Union of India V. Jubbi and Dunia,
[1967] INSC 201 (5 September 1967)
05/09/1967 SHELAT, J.M.
SHELAT, J.M.
SHAH, J.C.
SIKRI, S.M.
CITATION: 1968 AIR 360 1968 SCR (1) 447
ACT:
The Himachal Pradesh Abolition of Big Landed
Estates and Land Reforms Act (15 of 1954)--If applicable to State as landlord.
HEADNOTE:
The Himachal Pradesh Abolition of Big Landed
Estates and Land Reforms Act, 1953, lays down a scheme for the abolition of
proprietary rights of landowners: (1) under s. 11 there would be a direct
transfer of the rights of a landowner from the landowner to the occupancy
tenant; (2) under s. 15, in respect of lands situate in an area specified by
Government, there would be a transfer to the State Government, the tenants of
such lands becoming the tenants of the Government; and (3) under s. 27, in the
case of large holdings the ownership would be first transferred to the State
Government and thereafter by the State Government in favour of the tenant.
The respondent made an application under s.
11 of the Act for acquiring proprietary rights in certain lands as he was the
occupancy tenant of those lands, the Union of India being the landowner.
On the question whether the Act was intended
to affect land owned or held by the Union or State Government,
HELD:There is nothing in the provisions of
the Act suggesting expressly or by necessary implication that the Act was not
applicable to the State, or any distinction between lands owned and held by
citizens and lands owned and held by the State. [454C] The object of the Act
was to abolish big landed estates and alleviate the conditions of occupancy
tenants by abolishing the proprietary rights of landowners in them and vesting
such rights in the tenants. If discrimination between the State and the citizen
in the matter of the application of the Act is made it would result in the
anomaly that whereas occupancy tenants of lands owned by citizens would have
the benefit of such a beneficent legislation, occupancy tenants of lands owned
and held by the State would not get such benefit. An intention to bring about
such a discrimination cannot be attributed to the legislature whose avowed
object was to do away, in the interest of social and economic justice,
landlordism in the State. [454-D-G] Superintendent and, Legal Remembrancer V.
Corporation of Calcutta, [1967] 2 S.C.R. 170, followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 957 of 1964.
Appeal from the judgment and order dated
January 12, 1963 of the Judicial Commissioner's Court. Himachal Pradesh in
Civil Misc. 2nd Appeal No. 15 of 1961.
R. Ganapathy Iyer, R. N. Sachthey and S. P.
Nayar, for the appellant.
D. R. Prem and R. Thiagarajan, for the
respondent.
448 The Judgment of the Court was delivered
by Shelat, J. The Himachal Pradesh State legislature passed the Himachal
Pradesh Abolition of Big Landed Estates and Land Reforms Act 1953 (hereinafter
referred to as the Act) on June 17, 1953 and the Act was brought into force
with effect from January 26, 1955. The validity of the Act was thereafter
successfully impugned (cf. Shri Vinod Kumar v. State of Himachal Pradesh)(1).
The Parliament then passed the Validating Act, 56 of 1958. That Act was itself
then challenged in Jadab Singh v. Himachal Pradesh Administration (2 ) but the
challenge was rejected and the Act since then remains on the statute book as a
valid piece of legislation.
On June 4, 1959 the respondent made an
application under s. II of the Act for acquiring proprietary rights in the
lands set out there in claiming to be the cultivating tenant of those lands and
produced a copy of Jamabandhi in support of his claim. He stated that he was
the tenant of the Union of India in respect of the said lands. that he was
cultivating the said lands, that he was paying Rs. 35/5/annually as rent and
Rs. 23/8/as annual land revenue and other rates and cesses assessed on the said
lands and that he was willing to pay compensation as provided by the Act. On
November 26, 1959 the Forest Department on behalf of the Union filed objections
alleging that the application was incompetent, that the said lands formed part
of the protected forest. that the relationship between the respondent and the
Union was not that of landlord and tenant, that the Union being the paramount
owner could not be characterised as landlord qua the respondent. that a number
of trees stood on the said lands, that the respondent was merely a lessee of
the said lands which were a forest area, that the entries in the revenue record
in respect of the said lands were incorrect and could not be relied on in an
application under section 11 and consequently the Compensation Officer. Mahasu,
had no jurisdiction to grant it. The Compensation Officer held, that the said
area was not a forest area, that there were no trees on the said lands as
alleged and that since the respondent was mentioned as an occupancy tenant in
the Jamabandhi he was entitled to proprietary rights in the said lands on his
paying compensation which he fixed at Rs. 76.40 np. The Forest Department there
upon filed an appeal before the District Judge, Mahasu. principally on the
ground that the Compensation Officer had not followed the procedure laid down
in the Act and had not given to the Forest Department reasonable opportunity to
put forward its case. The Forest Department did not dispute in the said appeal
that the appellant held the said lands as a tenant of the Government.
On July 26, 1960 the District Judge allowed
the appeal and remanded the case to the Compensation Officer directing him to
raise proper issues and decide the matter in accordance with law. Accordingly.
the Compensation Officer raised (1) [1959] Supp. 1 S.C.R. 160.
(2) [1960] 3 S.C.R. 755.
449 four issues, viz., Whether there were
trees on the said lands, whether the lands formed part of the forest whether
the respondent was a tenant in respect of the said lands and whether there was
any impediment in the way of granting proprietary rights to him . The
Compensation Officer held that the respondent was a tenant, there was no
impediment in granting proprietary Tights to (him and allowed once again the
respondents' application. The appeal by the Union against the said order before
the District Judge failed. The District Judge held that the respondent was ,the
tenant of the Union' and that the Act applied to the said lands as also to the
Union. The Union filed a Second Appeal before the Judicial Commissioner
challenging the correctness of the District Judge's said order. Both the
Compensation Officer and the District Judge having held on the strength of the
Jamabandhi that the respondent was the occupancy tenant in respect of the said
lands, the only questions raised in the Second Appeal were (1) that the Act did
not bind the Union or the State Government and (2) that the respondent's
application under s. 11 could not lie against the Union in respect of lands
owned by it. The Judicial Commissioner followed the ratio laid, down in
Director of Rationing v. Corporation of Calcutta(1) which was the law then
prevailing and in view of that decision posed the question whether the Act
applied to and was binding on the Union. He held that though the Act did not
contain any express provision to that effect, an examination of sections 11,
15, 27 and 54 showed that the Act applied to Government land and was by
necessary implication binding on the Union. He observed that the object of the
Act and the acquisition of right. title and interest of the landowner in the
land of any tenancy held under him by a tenant was that such interest should
ultimately be transferred to the tenant. He held that on a consideration of the
relevant provisions of the Act "the conclusion to which I have been driven
is that by necessary implication the Act binds the Government and an
application under section I I of the Act by a tenant is competent in respect of
land held by him under the Government." In that view he dismissed the
Union's appeal. The Union of India filed this appeal after obtaining
certificate under Art. 133(1)(c) of the Constitution. After this appeal had
gone on for some time we felt that as it involved a question of some public
importance it was desirable that we should have the assistance of some senior
counsel. We accordingly directed the Registrar to appoint a Senior Counsel
amicus curiae. Accordingly, Mr. D. R. Prem appeared before us. We gratefully
acknowledge the assistance rendered by him.
Mr. Ganapathy Iyer for the Union of India
took us through the different provisions of the Act and submitted that
considering the scheme and the object of the Act the conclusion was inescapable
that the legislature while enacting the Act did not intend that (1) [1961] 1
S.C.R. 158.
6SCI--3 450 it should to the Government or to
lands owned by the Government. To appreciate the contention ;it is necessary to
examine some of the provisions of the Act. But before we do that it,would be
expedient to clear the ground regarding the question the applicability of
statutes on the State and its immunity if any 'from such statutes. In Director
of Rationing v. The Corporation of Calcutta(1) the majority judgment held that
the law applicable to India ':before the Constitution was as authoritatively
laid down in the Province of Bombay v. Municipal Corp. of Bombay(2 ) that the
Constitution has not made any change in the legal position and that on the
other hand it has clearly indicated that the laws in force before January 26,
1950, shall continue to have validity even in the new set up except in so far
as they were in conflict with the express provisions of the Constitution. The
majority also held that the rule of interpretation of statutes that the State
was not bound by a statute unless it so provided in express terms or by
necessary implication was still good law. Wanchoo J. (as he then was) in his
dissenting opinion, however, held that the rule of construction which was based
on the royal prerogative as known to the common law of England could not be
applied to India now that there was no crown in India and when the common law
,of England was not applicable and that therefore the State was bound by a
statute unless it was exempted expressly or by necessary implication. The rule
in that decision is no longer good law. In Supdt. & Legal Remembrance, West
Bengal v. Stale of West Bengal(1) this Court considered the correctness of that
decision and disagreeing with the majority view accepted as correct the
minority opinion. The Court held that the common law rule of construction that
the crown was not, unless expressly named or clearly intended, bound by a
statute was not accepted as a rule of construction throughout India and even in
the Presidency towns it was not regarded as an inflexible rule of construction.
It was not statutorily recognised either by incorporating in indifferent Acts
or in any General Clauses Act; at the most it was relied upon as a rule of
general guidance in some parts of the -country. The legislative practice
established that the various legislatures of the country provided specifically
exemptions in favour of the crown whenever they intended to do so indicating
thereby that they did not rely upon any presumption but only or ,express
exemptions. The Court also observed that the Privy ,Council in Province of
Bombay v.
Corp. of Bombay ( 2) gave it approval to the
rule mainly on concession made by Counsel. The Court then held that the archaic
rule based on the prerogative an( perfection of the crown could have no
relevance to a democrat, republic; that such a rule was inconsistent with the
rule of law (1) [1961] 1 S.C.R. 158.
(2) 73 I.A. 271.
(3) [1967] 2 S.C.R. 170.
451 based on the doctrine of equality and
introduced conflicts and anomalies. Therefore, the normal construction, that an
enactment applies to citizen as well as to the state unless it expressly or by
necessery impliciter accepted the State from its operation, steered clear of
all anomalies and consistent with the philosophy of equality enshrined in the
Constitution. The position now therefore is that a statue applies to State as
much it does to a citizen unless it expressly or by necessary implication
exempts the State from its operation.
It is conceded that neither s. II nor any
other provision in the Act contains any express exemption. Broadly stated, if
the legislature intended to exclude the applicability of the Act to the State
it could have easily stated in section 11 itself or by a separate provision
that the Act is not to be applied to the Union or to lands held by it. In the
absence of such a provision, in a constitutional set up as the one we have in
this country and of which the overriding basis is the broad concept of
equality, free from any arbitrary discrimination, the presumption would be that
a law of which the avowed object is to free the tenant of landlordism and to
ensure to him security of tenure would bind all landlords irrespective of
whether such a landlord is an ordinary individual or the Union.
The question then is whether in the absence
of any express exemption the statute exempts the State by necessary
implication? The preamble of the Act declares that its object is not only to
abolish big landed estates but also to reform the law relating to tenancies.
Section 2(3) provides that the expression "estate",
"land-owner" and "holding" Will have the meanings
respectively assigned to them in the Punjab Land Revenue Act, 1887. Turning,
therefore to the Punjab Land Revenue Act, 1887 we find that section 3(1) of the
Act defines "estate" as meaning any area for which a separate
record-of-rights has been made or which has been separately assessed to land
revenue or which the State Government may by general rule or special order declare
to be an estate. Section 3(2) provides that "landowner" does not
include a tenant or an assignee of land revenue, but includes a person to whom
a holding 'has been transferred, or an estate or holding has been let in farm
under the Act for the recovery of an arrear of land revenue or of a sum
recoverable as such an arrear and every other person not hereinbefore in this
clause mentioned who is in possession of an estate or any share or portion
thereof. or in the enjoyment of any part of the profits of an estate.
"Holding" has been defined as
meaning a share or portion of an estate held by one land-owner or jointly by
two or more landowners. Since the land in question is admittedly assessed to
land revenue as is clear from the copy of the Jamabandhi produced by the
respondent here can be no question that the land is estate and the Union of
India is the landowner thereof. Reverting now to the Abolition Net, section
2(5) defines "land" as meaning land which is not 452 occupied as a
site of any building in a town or village and in occupied or has been let for
agriculture purposes or purpose subservient to agriculture,or for pasture.
Section 2(6) defines "land lord" as a person under whom a tenant
holds land and to whom the tenant is or but for a contract to the contrary
would be liable .to pay rent for that land. Clause 13 defines "rent"
as meaning whatever is payable to a landlord in money, kind or service be a
tenant on account of the use or occupation of land held by him Clause 17
defines a "tenant" as meaning a person who holds land under another
person, and is or but for a contract to the contrar would be liable to pay
rent-for that land to that other pet-son an clause 19 defines
"tenancy" as meaning a parcel of land held by tenant of a landlord.
under one lease or one set of conditions. I view of these definitions there can
be no doubt that the responder was -a tenant having a right of occupancy within
the meaning of sections 3 And 4 of the Act. Indeed, all throughout the
proceedings the position that he was a tenant and the Union was h landlord and
the landowner of the land in question was accept without any dispute. Section 3
defines a tenant as having a right of occupancy in the land and section 8
provides that a tenant who immediately before the commencement of the Act had a
right c occupancy in any land under the Punjab Tenancy Act 1887, a applied to
Himachal Pradesh shall on the commencement of the Act be held to have for all
purposes a right of occupancy in th land. Chapter III of the Act deals with
acquisition of proprietor rights by tenants. Sections 9 and 10 provide for the
appointment of compensation officers to carry out the purposes of the Act an
confer power on the State Government to exercise control an superintendence
over such officers, to issue instructions for the guidance of compensation
officers and to cancel or revise any the orders, acts and proceedings of such
officers other than those in respect of which an appeal lies under this Act.
Section I idea with the right of a tenant to acquire the interests of a landown
and provides inter alia that a tenant shall on application made the
compensation officer at any time after the commencement this Act be entitled to
acquire on payment of compensation. the right, title and interest of the landowner
in the land of the tenant held by him under such landowner. Sub-section 2
contains certain exemptions with which we are not concerned in this appeal. Sub
section 3 enjoins upon the compensation officer on a tenant meaning an
application under sub-section (1). to determine the amount of compensation
payable to the landowner in respect of the at in accordance with the provisions
of sections 12 and 13. Under sub-section 5 the applicant has to deposit the
amount of compensation in a Government treasury and thereupon the Compensation
Officer has to issue a certificate declaring the tenant to be the landowner in
respect of the land specified, in the certificate. Sub section 6 provides that
on and from the date of the grant of the certificate the tenant shall become
the owner of the land comprised in the tenancy and the right, title and
interest, of the landowner 453 in the said land -shall determine. Sections 12
and 13 deal, as aforesaid, with compensation payable by the tenant.
Section 14 provides that a tenant holding a
tenancy exceeding 12 acres of land can surrender 1/4th of such land to the
landowner whereupon the tenant would become the owner of the rest of the land
of his tenancy.
There is nothing in these sections which
would indicate that they or any of them impliedly exempt the State or its lands
from their operation. Sections 11 to 14 thus contain provisions where, under
the tenant, as a result of their operation, acquires the right, title and
interest in the land held by him as a tenant on his paying compensation to the
landowner as fixed by the Compensation Officer.
Under sections 15 to 24, notwithstanding the
provisions of sections 11 to 14, the State Government is empowered on a
declaration made by it to acquire the right, title and interest of the
landowners in the lands of any tenancy held under him by a tenant in -respect
of such area or at such time as may be specified by it in a notification. They
also provide that upon such declaration the right. title and interest of such
landowner vests in the Government. Such a landowner is entitled to compensation
as provided in section 16 and onwards on his rights vesting in the Government.
In such cases the tenant becomes the tenant of the Government and has to pay
rent directly to the Government and the landowner becomes henceforth exempt
from payment of land revenue. Section 27 then provides that notwithstanding
anything contained in section 11 and onwards a landowner who holds land,. the
annual land revenue of which exceeds Rs.
125, the right, title and interest 'of such
landowner in such land except such land which is under his personal cultivation
shall be deemed to have been transferred and vested in the State Government.
Such a landowner also is entitled to compensation determined having regard to
sections 17 and 18 in accordance with the provisions of Sch. II. Sub-section 4
of section 27 provides that the right, title and interest of the landowner
conferred on the Government by subsections I and 2 shall be transferred by the
State Government on payment of compensation in accordance with Sch. 1 to such
tenant who cultivates such land. Sub-sec. 5 provides for rehabilitation grant
payable to such small landowners whose right, title and interest have been
extinguished and who do not have any other means of livelihood.
A reading of sections 11 to 27 reveals that
they lay down three parts of the scheme of abolition of proprietary rights of
landowners; (1) under s. II there would be a direct transfer to and -vesting of
the right, title and interest of the landowner in the occupancy tenant on his
paying compensation as assessed by the Compensation Officer; (2) under section
15 in respect of -lands situate in an area specified by Government, there would
be a transfer and 454 vesting of ownership of such lands in the State
Government and the tenants of such land becoming the tenants of the Government
and (3) under S. 27 where the holding is large enough to have an annual
assessment of over Rs. 125, the ownership in such lands would be first
transferred and vested in the State Government and thereafter by the State
Government in favour of the tenant.
The contention, however, was that these three
ways of abolishing the landowners' interest and transferring in two out of
these three methods of the proprietary rights to the tenants suggest that the
Act was not intended to affect the land owned or held by the Union or the State
Government.
This contention cannot be accepted, for,
there is nothing in these provisions suggestive of their being not applicable to
the State or of any distinction between the lands owned and held by citizens
and lands owned and held by the State.
There can therefore be no room for any
assumption that the legislature had in mind any such discrimination between the
State and the citizens.
Mr. Ganapathy Iyer drew Our attention to
sections 48 and 54(1)(g) also but we fail to see how they can be relevant for
finding out whether the State is by implication exempted from the operation of
the Act.
It is clear that the object of the Act was to
abolish big landed estates and alleviate the conditions of occupancy tenants by
abolishing the proprietary rights of the landowners in them and vesting such
rights in the tenants.
That being the paramount object of the
legislature it is hardly likely that it would make any discrimination between
the State and the citizen in the matter of the application of the Act. This is
especially so because if such a discrimination were to be brought about through
a construction suggested by the State it would result in an anomaly in the
sense that whereas occupancy tenants of lands owned by citizens would have the
benefit of such a beneficent legislation occupancy tenants of lands owned and
held by the State would not get such benefit. An intention to bring about such
a discrimination against the latter class of tenants cannot be attributed to
the legislature whose avowed object was to do away in the interest of social
and economic justice landlordism in the State. In view of the decision in
Supdt. & Legal Remembrancer v. Corp. of Calcutta(1) the State cannot also
claim exemption on the ground only that the Act does not expressly or by
necessary implication make it binding on the State.
For the reasons aforesaid, we must hold that
the conclusion arrived at by the Judicial Commissioner was correct. The appeal
is dismissed. No order as to costs.
V.P.S.
Appeal dismissed.
[1967] 2 S.C.R. 170.
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