SAHIB RAM ETC. v.

THE FINANCIAL COMMISSIONER, PUNJAB & OTHERS

February 24, 1970

[J, M. SHELAT AND C. A. VAIDIALINGAM, JJ.] Punjab Security of Land Tenures Act 10 of 1953, Section 18(1), sub ss. (i) & (ii)-Scope of-Whether to claim right of purchase tenant should have been in continuous occupation of land for 6 years before Act canie into force.

The question that arose for decision in thes.e writ petitions and civil appeals was whether a tenant, in order to claim' the right of purchase as agamst the land-owner, under s. 18(1) of the Punjab Security of Land Tenures Act X of 1953 should have been in continuous occupation of the land comprised in his tenancy for a minimum period of six years on the date when the Act came into force (April 15, 1953), or on the date when he files the application for purchase to the concerned authority under the Act.

A subsidiary point for consideration was whether the person who claims the right to purchase, should have been a tenant on the date when the Act came into force.

HELD : In order to claim a right of purchase as against the land owner s. 18 (1 ){i) of the Act, the minimum period of six years should have been completed at the time when the application for purchase by the tenant is made, and it is not necessary that he should have been a tenant of the land on April 15, 1953.

Provided the other conditions are satisfied such a tenant will be entitled to purchase the land. [808 G]

Section 18(1){i) gi"'s a right to a tenant to purchase the land; and E that right has to be examined when an application under s. 18 is made and cannot be denied on the ground that he was not a tenant for more than six years on April 15, 1953. There is no limitation placed under

cl. (i) of s. 18(1) that the tenant who exercises his right should be a tenant on the date of the Act or that he should have completed the period of six years on April 15, 1953 and there is no warrant for reading in s. 18(1) (i) clauses which it does not contain. It is eoough if the continuous period of six years has been completed on the date when the F tenant files the application for purchase of land. (808 CJ

When the object of the Act as seen from clause (ii) of section 18 (I) is to attract even a tenant who got back into possession of the land after the date of Act, there is no reason why a limitation shouh; l be read into clause (i) in respect of a tenant who is in possession of the land that he should have completed the period of six years continuous occupation even prior to the date of the Act.

G Clause (iii) dealing with tho third category of tenants, admittedly relates to a tenant evicted from the property even before the date of the Act and who was not in possession on the day when the Act came into force.

But, nevertheless, if such tenants had been in continuous posses~ sion for six years at the time of their ejectment which must be before the date of the Act they are entitled to purchase the prooertv, but that right must be exercised within a period of one year from the date of the H commencement of the Act. [807 BJ ' It stands to reason that the tenants coming under clause (i) and (ii) who are in actual possession of the land have been given the option

A either to continue as tenants and pay rent or to exercise their right to purcbase the land at any time. There is no question in their case of there being any time-lagor doubt because, being in possession no other person's right wilt normally be affected; whereas in the case of a tenant coming under clause (iii), he bas already gone out of the land and therefore the Legislature bas specifically provided a very short period of one year from the oate of the Act for exercising, if he so chooses, his right to

B purchase the land provided he satisfies the other conditions mentioned in the section. [807 F-HJ

GaT>pat v. Jagmal, (1963) Punj. L.R. 652; Amar Singh v. Stat,, of Punjab, I.L.R. [1967] 2 Punj. & Har. 120; Mam Raj v. Srate of Punjab, I.L.R. [1969] 2 Punj. & Har. 680; distinguished.

ORIGINAL JURISDICTION : Writ Petitions Nos. 116 and 190 to C 214 of 1968.

Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights; and Civil Appeals Nos. 2356 and 2357 of 1966 and 1508 to 1514 and 1471 of 1968.

D Appeals from the judgment and order dated October 1, 1963 of the Punjab High Court in Civil Writ Nos. 715 of 1963 etc.

S. K. Mehta, K. L. Mehta and Sona Bhatiani, for the petitioners (in all the petitioners) and the appellants (in C.As.

Nos. 1508 to 1514 of 1968).

E. C. Aganval, for respondents Nos. 5 and 6 (in W.P. No. 116 of 1968) and respondent no. 5 (in W.P. Nos. 191 and 209 of 1968 and C.As. Nos. 1508 to 1514 and 1471of1968).

The Judgment of the Court was delivered by

Vaidialingam, J. The common question that arises for con- F sideration in all these writ petitions filed under Art. 32 and the civil appeals, on certificates granted by the High Court, is whether a tenant, in order to claim the right of purchase as against the landowner, under s. 18 ( l) of the Punjab Security of Land Tenures Act, 1953 (Act X of 1953) (hereinafter referred to as the Act), should have been in continuous ocupations of the land comprised G in his tenancy for a minimum period of six years, on the date when the Act came into force (April 15, 1953), or on the date when he files the application for purchase to the concerned authority under the Act. A subsidiary point also arises for consideration viz., whether the person who claims the right to purchase, should have been a tenant on the date when the Act came into H force.

The circumstances under which these writ petitions and appeals arose, may be briefly stated.

We shall first take up for consideration Civil Appeal No. 2356 of 1966.

Respondents 2 and 3, who are the tenants under the appellant land-owner, in this appeal, filed on January 10, 1961 betore the Assistant Collector, I Grade, Fazilka, an application under s. 18 ( 1) of the Act for purchase from their land-lord 19 acres and 7 kanals of land comprised in their tenancy.

Their case was that they had been in continuous occupation of the land comprised in their tenancy for a minimum period of six years and, as such, they were entitled to purchase the land.

Their claim was resisted by the appellant land-owners on the ground that it was only those tenants who had completed a continuous period of six years of tenancy prior to the commencement of the Act who were entitled to purchase the land under s. 18 ( 1) of the Act and as the applicants did not satisfy that test, the application was not maintainable. The Assistant Collector, by his order dated March 29, 1961 over-ruled the objections of the land-owners and held that the application filed by the tenants was maintainable as similar purchase applications had been entertained without regard to ainy date of completion of six years of continuous tenancy and in this view the matter was directed to be posted for further hearing.

The appellants challenged this order of the Assistant Collector by an appeal taken before the Collector, Ferozepore. The Collector, by order dated June 9, 1961 reversed the order of the Assistant Coliector and held that no tenant who had not been in continuous possession for six years on the commencement of the Act could apply, under s.18 (1) of the Act, for purchasing the property and that the six year period should have been completed at the time the Act came into force. In this view he held that the application filed by the tenants was not maintainable.

The tenants carried the matter in appeal before the Additional Commissioner, J ullundur Division, who, by his order dated December 14, 1962 agreed with the Collector and dismissed the appeal. The tenants went in revision before the Financial Commissioner, Revenue, Punjab, who, by his order dated April 24, 1963 reversed the orders of the Collector and the Additional Commissioner. The Financial Commissioner held that the right of purchase under s. 18 (1) of the Act could be exercised by a tenant whose tenancy existed on the date of the commencement of the Act and who has been in continuous occuption of the land comprised in his tenancy for a minimum period of six years on the date of the application for the purchase of the land and the land has not been inCluded in the reserved area of the land-owner.

The Financial Commissioner further held that a tenant who. on

the date of the application for purchase, own or holds land exceeding the permi; s1ble area will not be entitled to purchase the land under his tenancy.

After setting aside the orders of the Collector and the Additional Commissioner, the matters were remanded to the Assistant Collector, Fazilka, for a decision on merits.

The appellants-land owners filed Civil Writ No. 715 of 1963 in the High Court of Punjab to quash the orders of the Financial Commissioner, Revenue, Punjab.

The tenants of certain other properties had also filed applications for purchase and their landlords had filed Civil Writ No. 716 of 1963 before the Punjab High Court. Both these Civil Writ Petitions were disps ed of by common judgment of th~ High Court, dated October

I, 1963. After a consideration of the scheme of the Act and in particular the provisions of s. 18, the High Court held that to have the benefit of s. 18(1) (i), the tenants must be in continuous occupation of the land under their tenancies for a period of six years on the date of making the application for purchase under that section. Accordingly the High Court agreed with the views expressed by the Financial Commissioner on this point and left open for consideration by the Assistant Collector certain other aspects that appear to have been pressed on behalf of the tenal!lts.

Civil Appeals No. 2356 of 1966 and 2357 of 1966 are directed against the orders passed in Civil Writ Petitions Nos. 715 and 716 of 1963 respectively.

Similarly, a group of eight civil writ petitions had been filed by other land-owners before the Punjab and Haryana High Court challenging the orders passed by the Financial Commissioner, Revenue, upholding the right of the tenants to purchase the lands concerned. Civil Appeals Nos. 1471 of 1968 and 1508 to 1514 of 1968 are directed against the orders passed by the High Court dismissing those writ petitions.

Certain other land-owners had contested the maintainability of applications filed by their tenants for purchase under s.18 (1) and had made request to the concerned authorities to stay the proceedings and await the decision of this Court in Civil Appeals No. 2356 and 2357 of 1966. Apart from questioning the maintainability of the application filed by the tenants and the jurisdiction of the authorities to entertain those applications, certain other contentions had also been taken by the landlords.

Stay of proceedings asked for by the land-owners was declined by the authorities and finally, by the Financhl Comm; ssioner, Revenue, by his order dated Febmary 29, 1968.

Against this common order Writ Petitions Nos.- 116 of 1968 and 190 to 214 of 1968 have been filed, under Art. 32. In those Writ Petitions

the jurisdiction of the authorities to entertain the applications under s. 18, filed by the tenants, arises for consideration.

At the outset we may state that in all these matters we are giving our decision only regarding the interpretation of s. 18 of the Act with special reference to the points mentioned at the beginning of this judgment, and any other matters which may arise for consideration in these proceedings are left open to be :ldjudicated upon by the appropriate authorities concerned, before whom proceedings may be pending.

On behalf of the land-owners, Mr. B. R. L. Iyengar, learned counsel, after a reference to the material provisions of the Act, urged that the interpretation put on s. 18 by the High Court is agaihst the entire scheme of the statute and that such an interpretation will defeat the very object and purpose for which the Act had been passed. Counsel pointed out that the Act clearly indicated that the lands treated as surplus area were exclusively intended for being utilised for re-settlement of tenants already ejected from the land or who were liable to be ejected under s. 9 ( 1 )( i) of the Act. He further pointed out that if the test of six years' continuous occupation, dealt with under s. 18 of the Act, is considered to be satisfied with reference to the date when the application for purchase is made by a tenant, as held by the High Court, there will be a conflict between s. 10-A and s. 18.

Counsel finally urged that having regard to the scheme of the Act, continuous possession for a minimum period of 6 years under s. 18 of the Act must be such possessi0t11 on the date the Act came into force viz., April 15, 1953 and tenants who did not satisfy this condition were not entitled to exercise the right of purchase under s. 18.

Mr. S. V. Gupte, learned counsel appearing for the tenants, on the other hand pointed out that the object of the Act was to put a ceiling on the extent of property that could be held by a tenant or a landlord and for stabilising tenancies of long duration and confer on such tenants the right of pre-emption and a right of purchase. . Counsel pointed out that the' Act did not snap the relationship of landlord .and tenant, but, on the other hand, tried to maintain the same. There was no prohibition, he pointed out, anywhere in the Act against creation of new tenancies after April 15, 1953. He further urged that the scheme of the Act clearly indicated that apart from other rights, a right of purchase was given to a tenant who was in actual po<session of the land and if the tenant satisfied the requirement of having been in continuous possession for a minimum period of six vears on the date of his filing an application for . purcha~ ... ~· 18 ( 1) ( i) would stand attracted.

It was also urged that havtng due regard to the various

provisions of the Act, there was no warrant to restrict the rigt of purchase under s. 18(1)(i) only to a $enant who had been n continuous occupation of the land for a minimum period of six years on the date of the coming into force of the Act.

The other learned counsel, appearing in some of these matters either for the landlords or for the tenants have adopted the arguments of Mr. Iyengar and Mr. Gupte, respectively.

It is necessary to broadly consider the general scheme of the Act in the first instance.

The Act came into force on April 15, 1953 and it was to provide for the security of land tenure and other incidental matters.

The Act has been amended from time to time in 1953, 1955, 1959 and 1962. Under the Act, as originally passed, it is to be noted that there were two other sections viz., ss: 7 and I 5, which were later omitted. Even under s. 18, originally the period provided was 12 years. By the amend, ment Act, Punjab Act XI of I 955, the period was reduced to 6 years.

As Mr. Iyengar, in the course of his arguments, has referred toss. 7 and 15, we silall just refer to the substance of those provisions.

Section 7, dealing with the minimum period of tenancy, provided that no tenant on land other than the reserved area of a landowner shall be liable for ejectment before the expiry of a period of ten years from the commencement of the Act or from the commencement of his tenancy, whichever is later, and this was notwithstanding anything to the contrary contained in any other law and except as provided by the Act. Section 15 is a corollary to s. 7 and it provided that when a tenant, after the expiration of the period specified in s. 7 has been allowed to hold over, his tenancy shall be deemed to have been renewed for a further period of 10 years commencing from the date of his expiration, on the same terms and conditions. The object of Mr.

Iyengar relying upon these provisions was to show that the only protection intended to be given to tenants on land other than on the reserved area of a landowner was to give a fixity for a period of 10 years and, if such tenants hold over, the tenancy was orotected for a further period of 10 years. These sections, which have been subsequently deleted, do not, in our opinion, lend any supoort to Mr. Iyengar in the interpretation to be placed on s. 18.

By the Punjab Amendment Act XI of 1955, certain amendments were made in the parent Act.

Section 2 ( 5-a) defining 'Surplus Area' was introduced by this Amendment. Section 7 of the original Act was deleted. Section 10-A was introduced and the period of 12 years in s. 18 was

substituted by a reduced period of 6 years. Section 16 of the original Act was substituted by a new section.

Section 15 of the original Act was omitted by the Punjab Act XXXII of 1959.

One of the amendments in 1962 was the substitution of the new section 6 in the place of the old section.

We shall now refer to the material provisions of the Act, as it stands at present.

We have already mentioned that the Act was passed to provide for the security of land tenure and other incidental matters. Section 2 defines the various expressions. In particular, it is only necessary to refer to the definition of the expressions 'permissible area', 'reserved area' and 'surplus area'. 'Permissible area' under s. 2 ( 3), in relation to a landowner or tenant means thirty standard acres and where such thirty standard acres on being converted into ordinary acres exceed sixty acres, such sixty acres. It is not necessary to refer to the proviso. 'Reserved area', under s. 2(4) means the area lawfully reserved under the Punjab Tenants (Security of Tenures) Act, 1950 as amended by President's Act of 1951. Section 2(5-a) defines 'surplus area'. Broadly speaking, 'permissible area' related to the thirty standard acres which a landowner or a tenant could possess and the 'reserved area meant the area lawfully reserved under the Act of 1950, as amended by President's Act of 1951. That will be an ar~ which the landowner will be entitled to choose for himself from his holdings in order to enable him to have the pem1issible area of thirty standard acres. Generally speaking, excess lands not covered by the reserved area and not in the possession of any tenant will be the surplus area so far as a landowner is concerned.

Section 5 gives a right to a landowner who owns land in excess of the permissible area to reserve out of the entire land held by him in the State of Punjab any parcel or parcels not exceeding the permissible area. Section 5-A makes it obligatory on a landowner and tenant holding land in excess of the permissible area

to furnish a declaration in the manner and within the period pro- G vided therein.

Section 5-B( 1) enables a landowner who has not exercised his right of reservation under the Act to select his permissible area and intimate the selection to the au!hority concerned. in the manner and within the period stated therein. Sub-s. '

(2) gives power to the prescribed authority in cases where a landowner fails to select his permissible area to select the parcel ff or parcels of land which such landowner may be entitled to retain under the Act.

Anv transfer of land. excepting those mentioned under s. 6, made between August 15, 1947 and February

SAlUB RAM v. FIN. COMMR. (Vaidialingam, J.) 803

2, 1955 will not affect the rights of tenants of such land under !he Act. Section 8 safeguards the continuity of a tenancy. Section 9 provides for the conditions under which a tenant is liable to be evicted and under sub-s. ( 1 )(i) a tenant on the area reserved under the Act or is a tenant of a small landowner can be evicted.

But, under s. 9-A, a tenant liable to ejectment under cl. (i) of sub-s. ( 1) of s. 9, cannot be dispossessed unless he is accommodated on a surplus area in accordance with the provisions of s. 10-A or otherwise on some other Iand by the State Government.

Section 10 gives a right of restoration to a tenant who. has been eje<:ted from any land itn excess of the permissible area between August 15, 1947 and April 15, 1953 provided the land is under self-cultivation and the ejectment has been on grounds other than those mentioned ins. 9. Under sub-s. ( 4) of s. 10, in case of such restoration, the landowner or any other person in actual possession is entitled to such compensation as may be determined by the Assistant Collector from the tenant intended to be restored.

Section 10-A gives power to the State Government or any officer empowered by it in that behalf to utilise any surplus area for the resettlement of tenants ejected or to be ejected under cl. (i) of subs. (1) of s. 9.

It will be seen that while providing for eviction of a tenant from a reserved area under s. 9 (1 )( i), that tenant is safeguarded by s.9-A providing that his dispossession shall not take place unless he is accommodated on a surplus area and s.l 0-A provides for utilisation of surplus area for resettlement of tenants ejected or to be ejected under cl. ( i) of sub-s. (1 ) of s. 9. These three provisions are interlinked and inter-connected. The Explanation to s. 10-A (b) makes it clear that the utilization of any surplus area will not affect the right of a landowner to receive rent from the tenant so settled.

Section 12 provides for the quantum of rent payable by a tenant for the land held by him. Section 14-A provides for the procedure to be adopted by a landowner desiring to eject a tenant under the Act. Under s.16, excepting in the case of lands acquired by the State Government or by a heir by inheritance, no transfer or disposition of land after February 1, 1955 shall affect tke rights of the tenant thereon under the Act. Section 17 gives to the tenants mentioned therein, a right of preemption. ·

The various provisions, referred to above, in our opinion, clearly indicate that the Act does not snap the relationship of landlords and tenants once and for all. In fact that relationship is fairly well prt:ierved and a limited right of evicting tenants is given to the landlord and an obligation to pav rent is also cast upon the tenant. But, in respect of tenailtS who -are evicted or are liable to be evicted under s.9(l)(i} of the Act. provision

804 SUPREME COURT llEPOllTS [1970) 3 S.C.ll.

is made for re-settling them under s.9-A read with s.10-A of the Act. Such re-settlement does nof affect the right of the landowner to receive rent from the tenant. . The provisions of s.6 and s.16 also indicate that excepting the particular types of transactions, referred to therein, no other, dealing with the property by. the landowner will affect the rights that the tenant has under the Act.

In fact these two provisions take in cases of transfer prohibited thereunder after August 15, 1947 and also subsequent to the date of the coming into force of the Act. It will also be noted that the definition o( 'surplus area' under s.2 ( 5-a) and s.l 0-A giving power to the State Government to uti!Lo.e the surplus area for re-settlement of the tenants were both brought in by the Amendment Act of 1955 and with retrospective effect from the date of the original Act, viz., April 15, 1953

We then come to the material section, s.18, which is as follows:

"18 (l) Notwithstanding anything to the contrary contained in any law, usage of contract, a tenant of a land-owner other than a small land-owner-

( i) who has been in continuous occupation of the land compri1ed in his tenancy for a minimum period of six years, or

(ii) who has been restored to his tenancy under E the provisions of this Act and whose periods of ontinuous occupation of the land comprised in his tenancy immediately before ejectment and immediately after restoration of his tenancy together amounts to six years or more, or

(iii) who was ejected from his tenancy after the F 14th day of August, 1947, and before the commencement of this Act, and who was in continuous occupation of the land comnrised in his tenancv for a period of six years or more immediately before his ejectment, shall be entitled to purchase from the land-owner the land so held bv him but not included in the rese..Yed G area of the land-owner, in the case of a tenant falling within clause (i) or clause (ii) at any time, and in the case of a tenant falling within dame' (iii) within a period of one year from the date of commencement of

thi' Act:

Provided that no tenant referred to in this -sub- H section shall be entitled to exercise anv such i"ght in respect of the land or any portion thereof if he had

sublet the land or the portion, as the case may be, to any other person durig any peri~ of his continuous occupation, unless dunng that penod the tenant was suffering from a legal disability or physical _infinnny, or, if a woman, was a widow or was 1mmamed; Provided further that if the land intended to be pur-

B chased is held by another ten31llt who is entitled to preempt the sale under the next prceding section, and wo is not accepted by the purchasmg tenant, the tenant 1n actual occupation shall have the right to pre-empt the sale.

" . .

Section 18(2) deals with the procedure to be adopted by the tenant who is desirous of purchasing land.

Sub-s. ( J) provides for the purchase price being three-fourths of the value of the land detennined by the Assistant Collector.

Under sub-s. ( 4) it is open to the tenant to pay the purchase price either in a lump-sum or in six-monthly instalments not exceeding ten. It further provides that on the purchase price or the first instalment thereof being deposited, a tenant shall be deemed to have become the owner of the land. The other matters dealt with in s. 18 are not necessary to be gone into.

Under s. 18 ( 1) three categories of tenants have been given a right to purchase from the land-owner the land so held by him, but not included in the re1erved area of the land-owner and they are ( i) a tenant who has been in continuous occupation of the land for a minimum period of six years; (ii) a tenant restored to his tenancy Uillder the Act and whose period of continuous occupation of the land comprised in his tenancy immediately before ejectment and after restoration amounts to six years or more; and

(iii) a tenant who was ejected from his tenancy after August 14, 1947 and before April 15, 1953 and who was in continuous occupation of the land comprised in his tenancv for a period of six years or more immediately before his ejectment.

Before dealing with the first category, we will refer to the tenants coming under categories (ii) and (iii). Regarding the second category, the period of occupation bv a tenant both prior to and after the date of the Act are taken into acoount for computinit the oeriod of occuoation of six yean or more. tit is thus clear that the occuoation bv him for part of the period which will be after the date of the Act is admittedlv taken into accnunt to give him a riitht to ourcha1e the land.

He also represents the tyne of tenants whn1e 001se11ion has been disturbed prior tn the date of the Act and who itets ons<es1ion a1rain bv virtue of being restored under the Act to his tenancy and such pnsse<s; on is counted in his favour.

For persons coming in category (ii),

there ii; no time limit within which they should exercise the right to purchase. On the other hand s. 18 ( 1) clearly gives such persons a right to purchase the land at any time.

Category (iii) deals with tenants who have been ejected after August 14, 1947 and before April 15, 1953, but prior to such eviction they have been in continuous occupation of the land for six years or more.

Admittedly, such persons were not in possession of the land as tenants on the date when the Act came into force, i.e., on April 15, 1953. But, nevertheless,, if such a person who has been evicted during the particular period abovementioned had been at the time of his ejectment in continuous occupation of land comprised in his tenancy for a period of six years or more, he is given a right to purchase the land. That is, a person who had lost all contact with the land on the date of the Act as a tenant, and who was not in possession on the date of the coming into force of the Act, is also given a right to purchase the land provided his ejectment was after August 14, 1947 and 'before April 15, 1953. For a tenant coming under this category the section provides that he must exercise his right to purchase within a period of one year from the date of commencement of the Act.

Coming to clause (i) of s. 18 (l ), that clause does not expressly state as to when the tenant referred to t.lterein should have completed his continuous occupation of a minimum period of six years. According to the land-owners, such a tenant must have 'Completed the period of six years on April 15, 1953, whereas, according to the tenants it is enough if the period of six years had been completed on the date when an application for purchase is made. The question now is whether the scheme of the Act indicates whether the six year period should have been completed on April 15, 1953, the date when the Act came into force.

In our opinion, having due regard to the scheme of the Act, there is no warrant for importing any such restriction in s. 18 (1)

(i) of the Act. If the intention of the Legislature was that the tenant under s. 18(l)(i) should have been in continuous occupation for a minimum period of six years on the date of the Act,, it would have been specifically so provided for in the said clause.

There is also intrinsic evidence in s. 18 ( 1) (i) itself that it is not necessary for a person coniing under sub-cl. (i) that he should ha'lt: completed his continuous occupation of six years on the date of the Act.

We have already referred to the category of tenants coming under cl. (ii) and shown that the Act recognizes their possession for a period a part of which must certainly be subsequent to the commencement of the Act. When the object of the Act, as seen from cl. (ii) is to protect even tenants who get back into possession of the land after the date of the Act, we do not see any reason why a limitation should be read in cl. (i)

: i

SAHIB RAM v. FJN.COMMR. (Vaidialingam, J.) 807

A in respect of a tenant who is in possession of tht land that he should have completed the , period of six years of continuous occupation even prior to the date of the Act.

There is an additional reason why we cannot read any such limitation into cl. (i). Clause (iii) dealing with the third category of tenants, admittedly relates to a tenant evicted from the property even before the date of the Act and who was not in possession on the day when the Act came into force. But, nevertheless, if such tenants had been in continuous possession for six years at the time of their ejectment which must be before the date of the Act, they are entitled to purchase the prope1ty, but that must be exercised within a period of one year from the date of the commencement of the Act. If Mr. Iyengar's contention that the tenants in category (i) should have completed the continuous period of six years on the date of the Act is correct, such tenants and tenants coming under category (iii) will be on a par in that both would have completed their period of six years before the date of the Act. Nevertheless in the case of tenants coming under category (iii) , the Legislature has specifically stated that they must exercise their right of purchase within a period of one year from the date of the Act wheteas in the case of tenants coming under cl. ( i) they could exercise the right at any time. This itself clearly indicates that the tcmants coming under category {i) are entirely different from the tenanf$ coming under category (iii). If both types of tenants coming under clause ( i) and clause (iii) stand on the same footing, the position would be that both would have completed the period of continuous occupation of six years prior to the Act and the Legislature would have provided that both should exercise the right of purchase within a period of one year.

The distinction made regarding the period within whicli these two categories can exercise their right, clearly indicates the intention of the Legislature to the contrary. It stands to reason that the tenants comin11 under clauses (i) and (ii) who arc in

actual possession of the land have been gives the option either to continue as tenants and pay rent or to exercise their right to purchase the land at any timt. There is no question in their case of there being any time-lag or doubt because, being in possession no other person's right will normally be affected; whereas in the case of a tenant coming under cl. (iii), he has already gone out of the land and therefore the Legislature has specifically provided a very short period of one year from the date of the Act for exercising, if he so chooses his right to purchase the land provided he satisfies the other conditions mentioned in the section.

The Legislature did not want the position to be kept nebulous

and doubtful in respect of such a person who was not in possession as a tenant on the date of the Act. While coming to. a tenant who satisfies the requirements of cl. (iii) of s. 18(1), the

Legislature has taken care to see that those types of tenants are made to take a decision to purcha51; the land within the shortest possible time so that other peoples' rights may not be jeopardized.

Nor is there any warrant for the contention of Mr. Iyenger that the person who claims the right under cl. (i) should have been a tenant on April 15, 1953. So far as we could see, there is no prohibition under the Act placing any restriction against the right of the landowner creating new tenancies after the date of the Act. In fact the second proviso to s.9-A clearly indicates to the contrary. It deals with the cootingency of tenancy coming into force after the commencement of the Act.

Section 18(1) (i) gives a right to a tenant to purchase the land; and that right has to be examined when an application under s. 18 is made and cannot be denied on the ground that he was not a tenant for more. than six years on April 15, 1953. There is no limitation placed under cl.(i) of s.18(1J that the tenant who exercises his right should be a tenant on the date of the Act or that he should have completed the period of six years on April 15, 1953 and there is no warrant for reading in s.18(1)(i) clauses which it does not contain. It is enough if the continuous period of six years has.-been completed on the date when the tenant files the application for purchase of the land.

We were referred to three decisions : Ga11pat v. Jagmal('); Amar Singh v. State of Punjab('). and Mam Raj v. State of Punjab ( •). In the first decision the question was whether a transfer by a landowner in excess of the reserved area has to be ignored when the rights of a tenant under s.18 are being considered. In the second and third decisions the question was whether an order fsir purchase passed in favour of a tenant under s. 18 can be ignored by the Collector when exercising his functions under s. 10-A of the Act. In none of the decisions the points now decided by us came up for consideration directly and therefore it is not necessary to deal with those decisions in detail.

To conclude we are of opinion that in order to claim a right of purchase as against the landowner under s.18(1)(i) of the Act, the minimum period of six years should have been completed at the time when the application for purchase by the tenant is made, and it is not necessary that he should have been a tenant of the land on April 15, 1953. Provided the other conditions are satisfied, such a tenant will be entitled to purchase the land.

In the result the writ petitions and appeals are dismissed with costs-such costs to be one hearing fee.

R.K.P .S.

Petitions a11d appeals dismissed. --(I) (1963) Punj. L.R. 652.

(2) I.L.R. [1957] 2 Punj. & Har. 120,

(3) l.L.R. [1969]'2 Punj. & Har. 680.

SAHIB RAM ETC

February 24, 1970

M. SHELAT

Punjab Security of Land Tenures Act

Section 18(1)

s. 18(1)

Tenures Act X of 1953

s. 18

April 15, 1953

Section 18(1)

s. 18

s. 18(1)

s. 18(1)

When the object of the Act

section 18

Art. 32

Constitution of India

S. K. Mehta

K. L. Mehta

Sona Bhatiani

E. C. Aganval

Vaidialingam

Art. 32

s. 18

15, 1953

January 10, 1961

s. 18

s. 18

March 29, 1961

Ferozepore

June 9, 1961

December 14, 1962

Financial Commissioner, Revenue, Punjab

April 24, 1963

s. 18

Fazilka

High Court of Punjab

Punjab High Court

October

I, 1963

s. 18

s. 18(1)

Punjab and Haryana High Court

Febmary 29, 1968

Art. 32

s. 18

s. 18

B. R. L. Iyengar

s. 18

s. 9

s. 18

s. 10

s. 18

s. 18

s. 18

S. V. Gupte

s. 18(1)(i)

Iyengar

Gupte

s. 18

Section 7

Section 15

s. 7

s. 7

s. 18

Amendment Act XI of 1955

Section 2

Section 7

Section 10

s. 18

Section 16

Section 15

Act was omitted by the Punjab Act

section 6

Section 2

s. 2

s. 2(4)

Section 2(5-a)

Section 5

Punjab

Section 5

Section 5

s. 6

August 15, 1947

Section 8

Section 9

s. 9

s. 9

s. 10

Section 10

s. 10

Section 10

s. 9

s. 9

s. 9

s. 10

Section 12

Section 14

February 1, 1955

Section 17

SUPREME COURT llEPOllTS [1970) 3 S.C.ll

Section 18(2)

s. 18

s. 18

August 14, 1947

s. 18

s. 18

s. 18

s. 18(l)(i)

s. 18

s. 18(1)

Iyenger

Section 18(1)

s. 18

s. 18

s. 10


MADHARAO RAJESHlVAR DESHPANDE

SHANKER SlNGH &: OllS.

February 2-4, 1970

[J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.] Bombay Tenancy and. Agricultural Land (Vidharbha and Kutch Area) Act 99 of 1958 as amended by Act 2 of 1962, ss. 41, 42, 43 and 46- Scooe of.

The appellant was the owner of certain land and the first respondent was the protected lessee. In 1963, the appellant filed " petition for possession of the land on, the 2:round that the first respondent failed to exercise his right of purchase under s. 41(1) of the Bombay Tenancy and Agricultural Land (Vidharbha and Kutch Area) Act, 1958. The authorities under the Act heJd that the tenant had become a statutory own.er from April I, 1961, under s. 46 (I) and dismissed the petition. In the High Court the appellant raised for the first time, the contention that under s. 42(c) of the Act the appellant should have been left an area not Jess than one family holding (that is about 26 acres), thats. 46(1) was applicable only when the condition in s. 42(c) was satisfied, that under s. 43(14A), which was introduced into the Act by Act 2 of 1962. the first respondent should take steps to exercise his right oi purchase, and since the first 1 respondent did not do so. he must be deemed to have surrenderf.d the land to the appellant under s. 43(14A). The High Court did not accept the contention.

In appeal to this Court,

HELD : (!) The appellant was not entitled to raise any contention based on s. 42(c) as no foundation was laid for doing so in the plead ings or at any prior state till the matter reached the High Court. (814

A-B]

(2) The ope.ration of s. 46(1) was not affected by the subsequent insertion of sub--s. 14A in s. 43, as it did not have any retrospective operation.

Therefore, the first respondent had become a statutory o\vner of the land in his tenancy under s. 46(1), on April I, 1961, even though he di<l not take any steps to purchase that land from the appellant. [814

B-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2393 of 1966.

Appeal by special leave from the judgment and order dated March 1, 1966 of the Bombay High Court, Nagpur Bench in Special Civil Application No. 190 of 1965.

G. L. Sanghi and A. G. Ratnaparkhi, for the appellant.

D. V. Patel, for the respondent.

The Judgment of the Court was delivered by

Grover, J. This is an appeal by special leave from a judgment of the Bombay High Court dismissing a petition filed by the appellant under Art. 227 of the Constitution.

LIOS:ipCl(NP)70-7

The dispute relates to survey No. 284 having an area of 11 acres and 6 gurithas in Mouza Paras, Taluk Balapur, District Akola.

The appellant is the owner of this field while respondent no. 1 is the protected lessee. The case is governed by the Bombay Tenancy and Agricultural Land Act (Vidhatbha & Kutch area) Act 99 of 1958 which came into force on December 30, 1958, hereinafter called "the Act". , In August 1963 the appellant filed an application before the Tahsildar under ss. 43(14A) and 36(2) of the Act for possession of the aforesaid field on the ground that respondent No. 1 had failed to exercise his right of purchase in respect of that field under the provisions of the Act. He must, therefore, be deemed to have surrendered the same to the appellant. The Tahsildar sustained the defence of respondent No. l that he had become an owner of the said field on April 1, 1961 under s. 46 of the Act and dismissed. the application. The order of the Tahsildar was confirmed by the Deputy Collector (Tenancy Appeals) and the Maharashtra Revenue Tribunal to whom the matter was taken in appeal and revision respectively. It may be mentioned that originally the appellant had filed applications against three of his tenants including respondent No. 1 and the tribunal dismissed by one order all the three revision petition preferred against the orders made in the three cases. The appellant, however, filed a petition under Art. 227 of the Constitution challenging the order made in the case of respondent No. l alone.

The Act as originally enacted was amended by Act 2 of 1962 which came into force on March 1, 1962. Chapter ill related to termination of tenancies by landlords and special rights of tenants.

Sections 38, 39 and 39A gave rights to different categories of landlords to terminate the tenancies of their tenants for borla fide personal cultivation.

A ceiling was fixed with regard to the area of which possession could be claimed as also the minimum area of land which must be left with the tenant. The tenants were given the right to purchase land in the second part of Chapter ill. Section 41 ( l) provided that subject to the provisions of ss. 42 to 44 a tenant other than an occupancy tenant would be entitled to purchase from the landlord the land held by him as a tenant and cultivated by him personally. In case of a landlord who was under some kind of disability, namely, if the landlord was a minor or a widow or a serving member of the armed forces or a person subject to physical or mental disability the right to purchase land of such landlord accrued to the tenant after the expiry of two years from a date prescribed in the case of each category of such landlord.

Section 42 as it stood on April 1, 1961 was as follows:

"Extent of land which tenant may purchase under section 41.-The right of a tenant under s. 41 to purchase

, A

from his landlord the land held by him as a tenant shall be subject to the fo1Jowing conditions, namely :-

(a) if the tenant does not hold and cultivate personally any land, as a tenure-holder, the purchase of the land by him shall be liniited to the extent of three family holdings;

(b) if the tenant holds and cultivates personally any land as a tenure-holder the 'purchase of the land by him shall be limited to such area as will be sufficient to make up the area of the land helg by him as a tenure-holder to the extent of thfee family holdings;

(c) the extent of the land remaining with the landlord after the purchase of the land by the tenant whether to_ cultivate personally or otherwise shall not be less than one family holding".

Clause (c) was deleted by Act 2 of 1962 which came into force on _March l, 1962.

Section 43 prescribes the procedure which was to be followed by a tenant in the matter of purchase of the holding. Section 46(1) made a categorical provision that notwithstanding anything in Chapter ill or any law for the time being in force or any custom, usage, decree, contract or grant to the contrary the ownership of all lands held by tenants which they were entitled to purchase from their landlord under any of the provisions of Chapter ill was to stand transferred to and vest in such tenants with effect from April 1, 1961 and from such date the tenants were to be deemed to be the full owners of the lands, The first proviso contained provisions relating to the tenants who were under a disability and the second proviso laid down that where any proceeding under ss. 19, 20, 21, 36 or 38 was pending on the date specified in sub-s. (1) in respect of any land the transfer of ownership of such land was to take effect on the date on which the proceeding was finally decided and if the tenant retained possession of the land in accordance with the decision in such proceedings ..

Under sub-s. (2) the tenant'continued to be liable to pay to the landlord the rent of_ the land the ownership of which stood transferred to him until the amount of the purchase price payable by him to the landlord had been determined under s. 48.

Cein amendmets which wei:: made by Act 2 of 1962 may be noticed. Sub-section l 4A was mserted in s. 43 which was in these terms :

"H a tenant fails to exercise his right of purchase H under section 41in respect of any land or the purchase of any land becomes ineffective, tile land shall be deemed to have been surrendered to tile landlord, and thereupon the provisions of sub-sections (1) and (2) of section 21

and Chapter v11 shall apply to such land as if the land was surrendered by the tenant under section 20".

Section 49 A provided for transfer of ownership of lands to the tenants with effect from first day of April 1963 where the land had already not been transferred by operation of s. 46 or where the tenant had not purchased it under s. 41 or s. 50.

Before the Maharashtra Revenue Tribunal the position taken up on behalf of the appellant was that the tenant had. failed to exercise his riht of purchase in respect of the field in his possession and therefore he should be deemed to have surrendered the same to the appellant by virtue.of the provisions of s. 43(14A) of the Act.

The tribunal went into the scheme of the Act and also considered the Ceiling on Holdings Act which was in force in the Vidarbha Region.

After referring to the relevant provisions of the Act it was observed that the final stage for transfer of ownership of land to the tenant was provided by ss. 46 and 49A. The effect' of the Tenancy Act and the Ceiling on the Holdings Act, according to the Tribunal, was that no person was entitled to hold an area in excess of three family holdings. Under the Act the maximum area which he could have resumed would have been three family holdings and that also if he could prove that he bona fide required it for personal cultivation and was mainly dependent on the income of that land for his maintenance. The tenant was give.n the right to purchase the land in his ienancy from the landlord in accordance withs. 43.

If he did not take steps to acquire the same he still became a statutory owner of that land by virtue of s. 46 with effect from April 1,

1961. Therefore even if the tenant did not apply for purchase of laud held by him he became an owner with effect from April 1, 1961 subject to any other conditions as were laid down in the provisions of the Act. This vesting of ownership in the tenant was not affected by subsequent enactment of sub-s. (14-A) by Act 2 of 1962 which did not have retrospective operanon.

Thus, according to the tribunal, even if respondent No. 1 did not apply under the relevant provisions of the Act for purchasing the land comprising his tenancy he became an owner thereof by virtue of the provisions of s. 46(1) and no tenancy rights were left which could be deemed to have been surrendered under s. 14A which came into existence after April I, 1961. Although the provisions of s. 42(c), as they stood before the amendment effected by Act 2 of 1962, were not pressed at any prior stage a contention was raised before the High Court that in accordance therewith the appellant should have been left an area not less than one family holding on independent calculation with respect to the land held by each. tenant.

The J:Iigh Court repelled this contention by saying that 1t was not possible to accept such a construction of s. 42(c).

As there was no proceeding pending for termination of the tenancy of respondent No. 1 the conclusion of the tribunal that respondent No. 1 had become a statutory owner on Aprill, 1961 was upheld.

Before us an attempt was made on behalf of the appellant to reiterate the contention based on the provisions of s. 42(c) as it existed before the amendment made by Act 2 of 1962. It was urged that one of the most important conditions of the right to purchase was that the extent of the land remaining with the landlord after the purchase by the tenant (whether to cultivate personally or otherwise) shall not be less than one family holding. On December 30,

1958 the appellant had no land whatever with him in his possession. He was, therefore, entitled to retain an area to the extent of one family holding which came to 26 acres. By virtue of the provisions of s. 42(c) respondent No. 1 was not entitled to purchase the entire land comprising his tenancy as under s. 46 ( 1) the oWllership of land stood transferred to the tenant only if he was entitled to purchase from the landlord such land. As this comfjtion was not fulfilled in the present case owing to the provisions of s. 42(c) it followed that on April 1, 1961 the ownership of the. land in question was not transferred to respondent No. 1 under s. 46(1).

This situation continued upto March 1, 1962 when the amending Act came iinto force. Sub-section (14-A) of s. 43 was one of the new provisions inserted by the Amending Act. Respondenr No, 1, could, therefore, exercise his right of purchase only under s. 41 read with s. 43(14-A).

As he failed to exercise his right under those provisions the entire land in his tenancy must be deemed to have been surrendered to the landlord, namely, the appellant before April l, 1963 which was the relevant date for the purpose of the operation ef s. 49-A.

We are 1mable to accept any of the contentions raised on behalf of the appellant. So far as the effect of s. 42(c), as it stood before its deletion by the amending Act is concerned, it was neither referred to nor relied upon before any of the revenue authorities including the Maharashtra Revenue Tribunal. The application which was filed by the appellant was not founded on any facts or pleas relevant to s. 42( c). The contention as raised leads to unusual and strange results.

If the appellant was entitled to an area of 26 acres it is difficult to see how he could choose only respondent No. 1 and leave out the other tenants for the purpose of retaining land not less than one family holding. It is significant that the appejlant had filed apJ>lications on similar line5 against two other tenants also. After the decision of the tribunl!-1 had been given he did µot pursue the matter further which means that he abandoned his claim with regard to the lands in their tenancies. Respondent No. 1 has a holding with an area of little over 11 acres. It is incomprehensible how the appellant could seek to satis_fy the requirements of s.

42(c) by demanding the entire area from respondent No. 1 alone.

We, however, do not wish to express any final opinion on the scope and ambit of s. 42(c) because we are satisfied that the appl!'.llant was not entitled to raise any ontention based on the aforesaid provision as no foundation was laid for doing so in the pleadings or at any prior stage except before the High Court. We concur in the view of the tribunal that respondent No. 1 became a statutory owner of the land in his tenancy by virtue of s. 46(1) of the Act with effect from April 1, 1961 even though he did not take steps to purchase that land from the appellant under s. 43. The operation of s. 46(1) could not be affected by the subsequent insertion of sub-s. (14-A) in s. 43 which did not have retrospective operation.

The appeal therefore fails and it is dismissed. But in the circumstances there will be no order as to costs.

V.P.S.

Appeal dismissed.

MADHARAO RAJESHlVAR DESHPANDE

SHANKER SlNGH &: OllS

February 2-4, 1970

C. SHAH

K. S. HEGDE

A. N. GROVER, JJ.

ss. 41, 42, 43 and 46

s. 41(1)

s. 46

s. 42(c)

s. 42(c)

s. 43(14A)

s. 43(14A)

s. 42(c)

s. 46(1)

s. 14A

s. 43

s. 46(1)

Bombay High Court, Nagpur Bench

G. L. Sanghi

A. G. Ratnaparkhi

D. V. Patel

Grover

Art. 227

December 30, 1958

ss. 43(14A) and 36(2)

April 1, 1961

s. 46

Maharashtra Revenue Tribunal

Art. 227

March 1, 1962

Sections 38, 39 and 39A

Section 41

ss. 42 to 44

Section 42

section 41

s. 41

Act 2 of 1962

March l, 1962

Section 43

Section 46(1)

ss. 19, 20, 21, 36

s. 48

s. 43

section 41

section 21

section 20

Section 49

s. 46

s. 41

s. 50

s. 43(14A)

Vidarbha

ss. 46 and 49A

s. 46

April 1,

1961

s. 46(1)

s. 14A

April I, 1961

s. 42(c)

s. 42(c)

Aprill, 1961

s. 42(c)

December 30,

1958

s. 42(c)

s. 46

s. 42(c)

s. 46(1)

1, 1962

s. 43

s. 41

s. 43(14-A)

s. 49

s. 42(c)

s. 42( c)

s.

42(c)

s. 42(c)

s. 46(1)

s. 43

s. 46(1)

s. 43


RAMJI DAS & ORS.

TRILOK CHAND ETC.

February 25, 1970

[J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.J

U.P. (Temporary) Control of Rent and Eviction A.cl (U.P. of 1947), s. 3-Permission granted by the Rent Control and Eviction Ofjicer- Validity if can be challenged in suit for eviction.

The appellant-landlord applied to the Rent Control & Eviction Officer under s. 3 of the U.P. (Temporary) Control of Rent & Eviction Act, 1947 for permission to file a suit for a decree in ejectment against the respon dent-tenant. The officer granted the permission, holding that the need of the appellant to occupy the premises was bona fide and genuine. This order was confirmed in a revision application by the Additional Commissioner. The appellant then terminated the tenancy by notice and filed suits in the Civil Court for ejectment and arrears of rent The trial court decreed the suits, which were confirmed by the appellate court. But in second appeal, the High Court observed that it was incumbent on the Rent Control and Eviction Officer to consider the needs of the tenant, and since he refused to consider the tenant'!I needs the permission was invalid, and the appellant's suits were liable to be diomissed. In appeal, this Court,

HELD : The decision of the Rent Control and Eviction Officer was not in the suits filed by the appellant open to objection.

The proceeding under s. 3(2) before the District Magistrate or before the Rent Control & Eviction Officer, who exercioes his powers as delegated under the Act, and before the Commissioner under s. 3(3) of the U.P.

(Temporary) Control of Rent and Eviction Act are quasi-judicial in character. By sub-section ( 4) of s. 3 of the Act the decision of the Commissioner under suf>.s. (3) of s. 3, subject to any order passed by the State Government under s. 7-F of the Act, is declared final.

The respondent did not prefer any petition before the State Government under s. 7-F of the Act and on that account the order passed by the Additional Commissioner, exercising powers of the Commissioner under s. 3 ( 3), became final.

Finality df the order declared by s. 3 ( 4) and s. 16 of the Act does not exclude the jurisdiction under Art. 226 of the Constitution to issue an appropriate writ quashing the order. But subject to interference by the High Court, the decision must be deemed final and is not liable to be cballen.ged in any collateral proceeding. [817 B-D]

Even granting that the Additional Commissioner reached a wrong conclusion, the decisionwas not without jurisdiction and the only avenue for correction is the one provided by the Act, i.e. by approaching the State Goverment under s. 7-F. [817 HJ

Asa Singh v. B. D. Sanwa/ & Ors. AJ.R. 1969 All. 474, held inapplicable.

CIVIL APPELLATE f!JRI$1)!CT!ON : Civil Appeals Nos. 1463 and 1464 of 1969

SUP&EME COURT REPORTS

[ 1970] 3 S.C.R.

Appeals by special leave from .the judgment and order dated January 31, 1969 of the Allahabad High Court in Second Appeals Nos. 1197 and 1198 of 1967.

M. C. Setalvad, P. Parameswara Rao, K. C. Dua and S. M.

Grover, for the appellants (in 'eoth the appeals).

J. P. Goyal and M. V. Goswami, for the respondents (in both the appeals).

The Judgment of the Court was delivered by

Shah, J.

A common question arises in these two appeals, and we will therefore dispose it of by this common judgment.

The appellant is the owner of a house at Shamli in District Muzaffarnagar in U.P., and the respondent is the tenant of that house.

The appellant applied to the Re.nt Control and Eviction Officer under s. 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, for permission to file a suit for a decree in ejectment against the respondent. By order dated June 4, 1965, that Olllcer granted the permission, holding that the need of the appellant "to occupy the premises was bona fide and genuine". This order was confirmed in a revision application by the Additional Commissioner. The appellant then terminated the tenancy of the respondent in respect of the premises by a notice as required by

law and filed two suits in the Court of the Munsif, Kairana, for ejectment and for payment of arrears of rent. The Trial Court a decreed the suits holding that the permission granted by the Rent Control and Eviction Officer was with "jurisdiction and was not mala fide".

The decrees were confirmed in appeal to the District Court at Muzaffarnagar, But second appeals filed by the respondent before the High Court of Allahabad were allowed and the appellant's suits were dismissed. , The High Court observed that F the only question argued before the Court related to the invalidity of the permission granted by the Rent Control and Eviction Officer.

The High Court further observed that since a Full Bench judgment of the Court had held in Asa Singh v. B. D. Sanwal and Others(') that "while granting permission under s. 3 of the U.P. (Temporary) Control of Rent and Eviction Act the District Magistrate is bound to consider also the need of the tenant for the accommodation, if such a case is set up by him", and it was incumbent on the Rent Control and Eviction Officer to consider "the needs of the tenant" ·. before ma.king the order sanctioning institution of a suit in ejectment, and the Rent Control and Eviction Officer having "refused to "; onsider the needs of the tenant the permission granted by the Rent Control and Eviction Officer cannot l:?e said to be valid permission" ..

Accordingly the High Court allowed the appeals and dismissed

(I) A.I.R. 1969 All. 474.

RAMJI DAS V. TRILOK CHAND (Shah, J.)

SIT

the appellant's suits. With special leave, these two appeals are pre-- ferred;

- The proceeding before the District Magistrate under s. 3 ( 2) and before the Commissioner under s. 3(3) of the U.P. (Temporary)' Control of Rent and Eviction Act are quasi-judicial in character.

B Bys. 3(4) of the Act the decision of the Commissioner under sub-s.

(3) of s. 3; subject to any order passed by the State Government under s. 7-F of the Act, is declared final. The respondent did not prefer any petition before the State Government under s. 7-F of the Act' and on that account the order passed by the Additional Commissioner, exercising powers of the Commissioner under s. c 3(3), became final. Section 16 of the Act provides that no order made under the Act by the State< Government or the District Magis-· trate shall be called in question in any Court. It is true that the finality of the order d(!clared by s. 3 ( 4) and s. 16 will not exclude the jurisdiction of the High Court in exercise of the jurisdiction under Art. 226 of the Constitution to issue an appropriate writ quashing the order. But subject to inteference by the High Court, the D decision must be deemed final and is not liable to be challenged in any collateral proceeding.

In our view, the High Court was in error in holding that the decision of the Rent Control and Eviction Officer was, in the suits filed by the appellant, open to the objection that the Officer did not consider the "needs of the tenant". The Rent Control and Eviction

Officr had jurisdiction to hear and decide the matter. Even if we assume that he committed an error in the exercise of his jurisdiction, the error could be corrected only in a proceeding under s. 7-F of the Act by approaching the State Government and by way of a writ petition to the High Court, but the order made by the Rent Control and Eviction Officer and confirmed by the Additional Commissioner could not be challenged in the suit.

Mr. Goyal appearing on behalf of the respondent contended that the validity of an order which has been made by the Rent Control and Eviction Officer which is contrary to the rules of natural justice, may be challenged in the suit. Reliance in that behalf was. placed upon Shri Bhagwan and Anr. v. Ram Chand & Anr.(1).

But in reaching an erroneous conclusion the Rent Control and Eviction Officer does not act in a manner contrary to the rules of natural justice. The Rem:t Control and Eviction Officer had jurisdiction to decide the case.

Granting that he reached a wrong conclusion, the decision was not without jurisdiction and the only avenue for cotrection is the one provided by the Act, i.e., by approaching the State Government under s. 7-F. If the State,

en [t96SJ 3 s.c.R: 21s

SUPREME COURT REPORTS [1970] 3 S.CJl.

Government was not moved, the order became final and was not A liable to be challenged in the suits filed by the appellant.

The decision of the AlJahabad High Court in Asa Singh's case(') has no application, for it was reached in a case in which a special appeal was filed in a proceeding arising out of a writ petition. It was apparently not a case in which the validity of the per- B mission given by the authority exercising power under s. 3 of the Act was sought to be challenged in a suit instituted by the landlord.

We need express no opinion on the question whether the High Court was right in talcing the view it has done in Asa Singh's case(').

The appeals are therefore allowed and the decree passed by C the High Court is set aside and the decree of the District Court is confirmed. There will be no order as to costs in this Court.

Y.P.

Appeals allowed,

(I) A.J.R. 1969 All. 474.

RAMJI DAS & ORS

TRILOK CHAND ETC

February 25, 1970

C. SHAH

K. S. HEGDE

A. N. GROVER, JJ

s. 3

s. 3

Eviction Act, 1947

s. 3(2)

s. 3(3)

Control of Rent and Eviction Act

s. 3

s. 3

s. 7

s. 7

s. 3

s. 3

s. 16

Art. 226

s. 7

M. C. Setalvad

P. Parameswara Rao

K. C. Dua

S. M.

Grover

J. P. Goyal

M. V. Goswami

Shah

Shamli

Muzaffarnagar

U.P.

s. 3

Control of Rent and Eviction Act, 1947

District Court at Muzaffarnagar

High Court of Allahabad

s. 3

Control of Rent and Eviction Act

RAMJI DAS V. TRILOK CHAND

s. 3

s. 3(3)

Control of Rent and Eviction Act

s. 3

s. 7

s. 7

Section 16

s. 3

s. 16

Art. 226

s. 7

Goyal

s. 7

AlJahabad High Court

Asa Singh

s. 3


COMMISSIONER OF WEALTH TAX, GUJARAT AT

AHMED ABAD

MRS. ARUNDBATI BALKRISHNA February 25, 1970.

[J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.]

Wealth Tax Act (27 of 1957), ss. 1(e) (iv) and 5(1)(vii)-Receipt of share from trust funds-When 'annuity'-Jewellery intended for personal use-Whether exempt.

The assessee was an individual.

She was entitled for her life, to an aUquot share of the income arising from the funds settled on trust by three trust deeds and received payments of such share.

She also possessed jewellery, intended for her personal use, of the value of Rs. 80,000.

On the questions : ( 1) whether the payments to the assessee were annuities falling within the scope of s. 2(e)(iv) of the Wealth Tax Act, 1957, whose value could not be included in the computation of her net wealth; and (2) whether the value of the jewels was exempt under s. 5(1)(viii).

HELD: (1) Under the trust deeds, the assessee was not entitled to any fixed sum of money. Therefore, the payments to the assessee under the trust deeds could not be considered as annuities and hence, she was not entitled to the benefit of s. 2(e)(iv). [824 B-F]

. Ahmed G H. Arifj v. Commissioner of Wealth Tax, Calcutta, [1970] 2 S.C.R. 19 followed Commissioner of Wealth Tax v. Mr3, Dorothy Martin, (1968) 60 I.T.R. 586, approved,

(2) Under. s. 5 there are four provision• dealing with jewellery, namely, (a) jewellery intended for the personal use of the assessee- •· 5(1) (viii}, (b) jewellery which forms an heir loom-s. 5(1) (xiii),

(c) jewellery in the possession of any ruler-s. 5(1) (xiv); and (d) jewellery in general-s. 5(1)(xv), Under s. 5(1)(xv), as it stood in 1958-59, every assessee was entitled to deduct a sum of Rs. 25,000 from out di the value of the jewellery whether the same was intended for personal use or not; but under s. 5 (I) (viii) the value of all the jewellery intended for the personal use. of the assessee stands excluded in the computation of the net wealth Of an assessee.

Therefore, the jewellery in the present case is exempt under s. S(l)(viii). [825 D, E-G]

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1991 1992, 2010 and 2011 of 1968.

Appeals from the judgment and order dated October 9, 1967 of the Gujarat High Court in Wealth Tax Reference No. 3 of 1964.

B. Sen, S. K. Aiyar and B. D. Sharma, for the appellant (in C. A. Nos. 1991 and 1992 of 1968) and the respondent (in C. As. Nos. 2010 and 2011 of 1968).

N. A. Palkhivala and I. N. Shroff, for the respondent (in A C. As. Nos. 1991 and 1992 of 1968) and the appellant (in C.As. Nos. 2010 and 2011 of 1968).

The Judgment of the Court was delivered by

Hegde, J.

These appeals by certificate under s. 29 of the Wealth Tax Act, 1957 (to be hereinafter referred to as the Act) arise from a reference under s. 27(1) of the Act to the High Court of Gujarat. Therein four questions were referred to the High Court for its opinion. These four questions really gave rise to two questions of law viz. ( 1) whether under the three trust deeds referred to therein the assessee got annuities falling within .the scope of s. 2( e)

(iv) ? and (2) whether the value of the jewels owned by the assessee was exempt under s. 5(l)(viii) in computing the net wealth of the assessee ?

The asseiee is an individual and the assessment years with which we are concerned in these appeals are 1957-58 and 1958- 59, the corresponding valuation dates being December 31, 1956 and December 31, 1957.

By a deed of settlement dated September 7, 1945 the father of the assessee settled certain shares of the Indian Companies of the estimated va.lue of R..s. 5,50,325/- upon trust for the benefit of his two sons and his daughter, the assessee. By another deed of settlement dated October 12, 1945 he settled certain other shares upon trust for the benefit of the assessee and her two brothers.

All the terms of the two trust deeds relevant for our present purpose are identical.

By a deed of settlement dated September 3 0, 1945, the mother-in-law of the assessee settled upon t'rust a sum of Rs. 3,88,931/- and shares of some Indian Companies of the aggregate market value of Rs. 11,81,670/-.

Theassessee is one of the beneficiaries named in that deed. The assessee also possessed jewellery of the value of Rs. 80,000/-

As regards the payments to be ma.de to the assessee under the afore-mentioned three trust deeds, the contention of the assessee is that under each of those deeds, she has o'nly a right to an 'annuity' and the terms and conditions relating thereto preclude the commutation of any portion thereof into a lumpsum grant and hence in viow of s. 2 ( e)(iv), the value of those annuities cannot be included in the computation of her net wealth.

As regards the jewellery her case is that they are articles of her personal use and therefore their value cannot be taken into consideration in ascertaining her net wealth.

She contends that the value of those jewellery is exempt under s. 5(1)(viii). The Wealth Tax Officer rejected both those contentions and assessed her after including in her net wealth the value of the benefits receivable by her under

COMM!l. WEALTH TAX v. ARUNDHATI (Hegde, ].) 821

the trust deeds in question as well as the value of the jewellery minus Rs. 25,000/-, deduction !\iven under s. S(l){xv) as it stood at the relevant tinle.

Against that order the assessee went up in appeal t11 the Assistant Appellate Commissioner. That officer agreed with the conclusions reached by the Wealth Tax Officer and he accordingly dismissed the appeal of the assessee. Thereafter th• assessee appealed to the Tribunal. The. Tribunal held that the payments to be made to the assessee under the trust deed executed by her mother-in-law is an 'annuity' entitled to exemption under s. 2( e) (iv).

As regards the payments to be made to the assessee under her father's settlement deeds, it opined that as the as•essee was entitled to withdraw from the trust fund at her own discretion after she attained majority and after she gave birth to one child,. one half of the corpus, to that extent commutation was possible. Therefore to the extent of one half of the value of the annual payments to be made to her under those deeds, the assessee was not entitled to exemption under s. 2(e)(iv) but she was entitled to exemption as regards the other half.

The Tribunal rejected the assessee's claim for exemption under s. S(l)(viii) i.e. in respect of the value of the jewellery.

One a reference under s. 27(1), the High Court of Gujarat held that the payments to be made to the assessee under the three settlement deeds do not come within s. 2(e)(iv) but the value of the jewellery is exempt under s. S(l)(viii). Both the assessee as well as the Revenue have appealed against that decision.

We shall first take up the contention of the assessee that the payments to be made to her under the trust deeds are annuities which by the terms and conditions relating thereto preclude the commutation of any portion thereof into a lumpsum grant and hence are within the scope of s. 2(e)(iv). If those payments fall within the scope of that provision, they cannot be considered as the assets of the assessee and therefore their value cannot be reckoned in determining her net wealth under s. 2(m). Under s. 3, the charging section, only the net wealth of an assessee can be brought to tax. Hence we have to examine the terms of the settlement deeds to find out whether the benefits conferred on the assessee by any or all of those deeds can be considered as annuity.

As stated earlier the two settlement deeds executed by the father of the assessee are expressed more or less in identical language. It was conceded at the bar that whatever construction we may place on one, would be equally applicable to the other. Therefore we shall take up.the deed executed on September 7. 1945 by the father of the assessee. Under cl. 3 of that deed it is provided that the trustees, after deducting from tht it1c9me of the

shares in question, all costs and expenses incurred in or about the administration of the trust, should at the end of every calendar year pay the whole residue to the assessee and her two bothers in equal shares. But after the death of the assessee her helfs are not entitled to any share in that income.

Therein provision is made by the settlor for disposition of the corpus of the trust. But it is provided that notwithstanding anything contained to the contrary in the deed of Trust after assessee attained majority and after the birth of her first child when and so often as might be required by the assessee, the trustees are required to pay a portion of the corpus of the trust fund not exceeding in the whole one-half thereof to the assessee and this payment of the corpus was to be absolutely freed and discharged from the trust and provisions of the trust deed. The other provisions of the trust deed are not relevant for our present purpose.

Under the trust deed executed by the assessee's mother-in-law on December 30, 1945, the husband of the assessee and her two brothers-in-law were constituted as the Trustees.

Under cl. (a) of that deed, the trusts were required to pay the income of the trust fund after deducting the expenses to the assessee during her life-time. The rest of the clauses in that trust deed relate to disposition of the corpus to different beneficiaries after the life time of the assessee.

It is clear from the terms of the three trust deeds referred to earlier that the assessee had a life interest in each of those funds.

Further under the trust deeds executed by her father, she was also entitled to a portion of the corpus under certain circumstances.

The question for decision is whether the benefits obtained by the assessee under those deeds can be held to come within s. 2(e)(iv).

The expression "annuity" is not defined in the Act. In Halsbury's Laws of England, 3rd Edn. Vol. 32 at p. 534 (paragraph 899), the meaning of the. word "annuity" is explained thus :

"An annuity is a certain sum of money payable yearly either as a personal' obligation of the grantor or out of property not consisting exclusively of land." In Jarman on Wills at p. 1113 "annuity" is defined thus :

"An annuity is a right to receive de anno in annum a certain sum; that may be given for life, or for a series of years; it may be given during any particular period, or in perpetuity; and there is also this singularity about annuities, that, although payable out of the personal assets they are capable of being given for the purpose of devo'. lution, as real estate; they may be given to a man and his heirs, and may go to the heir as real estate."

' •

A In Williams on Executors and Administrators "annuity" is described as a yearly payment of a certain fixed sum of money granted for life or for years charging the person of the grantor only.

In Bignold v. Giles,('), Kindersley V. C. described "annuity" in these words :

"An annuity is a right to receive de anno in annum a certain sum; that may be given for life, or for a series of years; it may be given during any particular period, or in perpetuity; and there is also this singularity about annuities, that alth.ough payable out of the personal assets, they are ca12able of being given for the purpose of devolution, as real estate; they may be given to a man and his heirs, and may go to the heir as real estate-- so an annuity may be given to a man and the heirs of his body; that does not, it is true, constitute an estate tail, but that is by reason of the Statute De Donis, which contains only the word 'tenements', and an annuity, though a hereditament, is 11ot a tenement; and an annuity so given is a base fee."

Proceeding further the learned judge observed :-

"But this appears to me at least clear; that if the gift of what is called an annuity is so made, that, on the face of the will itself, the testator shows his intention to give a certain portion of the dividends of a fund, that is a very different thing; and most of the cases proceed on that footing.

The ground is, that the Court construes the intention of the testator to be, not merely to give an annuity, but to give an aliquot portion of the income arising from a certain capital fund." illustrations of annuity given in s. 173 of the Indian Succession Act also show that it is a right to receive a specified sum and not an aliquot share in the income arising from any fund or property. Ordinarily an annuity is a money payment of a fixed sum annually made and is a charge personally on the grantor.

On an analysis of the relevant clauses in three trust deeds, it is clear the assessee wrui given thereunder a share of the income arising from the funds settled on trust. Under those deeds she is .not entitled to any fixed sum ofmq.ney. Therefore it is not possible to hold that the payments that she is entitled to receive under those deeds are annuities. She has undoubtedly a life interest in those funds. In Ahmed G. H. Arif! v. Commissioner of Wealth Tax, Calcutta('), a Division Bench of the Calcutta High Court held that the right of a person to receive under a wakf an aliquot

(I) (1859) Ch. 4 Drew 345; (Revised Reports 113 p. 390).

(2) 59. I.T.R. 230.

:share of the net income of the wakf property is an 'asset' within .the meaning of the Wealth Tax Act, 1957 and the capital value of such a right is assessable to wealth tax.

Therein the Court repelled the contention that the right in question was an 'annuity'.

Tbis decision was approved by this CQurt in Ahmed G. H. A riff & Ors. v. Commr. of Wealth Tax, Calcutta(') and the same is bind ing on us.

A similar view was taken by another Bench of the Calcutta High Court in Commissioner of Wealth Tax v.

Mrs.

Dorothy Martin.(').

In that case under the will of the assessee's father the assessee was entitled to receive for her life the annual interest accruing upon her share in the residuary trust fund. The Wealth Tax Officer included the entire value of the said share in the assessable wealth of the assessee and subjected the same to tax under s. 16(3) of the Wealth Tax Act, 1957. That order was confirmed by the Assistant Appellate Commissioner but the Tri bunal in appeal excluded the same in the computation of the net wealth of the assessee. On a reference made to the High Court, it was held that on a construction of the various clauses in the will, the assessee was entitled to an aliquot share in the general income of the residuary trust fund and not a fixed sum payable periodically as "annuity" and, te.refore, the value of her share was an asset to be included in computing his net wealth. These decisions in our view correctly lay down the legal position. In this view it is not necessary to consider whether the income receivable by the assessee under those deeds either wholly or in part is capable of being commuted into a lumpsum grant.

For the reasons mentioned above we agree with the High Court that payments to be made to the assessee under the three trust deeds cannot be considered as annuities and hence she is not entitled to the benefit of s. 2(e)(iv).

This takes us to the question whether the High Court was F right in its view that the value of the assessee's jewellery should not be taken into consideration in determininz her net wealth.

The Tribunal has taken the view and the High Court has agreed with that view that the jewellery in question are articles intended for the personal use of the assessee. As mentioned earlier those jewels were valued at Rs. 80,000/ -; out of that amount Wealth tax Officer deducted Rs. 25,000/ • Ullder s. 5(l)(xv). The asses G see claims that in view of s. 5(1)(viii), the value of those jewels cannot be included in the computation of her net wealth. Section 5(1 )(viii) reads: · "5. (1) Wealth-tax shall not be payable by the assessee in respect of the following assets, and such assets shall not be included in the net wealth of the assesee- H

(1) [197.J] 2 S.C.R. 19.

(2) [1968] 69, J.T.R. 586.

(viii) furniture, household utensils, wearing apparel, provisions and other articles intended for the personal or household use of the assessee."

There is no dispute that the jewels in question were :intended for the personal use of the assessee; but it is said on behalf of the revenue that s. 5 (1 )(viii) does not apply to jewels as those articles are specifically provided for under s. 5(1)(xv). On the other hand it is urged on behalf of the assessee that s. 5(1)(xv) deals with jewellery which are not intended for personal use of the assessee such as heirloom or other jewellery which are retained as valuable assets or intended for the use of persons other than the assessee whereas s. 5(l)(viii) takes in only such jewellery as are intended for personal use of the assessee. We think the contention advanced on behalf of the assessee is the correct one. It is well known that the jewellery is widely used as articles of personal use by the ladies in this country specially by those belonging to the richer classes. That being so jewellery intended for the personal use of the assessee comes within the scope of s. 5(1 )(viii). But the jewellery mentioned in s. 5 ( 1 )(xv) need not be articles intended for personal use of the assessee. That provision deals with jewellerv

in general. The two provisions deal with different classes of jeweflery. That is made further clear by s. 5(1)(xiii) which says that Wealth Tax shall not be payable by assessee in respect of any drawings, paintings, photographs, prints and other heirloom not falling within cl. (xii) and not intended for sale but not including jewellery. If the contention that the jewellery is exclusively dealt with by s. 5 ( l)(xv) is correct then there was no occasion for the legislature to refer to jewellery in s. 5(1)(xiii). From an analysis of the various provisions in s. 5, it appears to us that therein there are four provisions dealing with jewellery viz. ( 1 ) jewellery intended for personal use of the assessee-s. 5(1 )(viii); (2) jewellery that is heirloom-s. 5(1)(xiii); (3) jewellery in the possession of any ruler-s. 5(1)(xiv) and (4) jewellery in general-s. 5(1)(xv).

Under s. 5(1)(xv) as it stood at the relevant time every assessee was entitled deduct a sum of Rs. 25 ,000/- from out of the value of the jewellery in her possession whether the same was intended for her personal use or not but under s. 5(1 )(yjjj) the value ot all the jewellery intended for the personal use of the assessee stands excluded in the computation of the net wealth of an assessee.

F?r th~ reasons. mentioned aove we think the High Court was nght m answenng the question relating to the value of the jewellery in favour of the assessee.

In the result these appeals fail and they are dismissed-no costs.

V.P.S.

Appeals dismissed.

LIOSup Cl/70-8

COMMISSIONER OF WEALTH TAX, GUJARAT AT AHMEDABAD

MRS. ARUNDBATI BALKRISHNA

February 25, 1970

C. SHAH

K. S. HEGDE

A. N. GROVER, JJ.

Wealth Tax Act

ss. 1(e)

s. 2(e)(iv)

Wealth Tax Act, 1957

s. 5(1)(viii)

s. 2(e)(iv)

[1970] 2 S.C.R. 19

s. 5

s. 5(1)

s. 5(1)

s. 5(1)(xv)

s. 5(1)(xv)

s. 5

B. Sen

S. K. Aiyar

B. D. Sharma

N. A. Palkhivala

I. N. Shroff

Hegde

s. 29

Wealth Tax Act, 1957

s. 27(1)

High Court of Gujarat

s. 2( e)

s. 5(l)(viii)

September 7, 1945

s. 5

October 12, 1945

September 3 0, 1945

s. 2

s. 5(1)(viii)

s. 2( e)

s. 2(e)(iv)

s. 27(1)

s. 2(e)(iv)

s. 2(e)(iv)

s. 2(m)

s. 3

September 7. 1945

cl. 3

December 30, 1945

s. 2(e)(iv)

England

Jarman

Kindersley

s. 173

Indian Succession Act

Calcutta High Court

Wealth Tax Act, 1957

s. 16(3)

Wealth Tax Act, 1957

s. 2(e)(iv)

s. 5(l)(xv)

s. 5(1)(viii)

Section 5(1 )(viii)

s. 5

s. 5(1)(xv)

s. 5(1)(xv)

s. 5(l)(viii)

s. 5(1 )(viii)

s. 5

s. 5(1)(xiii)

s. 5

s. 5(1)(xiii)

s. 5

s. 5(1 )(viii)

s. 5(1)(xiii)

s. 5(1)(xiv)

s. 5(1)(xv)

s. 5(1)(xv)

s. 5(1 )(yjjj)


GOPI KRISHNA KANORIA

DRAUPADI SAHAYA & ORS.

February 23, 1970

[J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.]

Bihar Tenancy Act, 1885, ss. 10, 155 and 178(1)(c)-Bihar Land Re- .forms Act, 1950--Mokurrari tenure held under registered document prior to Act of 1885---0n failure to observe conditions of tenure under the instrument notice given for cancellation of tenure and suit filed }or ejectnient,,.-Bihar Act of 1950 vesting tenure in State-Whether clai1n of proprietor to full compensation lay when hi~ notice of cancellation of tenure did not comply with terms of s. 155 of 1885 Act-Effect of ss. 10 and 178(1)(c).

The respondents held from the appellant certain land on Mokurrari tenure (permanent lease) created under a registered instrument dated •October 29, 1885. According to the said document the proprietor was <:ompetent to cancel the lease in the event of a default in the payment of

four successive kists by the tenure holder.

On the failure of the respondents to pay four successive kists the appellant on June 22, 1953 served on them a notice terminating and cancelling the Mokurrari tenure. During the pendency of the suit which was filed by the appellant in September Il953 it was declared that the Mokurrari tenure became vested in the State of Bihar with effect from July 26, 1954 under the provisions of the Bihar Land Reforms Act, 1950.

The plaint was amended and certain parties were added. The appellant claimed that he was entitled to the entire compensation which was tO be received from the State. The trial court held that on account of the failure df the appellant to give a notice to the respondents under s. 155 of the Bihar Tenancy Act, 1885 the respondeqts continued to be the tenure holders till the tenure vested in the State and therefore the appellant was not entitled to the full compensation.

The High Court upheld the order of the trial court. In appeal by certificate the appellant relied on s. 10 of the Act which it was claimed made -s. 155 inapplicable, in a case like the present, where the contract was made before the Act of 1885.

HELD : Section 10 simply provides tnat the holder of a permanent tenure shall not be ejected except on the ground that he has broken a condition on breach of which he is liable to be ejected under the terms of

the contract. Section 178 ( 1 )( c) says categorically that even though the contract has been made before the passing of the Act the landlord cannot eject a tenant otherwise' than in accordance with its provisions. Section 155 places a bar against a suit being entertained unless the requirements laid down therein have been satisfied. Therefore even though under s. IO G the appellant became entitled to eject the respondents on account of the breach of the condition relating to payment of rent the condition prece dent for a suit being entertained by a court was the notice served in the prescribed manner speci'fying the breach v.rhich was capable of remedy and in which the tenant should have been required to remedy the same or in any case to pay reasonable compensation for the breach.

If the tenant had failed to comply within a reasonable time with that request then alone the suit was maintainable.

Even if under the proviso to .s. 10 the H contract which was entered into before the commencement of the Act could contain conditions which \Vere inconsistent with the provisions of the Act that did not dispense with the requirements of s. 155 of the Act

A which had to be satisfied before any suit could be entertained.

As the notice which had been served by the appellant did not comply with the provisions of s. 155 the courts below rightly negatived his claim to the entire compensation nioru:y. (829 C-G]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 31 of 1967.

Appeal from the judgment and decree dated November 27, 1961 of the Patna High Court in Appeal from Original Decree No. 459 of 1956.

B. Sen and B. P. Maheshwari, for the appellant c Sarjoo Prasad, U. S. Prasad, Santok Singh and U. P. Singh,

for respondent No. 1.

U. P. Singh, for respondent No. 11.

The Judgment of the Court was delivered by

Grover, J.

This is an appeal by certificate against a judg ment of the Patna High Court in a suit instituted by the appellant for arrears of Mokurrari rent and cess with interest for four kists ·

and for khas possession by evicting the respondents. In the alternative the appellant asked for the payment of compensation money in respect of Mokurrari tenure which had vested in the State of Bihar under the Bihar Land Reforms Act 1950.

By means of a registered instrument dated October 29, 1885 the then proprietor of four villages had created a Mokurrari tenure (permanent lease) in favour of Frederick Richard Simson and George Venes.

The appellant had acquired the proprietory in terest in the villages by purchase and similarly the respondents had acquired the Mokurrari tenure. In the registered instrument there WaS a clause that in the {!Vent Of a default in payment of four SUCcessive kists the proprietor would be competent to cancel the Mokurrari patta.

The respondents did not pay four successive kists which had become due in June 1952, September 1952, December 1952 and March 1953. On June 22, 1953 the appellant served a notice terminating and cancelling the Mokurrari tenure in terms of .the c.lause relating to cancellation. During the pendency of the smt which was filed by the appellant in September 1953 it was declared that the Mokurrari tenure became vested in

te State of Bih:Uwith effect from July 26, 1954 under the provisions of the B1har Land Reforms Act 1950.

The plaint was amended and certain parties were added.

The controversy was mainly confined to the question of pavment of compensation.

According to the appellant he was entitled to the entire compensation which was to be received from

SUPREME COURT REPORTS

[1970) 3 S.C.R.

A the State.

The respondents maintained that no notice had been given under s. 155 of the Bihar Tenancy Act 1885, hereinafter called the "Act", and, therefore, the appellant could not sue for ejectment. Before the trial court it was admitted that the appellant did not serve a notice as contemplated under s. 155 of the Act. It was, however, contended that section was not applicable.

The trial court found that there had been a breach of the covenant B relating to payment of rent which had resulted in forfeiture but inasmuch as the appellant did not follow the procedure prescribed by s. 155 the respondents continued to be the tenure-holders till the tenure vested in the State. The appellant was, therefore, not entitled to the entire compensation money including tht of the tenure. The High Court upheld the decision of the trial court on C the point.

Section 10 of the Act is in the following terms :

"A holder of a permanent tenure shall not be ejected by his landlord except on the ground that he has broken a condition on breach of which he is, under the terms of a contract between him and his landlord, liable to be ejected: Provided that where the contract is made after the commencement of this Act, the condition is not inconsistent with the provisions of this Act."

Section 178(l)(c) provides that nothing in any contract between a landlord and a tenant made before or after the passing of the Act shall entitle a landlord to eject a tenant otherwise than in accordance with the provisions of the Act. Section 155(1) may also be reproduced.

"A suit for the ejectment of tenllillt, on the ground- ( a) ............................... .

(b) that he has broken a condition on breach of which he is, under the terms of a contract between him and the landlord, liable to ejectment,

Shall not be entertained unless the landlords has served, in the prescribed manner, a notice on the tenant specifying the particular misuse or breach complained of, and where the misuse or breach is capable of remedy, requiring the tenant to remedy the same, and, in any case, to pay reasonable compensation for the misuse or breach, and the tenAnt has failed to comply within a reasonable time with that request."

It has been contended by Mr. B. Sen for the appellant that by virtue of the proviso to s. 10 the requirement of consistency

of conditions with the provisions of the Act is limited to contracts made after the commencement of the .Act. In the present case the registered instrument was executed before the commencement of the Act. On a true construction of s. 10 and by necessary implication this freedom from the applicability of or consistency with the provisions of the Act is absolute and unqualified and the effect of the proviso is that any condition imposed by any of the provisfons of the Act is excluded whenever there is a case where the contract has been entered jnto before the commencement of the Act. It has been i; mphasised that s. 10 is a specific provisio11 relating to permanent tenures and it cannot be restricted or curtailed. by the general provisions of s. 178 ands. 155 of the Act.

In this manner the applicability-of s. 155 has been sought to be excluded.

Now s. 10 simply provides that the holder of a permanent tenure shall n.ot be ejected except on the ground that he has broken a condition on breach of which he is liable to be ejected under the teims of the contract. Section 17 8(1 )( c) says categorically that even tho_ugh the contract has been made before the passing of the Act the landlord cannot eject a tenant otherwise than in accordance with its provisions. Section 155 places a bar against a suit being entertained unless the requirements laid down therein have been satisfied.

Therefore even though under s. 10 the appellant became entitled to eject the respondents on account of the breach of the condition relating to paYITlent of rent the condition precedent for a suit being entertained by a court was the notice served in the prescribed manner specifying the breach which was capable of remedy and in which the tenant should have been required to remedy the same or in any case to pay reasonable compensation for the breach. If the tenant had failed to comply within a reasonable time with that request then alone the suit was maintainable. Even if under the proviso to s. 10 the contract which was entered into before .the commencement of the Act could contain conditions which were inconsistent with the provisions of the Act that did not dis!Jense with the requirements of s. 155 of !he Act whic_h .had to be satisfied before any suit could be entertmed. As the notice which had been served by the appellant did not comply with the provisions of s. 155 the courts below rightly negatived his claim to the entire compensation money.

The appeal fails and is dismis8ed with costs.

G.C.

Appeal dismissed.

GOPI KRISHNA KANORIA

DRAUPADI SAHAYA & ORS

February 23, 1970

C. SHAH

K. S. HEGDE

A. N. GROVER, JJ.

Bihar Tenancy Act, 1885

ss. 10, 155 and 178(1)(c)

s. 155

ss. 10 and 178(1)(c)

June 22, 1953

Bihar

July 26, 1954

Bihar Land Reforms Act, 1950

s. 155

Bihar Tenancy Act, 1885

s. 10

s. 155

Section 10

Section 178

Section 155

s. 10

s. 155

s. 155

CIVIL APPELLATE JURISDICTION

Patna High Court

B. Sen

B. P. Maheshwari

Sarjoo Prasad

U. S. Prasad

Santok Singh

U. P. Singh

Grover

October 29, 1885

Frederick Richard Simson

George Venes

Land Reforms Act 1950

s. 155

Bihar Tenancy Act 1885

s. 155

s. 155

Section 10

Section 178(l)(c)

Section 155(1)

s. 10

s. 10

s. 10

s. 178

s. 155

s. 10

Section 17

Section 155

s. 10

s. 10

s. 155

s. 155