub-section ( 8) would embrace.

This contention, though not wholly implausible, runs counter to the decision in Devi Singh v. Chaman Lal (supra) which was followed in Bhagwati Prasad v. Om Prakash

(supra) and Mahavir Singh v. Kama! Narain (supra) and does not find favour with us. Sub-section(S) no doubt in terms speaks only of an order "for the recovery of possession of any premises" and does not mention one which refuses the relief of eviction to the landlord; but then it appears to us that the expression "order for the recovery of possession of any premises" has to be construed, in the context in which

it appears, as an order deciding an application for the recovery of the possession of any premises.

Our reasons in this behalf are twofold.

Firstly, if an order in favour of the landlord alone was meant to be covered by sub-section (8), an order refusing such relief would be liable to be called in question by way of an appeal or second appeal under section 38 so that there would be two procedures for the end-product of the Controller's proceedings being called in question; one when the same is in favour of the landlord, and another when it goes against him, which would obviously entail discrimination and make the sub-sectk>n suffer from a constitutional invalidity.

It is an accepted rule of interpretation that if a provision can lle

coristrued in a manner which upholds its lei:al or constitutional validity it should if possible be so construed rather thaQ the other way round.

We do feel that the language used is not happy but tllen it would not be doing violence to it if it is construed as just above stated.

Secondly, the scheme of the Act and the object of the introduction of section 14A and Chapter IHA into it by, the Amending Act make us form the opinion that sub-section (8) of section 25B is exhaustive of the rights of appeal and revision in relation to the proceedings held under that Chapter. Before the enforcement of the A.mending Act, all disputes between a landlord and his tenant were liable to be dealt with according to a uniform. procedure before the Controlle.r as also in appeal and second appeal.

No distinction was made between one kind of dispute and another.

When it was felt that the procedure prescribed in the Act defeated, by reason of the delay involved, the very purpose of an application made under clause (e) of the proviso to sub-section (1) of section 14, especially in the case of landlords who themselves held accommodation allotted by the Government or a local authority whlch they were required to vacate, section 14A and Chapter IIIA were introduced by the Amending Act so as to cut down the time-factor drastically, so much

so that a tenant was required to o)Jtain leave from the Controller for contesting an application for his eviction before he could put up his defence, and the Controller was given th_c power to refuse leave and straightway pass an order of eviction if he found that the grounds disclosed by the tenant in support of his right to dispute the landlord's claim were not such as would disentitle the landlord from obtaining an order of eviction.

Sub-section (7) further simpiilled the procedure on contest being allowed, even though sub-section (2) of section 37 itself provided for a procedure far simpler than ordic narily obtains in proceedings before a civil court.

Then there is sub-section (8) which provides for the abolition of the right of appeal and second appe>tl and replaces it by a power in the High Court to revise an order passed by the Controller.

That provision, as a part of the overall picture painted, must necessarily be construed as laying down procedure exclusive of that provided in sections 38 and 39, and we hold that the four cases relied upon by the High Court in rejecting the contention raised on behalf of the tenant were correctly decided.

8. In the way of the above interpretation of sub-section ( 8) of section 25B, the provisions of .sub-section (10) thereof do not pose a hurdle.

All that sub-section (10) states is that the procedure for the disposal of an application for eviction covered by sub-ection ( 1) shall be the same as the procedure for disposal of oilier applications by Controllers, except as. provided in Chapter llIA. Sub section (8) as interpreted by us governs an application covered by sub-section (1) of section 25B and expressly takes away the right of! appeal or second appeal, while providing tlie. remedy of revision instead.

As we have held the provisions of sub-section ( 8) to be exhaustive

of the remedies available to a person aggrieved by an order passed by the Controli.('r in applications triable under Chapter IHA, such applications fall outside the category of those which can be disposed of like other applications under sub-section (10) read with the pro visions contained in other chapters of the Act.

9. As a result of the above discussion we hold that the remedy of the landlady against the order of the Controller in the present case was by way of revision (and revision only) of that order by the High Court as laid do"!n in the proviso to s.llb-section ( 8) of sectlon 25B, even though it was an order not directing, but refusing recovery of pqssession of the premises in dispute.

10. Another contention raised on behalf of the tenant was that the order passed by the High Court while revising that of the Controller was illegal inasmuch as it did not specifically contain a direc•

v. K. CHO\VDHRY v. N. !J. TANE.JA (Koshal, J.) 757

tion that the landlady would not be entitled to obtain possession of A the premises in dispute before the expiration of a period of six months from the date of the order.

The contention seeks support from the provisions of sub-section (7) of s(!ction 14 of the Act which states:

"Where an order for the recovery of possession of any premises is made on the ground specified in clause ( e) of the proviso to sub-section {I), the landlord shall not ge entitled to obtain possession there-0f before the expiration of a period of six months from the date of the order."

Now this sub-section does not at all require that an order for the recovery of possession of any premises should contain a direction of

the type above mentioned.

On the other hand, the sub-section itselt declares that such an order wonk[ not be executable before a certain period has expired.

The declaration is part of the law of the land and would be operative as such so that the lndlady would not be entitled to execute the order made by the f!igh Court in her favour before the expiry of six months from the date thereof notwithstandfog the fact that the terms of sub-section (7) have not been made a part of that order.

11. The only other ground urged in support of the appeal was that the landlady had prayed for the te.nant's eviction from only a part of the premises and that such eviction could not legally be granted to her.

The contmtion embraces a question of fact which has been decided against the tenant by the High Court and for reconsidering which we do not find any reason.

12. In the result the appeal fails and is dismissed but with no order as to costs. p

P.B.R.

Appeal dismissed .

A VlNOD KUMAR CHOWDHRY

NARAIN DEVI TANEJA

January 11, 1980

S. MURTAZA FAZAL ALI

P. S. KAILASAM

A. D. KOSHAL, JJ.

Delhi Rent Control Act, 1970

section 14(1)

Government of India

Delhi

Central Government

section 25A

Section 25B(B)

section 25B

section 14(1)

section 25B(B)

section 38

section 25B(8)

section 25B(B)

V. K. CHOWDHRY V, N. D. TANEJA

section 25A

section 14

section 25B

section 25A

section 25B(1)

Section 25B(8)

section 38

section 39

section 25A

section 25B(l)

section 25B

section 38

section 25B

Section 14(7)

Mukul Rohtagi

B. P. Bhandari

R. C. Bhatia

P. C. Kapoor

KosHAL

section 14

Delhi Rent Control Act, 1958

section 25B

section 106

Transfer of Property Act

section 2S

section 38

section 38

1st of December, 1975

section 14

Chapter VI of the Act

sections 37, 38 and 39

Section 37

Section 38

the Code of Civil Procedure

Section 39

9th of September, 1975

1st of January 1976

section 14A

sections 25A, 25B and 25C

section 14

section 14A

Third Schedule

Third Schedule

section 14

section

14A

section 37

section 14

section 14A, 11

section 25A

Section 25B

section 14

section 14A

section 25B

section 25A

section 25B

section 25B

section 37

section 25B

sections 38 and 39

section 25B

section 25B

section 25A

section 25B

section 25B

section 25B

section 25B

section 25B

section 38

section 14A

section 25B

section 14

section 14A

section 37

sections 38 and 39

section 25B

section 25B

Koshal