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Prem Singh and ors. Vs. Hukam Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal Nos. 719 and 720 of 1968
Judge
Reported inAIR1974All50
ActsUttar Pradesh Tenancy (Amendment) Act, 1947 - Sections 27(3); Uttar Pradesh Tenancy Act, 1939 - Sections 165, 171, 180, 202 and 204; Uttar Pradesh Zamindari Abolition Rules, 1951; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 129 to 230 and 344; Uttar Pradesh Zamindari Abolition Act, 1950 - Sections 184 and 230
AppellantPrem Singh and ors.
RespondentHukam Singh and ors.
Appellant AdvocateS.S. Varma and ;R.S. Varma, Advs.
Respondent AdvocateS.P. Srivastava, ;Swami Dayal, ;R.S. Misra, Advs, and ;Standing Counsel
Excerpt:
(i) tenancy - ejection - section 27 (3 ) of u. p. tenancy (amendment) act, 1947 - prospective immunity from ejectment - sub tenant not liable to ejectment before the expiry of three years from the date of declaration as sub tenant - does not confer a fixed term tenancy for three years. (ii) limitation - retrospective and prospective - sections 230 and 344 of u. p. zamindari abolition and land reforms act, 1951 and serial number 25 (2) of u.p. zamindari abolition rules, 1951 - limitation period generally has retrospective effect - but cannot be recognized to have a retrospective effect which would divest persons of rights vested in them. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag......satish chandra, j.1. hukam singh, respondent no. 1, was the occupancy tenant of the holding in dispute. on 20th may, 1944, the zamindar obtained a decree for his ejectment under section 171 of the u. p. tenancy act, 1939. the decree was executed and possession taken by the zamindar. thereafter, he let out the land to the predecessor of the present appellants. on coming into force of the u. p. tenancy (amendment) act 10 of 1947 hukam singh made an application for reinstatement to the holding. this application was allowed on 10th january, 1949. under the proviso to section 27 (3) of the amending act, the present appellants were declared sub-tenants not liable to ejectment for three years. the three years immunity expired on 10th january, 1952.2. in 1955 hukam singh filed a suit for a.....
Judgment:

Satish Chandra, J.

1. Hukam Singh, respondent No. 1, was the occupancy tenant of the holding in dispute. On 20th May, 1944, the zamindar obtained a decree for his ejectment under Section 171 of the U. P. Tenancy Act, 1939. The decree was executed and possession taken by the zamindar. Thereafter, he let out the land to the predecessor of the present appellants. On coming into force of the U. P. Tenancy (Amendment) Act 10 of 1947 Hukam Singh made an application for reinstatement to the holding. This application was allowed on 10th January, 1949. Under the proviso to Section 27 (3) of the Amending Act, the present appellants were declared sub-tenants not liable to ejectment for three years. The three years immunity expired on 10th January, 1952.

2. In 1955 Hukam Singh filed a suit for a declaration under Section 229-C of the U. P. Zamindari Abolition and Land Reforms Act that he was the sirdar in possession of the land in dispute and that the present appellants had no right in it. He also filed a similar declaratory suit in the civil Court. The revenue Court suit was dismissed for non-prosecution. During the pendency of the civil suit Ch. IXA of the Zamindari Abolition Act came into operation. On 9th July, 1956, Hukam Singh made an application under Section 240-G of this Act praying for the removal of the names of the present appellants as sirdars from the revenue papers. It appears that subsequently in 1957 Hukam Singh instituted yet another declaratory suit against the present appellants. In that suit it was prayed in the alternative that if the defendants are held to be in possession, a decree for their ejectment under Section 202 of the Zamindari Abolition Act may also be granted. While these proceedings were pending, the land in dispute came under consolidation operations.

3. Hukam Singh filed objections under Section 9 of the U. P. Consolidation of Holdings Act claiming to be the sirdar of the plots. He claimed that soon after the expiry of the three year period on 10th January, 1952, he obtained possession and was since then in cultivatory possession of the plots. He being an occupancy tenant, became a sirdar under Section 19 of the Zamindari Abolition Act.

4. The appellants contested the objection. Their case was that they had themselves continued to be in cultivatory possession throughout. As sub-tenants they became asa-mis under Section 21 (1) (c) of the Zamindari Abolition Act. The cause of action for their ejectment accrued on 10th January, 1952. At that time the prescribed period of limitation was one year. On the expiry of that prescribed period of limitation, they became sirdars under Section 204 of the Act

5. The consolidation authorities concurrently found that the erstwhile sub-tenants hud continued to remain in possession of the plots. Hukam Singh never regained possession. After the expiry of the prescribed period of limitation of one year, the title of Hukam Singh extinguished and the present appellants became sirdars under Section 204.

6. Feeling aggrieved, Hukam Singh filed a writ petition in this Court. A learned single Judge, relying upon the decision of another single Judge in Khubi Singh v. Joint Director of Consolidation, 1968 RD 23, held that the amendment to Entry 25 in Appendix III of the Zamindari Abolition and Land Reforms Rules, whereby the period of limitation of one year was substituted by 'none', was retrospective. After the amendment there was no period of limitation for such a suit and so the erstwhile sub-tenants did not become sirdars. The contrary view of the Deputy Director of Consolidation was manifestly erroneous in law. On this view the writ petition was allowed and the matter was sent back to the Deputy Director of Consolidation for disposal of the revision afresh. The erstwhile sub-tenants came up in special appeal.

7. At the hearing of the appeal it was urged that the sub-tenants held land for a fixed term on the expiry of which cause of action for their ejectment accrued, with the result that a suit for their ejectment ought to have been filed within one year of the date of vesting. In support reliance was placed on Unchan Singh v. Board of Revenue, 1962 All LJ 229 and Purai v. Deputy Director of Consolidation, 1970 RD 249. It was also urged on behalf of the appellants that the amendment to Entry 25 of Appendix III of the Rules was not retrospective so as to take away rights of a sirdar which had already accrued and vested in an erstwhile asami. The Bench observed that the vital question for consideration was on what day would the cause of action arise under Section 202 (b) for filing a suit for ejectment of an asami mentioned in Clause (b) of Section 21 (1), it observed that the decision in Unchan Singh's case proceeds on the assumption that the declaration of sub-tenancy under the proviso to Section 27 (3) created a sub-lease for a fixed period of three years. It felt that this decision requires reconsideration. The Bench observed that a Full Bench in Aziz Alam v. Deputy Director of Consolidation, 1972 RD 266, had observed that in Unchan Singh's case the asami held land for a fixed period of three years under Section 27 of the U. P. Tenancy (Amendment) Act, 1947. Since this observation may imply an approval of the assumption in Unchan Singh's case the Bench felt that it is desirable that the matter may be heard by a still larger Full Bench. It referred the following questions of law for decision to a larger Full Bench:

'(1) Whether persons declared to be subtenants under the proviso to sub-section (3) of Section 27 of the U. P. Tenancy (Amendment) Act, 1947, hold the land from year to year or for a fixed period within meaning of Section 202 (b) of the Zamindari Abolition Act?

(2) Whether the amendments introduced to serial No. 25 (2) of the third appendix of the Zamindari Abolition Rules by the notification dated 20th November, 1954, were retrospective in operation?'

8. In regard to the first question the position is that Sub-section (1) of Section 27 of the U. P. Tenancy (Amendment) Act, No. X of 1947 entitled certain classes of ejected tenants mentioned under Clauses (a), (b) and (c) thereof to apply for reinstatement to the holding. Such an application could be made within six months from the date of the commencement of that Act, namely, 14th June, 1947. Sub-section (3) of Section 27 provided:

'(3) On receipt of an application under Sub-section (1) or Sub-section (2) the Court shall give notice to the landholder and to the tenant, if any, in possession of the whole or part of such holding. After making such enquiry as may be necessary, if the Court is satisfied that the applicant was so ejected or dispossessed, it shall order that the applicant be reinstated in such holding or part thereof, as the case may be, and that any other person in possession of it be ejected therefrom:

Provided that if such holding or any part thereof is in the possession of any person to whom the landholder had let it out before the first day of September, 1946, such person not being a relation, dependant or servant of the landholder, the Court instead of ordering the ejectment of such person shall, notwithstanding the provisions of any law for the time being in force, declare him to be the sub-tenant of the applicant in respect of such holding or such part. The person so declared as a sub-tenant shall not be liable to ejectment until after the expiry of three years from the date of the declaration. In such a case, the rent payable by the applicant to the land holder shall be the rent payable by him for such land before his ejectment or the amount calculated according to the circle rates which ever is less, and the rent payable to the applicant by the person declared as sub-tenant shall be the amount payable by such person to the landholder immediately before the declaration or twelve and a half per cent., over and above the amount calculated according to the circle rates applicable to hereditary tenants, whichever is higher.'

Sub-section (5) is also material. It reads:

'(5) On reinstatement, the rights and liabilities of the applicant existing on the date of his ejectment or dispossession in respect of the holding or any part thereof from which he was ejected or dispossessed, shall revive subject to the proviso to Sub-section (2).'

For the appellant it was submitted that the declaration of sub-tenancy under the proviso to Sub-section (3) makes the subsequently inducted tenant a statutory sub-tenant. His only right is to remain in possession for three years and thereafter he ceases to be the subtenant. Hence the creation of sub-tenancy is for a fixed term of three years from the data of declaration. On expiry of this term he having ceased to be a sub-tenant, his continued possession will be as a trespasser. There are several difficulties in accepting this submission.

9. The proviso declares the person to be the sub-tenant of the reinstated tenant, in regard to the holding. Thus a privity of estate is established between the reinstated tenant and the sub-tenant in respect of the holding. The proviso says that the person so declared as a sub-tenant shall not be liable to ejectment for three years. It does not say that the person shall be declared as a subtenant for three years. The reason appears to be that if the sub-tenant had been given a fixed term tenancy for three years, he would not have been able to gain immunity from ejectment even for this period of three years. Section 27 (3) of the Amendment Act was a part of the U.P. Tenancy Act, 1939. In Ramesh Chand v. Board of Revenue : AIR1973All120 a Full Bench held that Section 27 deals with the ejectments effected prior to the amendment under Sections 165, 171 and 180 of the principal Act. In a way Section 27 was intended to amend the effect of Sections 165. 171 and 180. Section 27 'was in substance a proviso to each of these three sections. The proceedings under Section 27 of the Amendment Act are proceedings under the U. P. Tenancy Act, 1939. Thus the person who was declared as a sub-tenant will be deemed to be a sub-tenant within meaning of U. P. Tenancy Act, 1939 and its various provisions dealing with sub-tenants will be applicable. Under Section 39 (2) of the U. P. Tenancy Act a sub-tenant cannot sub-let a holding. Section 171 of the U. P. Tenancy Act provides for ejectment of tenants for illegal transfers, sub-lettings etc. If the declared sub-tenant were to illegally sublet his holding he would be immediately liable to ejectment under Section 171. But. the Legislature wanted to give a complete immunity from ejectment to such declared subtenants for three years. That is why it was expressly provided that such sub-tenant will not be liable to ejectment until after the expiry of three years from the date of the declaration. This was not with a view to confer a fixed term tenancy for three years, but to give him a prospective immunity from ejectment for three years in spite of his being a sub-tenant, who would have otherwise been liable to ejectment even prior to that term 'of years.

10. The matter can be looked at from a slightly different view point. On the ejectment of a tenant if the land is let out to another tenant the newly inducted tenant becomes the hereditary tenant; but after reinstatement of the previous tenant what will be the status of the subsequently inducted tenant for the period between his induction and his declaration as a sub-tenant? This matter was considered by a Full Bench of this Court in : AIR1973All120 . The Bench held that Sub-section (5) of Section 27j provides for the revival of the rights of ejected tenant. The effect is nullification of operation of the decree for ejectment. With the revival of the tenancy rights of the ejected tenant, the position would be that the person who was inducted later would no longer be entitled to the rights and status of the hereditary fenant. The necessary consequence and effect of the revival of the rights would be the nullification of whatever rights may have initially accrued to the subsequently inducted person. The nullification is co-extensive with the revival. Since the pre-existing rights and liabilities of the original tenant revive, their revival can be effective only if the nullification of She rights and obligations of the subsequently inducted tenant is co-extensive in duration. The subsequently inducted tenant could not hence validly say that he was ever the hereditary tenant of the holding. The Full Bench observed :--

'The question then arises as to the status of the subsequently inducted person. It has been seen that his status as a hereditary tenant is nullified by the order of reinstatement. Under the proviso to Section 27 (3) the Court is to declare such person us the sub-tenant of the applicant, entitled to remain in possession for a fixed period of three years from the date of the declaration. The proviso does not expressly say that the declaration as a sub-tenant is to be prospective. The only prospective provision is about exemption from liability to ejectment for three years from the date of the declaration. In our opinion, the proviso ought to be read as having the effect of a retrospective declaration as a subtenant with a prospective immunity from ejectment for three years. Read this way, the proviso has the merit of not leaving a vacuum in regard to the period between his induction and the date of the declaration as sub-tenant. The declaration as sub-tenant is effective for this prior period as well with the result that for this intervening period the applicant remains the hereditary tenant, the subsequently inducted person being his subtenant.'

Since the sub-tenant is deemed to be a sub-tenant for this prior period as well it cannot be said that the declaration is as a sub-tenant for a fixed period of three years. It is true that the sub-tenant gets an immunity from ejectment for three years, but his term as a sub-tenant is bound to be much larger because of the inclusion of the preceding period of time in the sub-tenancy. The preceding period is liable to vary from case to case, depending on the date of his induction and the date of declaration. In some case it may be an year only and in some othersit may be several years. It is hence not possible to predicate any certain period for which the subsequently inducted person would be deemed to have been declared a sub-tenant. This also goes to show that the declaration as a sub-tenant is not for any fixed period. In agricultural tenancies if the term is not fixed, the tenancy is from year to year. In 1972 RD 266 a Full Bench held that in 1962 All LJ 229, the asami held land for a fixed term of three years under the proviso to Section 27 (3) of the Amendment Act, 1947. A perusal of the decision in Unchan Singh's case 1962 All LJ 229 shows that the Bench did not discuss the question whether the person declared under the proviso to Section 27 (3) was a sub-tenant from year to year or for a fixed term. But that seems to be the assumed implication in the decision. This view and its implied approval in Aziz Alam's case 1972 RD 266 does not lay down the law correctly.

11. In 1970 RD 249 a Bench held that the question whether an asami holds from year to year or not is to be gathered from the terms of Section 21 of the U. P. Act No. 1 of 1951 and that only asamis of certain categories have been classed as asamis from year to year and the asamis outside those categories cannot be classed as asamis from year to year. According to this decision only asamis mentioned in Section 21 (2) (occupants of grove land) would be Asamis from year to year while all other cases of asamis mentioned to various Clauses of Section 21 (1) will not.

12. Sub-section (2) makes persons recorded as occupants of grove land in the revenue papers of 1356F asamis, entitled to take or retain possession from year to year. Since under this provision occupants, namely, trespassers who had no pre-existing legally recognised interest in the land, were conferred the status of asamis, it became necessary to specify the term for which they would be entitled to hold the land as asamis. Sub-section (1) of Section 21, however, deals with various categories of tenants, and persons who had subsisting rights in the land on the date immediately preceding the date of vesting. It deals with various kinds of tenants, viz., a non-occupancy tenant, a sub-tenant of grove land, a sub-tenant referred in the proviso to sub-section (3) of Section 27, a mortgagee in possession, a non-occupancy tenant of pasture land, a non-occupancy tenant of land set apart for taungya plantation and tenant of sir etc. Since these categories of persons had the right to hold the land either from year to year or for a fixed term depending upon their pre-existing law and their contract, the Legislature did not specify the term of these persons; because it did not intend to effect any change in their terms. The categories of persons mentioned in Sub-section (1) stand in an entirely different position than the trespassers covered by Sub-section (2). Hence from the provision of an year to year term for the trespassers mentioned in Sub-section (2), an implication that all the categories of tenants mentioned invarious clauses of Sub-section (1) will have a fixed term tenancy cannot be inferred. The question whether a person declared to be a Sub-tenant under the proviso to Section 27 (3) holds land from year to year or for a fixed term will depend upon a consideration of that provision and not upon Section 21.

13. The second question is whether the amendments introduced to serial No. 25 (2) of the third appendix of the Zamindari Abolition Rules by the Notification dated 16th November, 1954, were retrospective in operation? Section 202 provided for the ejectment of asamis. Clause (b) thereof referred inter alia, to such declared Sub-tenants. Column 4 of Entry 25 (ii) in Appendix III of the Zamindari Abolition Rules prescribed the period of limitation of one year for a suit under Section 202 (b) and under column No. 5 the time began to run:--

'From the date on which the cause of

action arose under Section 202 (b).' By a notification dated 8th October, 1952, the U. P. Legislature amended the Zamindari Abolition Rules. Paragraph 42 (1) of this notification stated :

'For the existing entry in column 5 against serial number 25 (ii) the words 'from the date of vesting where the cause of action arose under Section 202 (b) before the date of vesting and in all other cases from the date on which the cause of action arose' shall be substituted.'

The prescribed period of one year continued as before. So, in cases where the cause of action for ejectment of an asami under Section 202 (b) arose before the date of vesting, the suit had to be filed within one year from the date of vesting. Thereafter it would be barred by limitation. If no such suit was filed by 30th June, 1953, the erstwhile asami became a sirdar under Section 204 of the Act. By a notification dated November 20, 1954, entry No. 25 (ii) was again amended. Paragraph 6 (3) of this notification provided :

'The existing entries in columns 4 and 5 against the item (ii) of serial No. 25 shall be deleted and the word 'none' shall be inserted in both the columns.'

The result was that the provision of one year's period of limitation was repealed and so was the requirement that time was to run from the date when the cause of action arose.

14. On behalf of the appellants it was urged that the amendment made in entry No. 25 (ii) on 20th November, 1954, operates prospectively. It will not revive causes of action which had become dead because suits thereon had become barred by limitation before the amendment came into force. This amendment does not by its language purport to take away rights of a sirdar which had already accrued and vested in the erstwhile asami under Section 204 of the Act. Learned counsel invited our attention to 1962 AH LJ 229. This case fully supports the submission. In this case V. Bhargava, J. speaking for the Bench held that the amendment introduced inthe Appendix changing the period of limitation did not purport to be retrospective at all; although, if it was retrospective, a further question may arise whether the State Government exercising delegated authority to make rules had the power to legislate retrospectively in the matter of limitation. This decision was followed by another Division Bench in Purai v. Dy. Director of Consolidation, 1970 RD 249 and in Gaurishanker Pandey v. Deputy Director of Consolidation 1970 RD 317; and also by the Board of Revenue in Hari Ram v. Zakia Begum, 1970 RD 330.

Learned counsel for the respondents, however, urged that in its very nature the amendment was retrospective because otherwise the amendment would be infructuous. The object of benefiting the reinstated tenant would be defeated in a very large number of cases. There will hardly be some rare cases in which the orders of reinstatement have been passed after 1950 so that the cause of action for a suit for ejectment may survive till the amendment of 20th November, 1954. The law is not amended for the benefit of rare cases but for the benefit of the people in general. Learned counsel placed reliance upon the decisions of the Board of Revenue in Ram Singh v. Laxmi Narain, 1957 RD 373 and Basantu v. Jhangai, 1959 RD 245 and a single Judge decision of this Court in 1968 RD 23.

15. The primary question is whether the State Government exercising delegated authority to make rules had power to legislate retrospectively. The law on this point has been declared by the Supreme Court in Income-tax Officer, Alleppey v. M. C. Ponnoose : [1970]75ITR174(SC) . Grover, J. speaking for the Court, observed (para 5):--

'Now it is open to a sovereign legislature to enact laws which have retrospective operation. Even when the Parliament enacts retrospective laws such laws are -- in the words of Willes, J. in Philips v. Eyre, (1870) 40 LJ QB 28 at p. 37 -- 'no doubt prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.' The courts will not, therefore, ascribe retrospectively to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such Dowers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule orregulation with retrospective effect. But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect : (See Subba Rao, J., in Dr. Indramani Pyarelal Gupta v. W. R. Nathu : [1963]1SCR721 the majority not having expressed any different opinion on the point; Modi Food Products Ltd. v. Commr. of Salts Tax. U. P. : AIR1956All35 : India Sugar Refineries Ltd. v. State of Mysore, AIR 1960 Mys 326 and S. Shivdev Singh v. State of Punjab .'

So, subordinate legislation can be retrospective only if it is authorised either in express terms or by necessary implication flowing from the statutory provisions. In view of this Supreme Court decision the contrary opinion expressed in Prithvi Chand v. Union of India cannot be accepted as laying down correct law.

16. Chap. VIII of the U. P. Zamindari Abolition and Land Reforms Act consists of Sections 129 to 230. Sections 202 and 204 are in this chapter. Section 230 (1) provides that the State Government may make rules for the purpose of carrying into effect the provisions of this chapter. Section 344 (1) (d) of the Act provides that every power to make rules given by this act shall be deemed to include the powers to provide for the time within which suits, applications and appeals may be presented under this Act, in cases for which no specific provision in that behalf has been made herein. Section 344 (3) lays down that all rules made under this Act shall be published in the official Gazette, and shall, unless some later date is appointed, come into force on the date of such publica-tion.

The Legislature delegated to the State Government power to make rules for carrying into effect the provisions of the Act. To that end it could prescribe the period of time within which suits, etc. may be filed except cases for which specific provision in that behalf has been made under the Act.

17. Section 202 provides for the ejectment of asamis. Section 204 says that if a suit for ejectment of an asami of the classes mentioned therein is not instituted, or a decree obtained under such suit is not executed, within the period of limitation prescribed therefor, the asami shall, on the expiry of that period, become a sirdar of the land held by him. Sections 202 and 204 are thus inter-related provisions. When Section 230 confers rule making power for the purposes of carrying into effect the provisions of this chapter, it obviously means the carrying into effect of every section in that chapter. If a land-holder fails to file a suit under Section 202 within the prescribed period of time, Section 204 confers upon the asami the status and rights of a sirdar. The rules made under Section 230 will have to carry into effect the provisionof Section 204 as well. If a particular rule has the effect of nullifying the right of a sirdar which has accrued under Section 204, it will not be carrying into effect the provisions of Section 204 but rather contravening it or demolishing its efficacy. It has been held that where a power to make regulations is given by a statute, no regulations made under the statute can abridge a right conferred by the statute itself: see R.v. Bird. Needs Exp.. (1898) 2 QB 340. In Madurai Pillai v. Muthu Chetty, AIR 1914 Mad 287 a Full Bench held that any rule which would abridge a substantive right granted by a statute would be ultra vires unless the statute itself empowered the rule making authority to alter the provisions in the statute. Neither Section 230 nor Section 344 even whisper the grant of a rule-making power to alter the provisions of the Act.

18. In the Delhi Laws Act case, 1951 SCR 747: (AIR 1951 SC 332) and Raj Narain Singh v. Patna Administration Committee : [1955]1SCR290 , the question was whether laws which provide that certain laws could be applied to certain areas with such modifications as the executive authority deemed fit to make, were constitutionally valid. There was specific authorisation to apply laws with modifications which the executive authority may deem fit to make. The Supreme Court held that such authorisation will not extend to repealing laws already in force in the area and substituting other laws with or without modifications. Further, the modification in law to be applied could not effect any essential change in the law and alter its policy. Where delegation authorises the making of a radical change in the policy of the law to be applied, such an authority could not be delegated and its delegation was ultra vires. These authorities establish that even if the Legislature wants, it cannot delegate power to a subordinate authority to alter the policy laid down by the Legislature. Here the Legislature enunciated its policy of conferring the status and rights of a sirdar upon an asami if a suit for his ejectment is not brought within the prescribed period. The power to make rules to carry into effect these provisions could not possibly be held to include a power to alter this basic and fundamental policy of the Legislature. The rule-making power could not hence extend to nullifying the effect of Section 204 of the Act.

19. The amendments made in 1954 being in regard to a matter of procedure like prescribing the period of limitation for a suit may, under the general principles of construction, be retrospective in operation, inasmuch as they may apply to suits filed after their coming into force although the cause of action for such suits may have accrued prior to that date. But they cannot be recognised to have a retrospective operation which would divest persons of rights vested in them under Section 204. If in a given case the cause of action for a suit forejectment of an asami has perished because of the lapse of the prescribed period of limitation, with the consequence that the asami had become a sirdar, the amendments made in 1954 could not revive such a cause of action. If by any process of reasoning the amendment is construed as having such a retrospective effect, it will be ultra vires the rule-making power.

20. Under the unamended rule the period of limitation was one year and the time commenced to run when the cause of action arose. There was divergence of opinion in this Court as to when does cause of action arise. In Unchan Singh's case, 1962 All LI 229 (supra) it was assumed without discussion that where the three year period of sub-tenant expires before the date of vesting the cause of action would arise on the date of vesting and a suit for his ejectment as an asami would become barred by time on 1st July, 1954. In Zahid Ali Khan v. Saktey, 1968 RD 367, a learned single Judge held that a tenure which is held from year to year must first be determined by the land-holder in order to be furnished with a cause of action for a suit for ejectment. By mere inaction, i.e., by not entering into a fresh agreement of tenancy on the expiry of any particular year, it cannot be said that the land-holder gets cause of action as soon as the year expires. In Ghazi v. Waqf Alalaulad, 1960 All WR (HC) 602, a Division Bench held that where a lease in favour of an asami is from year to year it cannot be said that the cause of action arises at the end of every year. A person holding the land year after year has a right to continue in possession till the lease is determined. For so long as there is no determination of the lease, the lessee can remain in possession, and hence no cause of action can be deemed to have arisen for the ejectment of the person in possession.

21. The decision of the learned single Judge in Zahid Ali's case, 1968 RD 368, was considered by a Division Bench in Smt. Vidyawati v. Board of Revenue, 1972 RD 203 and was overruled. The Bench held that though under the Transfer of Property Act a notice under Section 106 was necessary to terminate a tenancy before a suit for eviction of a tenant was filed, there is no corresponding provision in the Zamindari Abolition Act. Section 190 of the Zamindari Abolition Act lays down when the interest of an asami shall be extinguished. It does not provide that the interest of an asami can be extinguished by giving of a notice by the land-holder. On the other hand, Clause (e) provides that the interest of an asami shall be extinguished when he is ejected under the provisions of this Act. Till he is evicted by executing a decree obtained in a suit filed under Section 202, he continues to be an asami. It is, therefore, manifest that the giving of a notice cannot at all affect the rights of an asami and cannot put an end to the asami tenure. It washeld that it was not necessary for the landholder to give any notice to the asami determining his right before a suit under Section 202 can be filed. In this case the contrary Division Bench decision in Ghazi v. Waqf Alalaulad, 1960 All WR (HC) 602, was not noticed.

22. It is true that the Zamindari Abolition Act does not specifically prescribe a notice prior to the institution of a suit for ejectment of an asami. Section 184 of the Zamindari Abolition Act, however, provides that an asami may surrender the whole of his holding by giving a notice in writing to the Land Management Committee or the land-holder, as the case may be, intimating his intention- to do so and by giving up possession thereof. Section 82 of the U. P. Tenancy Act, 1939, made a similar provision for surrender by tenants. From this a corresponding duty in the land-holder not to evict without notice can be inferred on the line of reasoning that appealed to a Bench of the Calcutta High Court m Chaturi Singh V. Makund Lall, (1881) ILR 7 Cal 710. Section 20 of the Bengal Act 8 of 1869 provided that ryots cannot relinquish without a notice to the landlord. The Bench held:

'In our opinion it follows from this, that a landlord cannot evict such a tenant without a notice; because, in order to justify an eviction without a notice, it must be held that the tenancy, unless renewed, comes to an end at the end of the year. But if that Were so the ryot could throw up the land without a notice.

The relation of landlord and tenant cannot be said to have ceased so far as the landlord's right to evict is concerned, but not with reference to the ryot's right to relinquish. But it seems to us, that the relationship does not come to an end at the expiration of each year, without some act on the part of the landlord and tenant jointly, or of either.'

23. This controversy was set at rest by a Full Bench of this Court in 1972 RD 266. S. N. Dwivedi, J. referring to entry 25 (ii) of appendix III, held that where the sub-tenant holds land from year to year the cause of action will arise only when the land-holder has determined the lease. In such a case time would run from the day on Which the lease ceases to have effect. If no suit is instituted within limitation, the asami would become a sirdar. Thus a suit for the ejectment of an asami holding from year to year will not become barred by time on 1st July, 1954, unless the land-holder has determined the tenancy more than one year prior to that date.

24. In the result, the answers to the question are:---

(1) A person declared to be sub-tenant under the proviso to sub-section (3) of Section 27 of the U. P. Tenancy (Amendment) Act, 1947, holds the land from year to year.

(2) The amendments introduced to serial No. 25 (ii) of the third Appendix to theZamindari Abolition Rules by the notification dated 20tb November, 1954, are not retrospective in operation, so as to defeat vested rights.

R.B. Misra, J.

I agree.

K. N. Seth, J.

I agree.

A. Banerji, J.

I agree.

Hari Swarup, J.

25-28. The two questions which have been referred to the Full Bench for opinion are:

1. Whether persons declared to be subtenants under the proviso to Sub-section (3) of Section 27 of the U. P. Tenancy (Amendment) Act, 1947, hold the land from year to year or for a fixed period within the meaning of Section 202 (b) of the U. P. Zamindari Abolition and Land Reforms Act?

2. Whether the amendments introduced to serial No. 25 (2) of the third appendix of the U. P. Zamindari Abolition and Land Reforms Rules by the notification dated 16th November 1954 were retrospective in operation?

Under the original Section 171 of the U.P. Tenancy Act if a tenant transferred or sublet the whole or any portion of his holding otherwise than in accordance with the provisions of the Act and the transferee or sub-lessee entered into possession in pursuance of the transfer or sub-lease, both the tenants and the person let in were liable to ejectment from the area so transferred or sublet. The respondent in the present case was an occupancy tenant and had let out the land to some one and was therefore on the suit of the Zamindar ejected from the land in dispute. This happened in 1944. The present appellant was then inducted as a tenant by the Zamindar and he remained in occupation.

29. The U. P. Tenancy Act was subsequently amended in 1947 by the U. P. Tenancy (Amendment) Act, 1947. The relevant section is Section 27 of this Act. The relevant portion of the section runs as follows:

'Reinstatement of certain ejected tenants--

(1) If, on or after the first day of January 1940, any person was ejected from Ms holding or any part thereof:--

(a) .....................

(b) under Section 171 of the said Act, otherwise than on the ground of an illegal transfer by way of sale or gift, he may apply, within six months from the date' of the commencement of this Act, to the Court which passed the decree for his ejectment, for reinstatement, in such holding or part thereof, as the case may be.' Sub-sections (3) and (5) of Section 27 run as follows:

'(3) On receipt of an application under Sub-section (2) the Court shall give notice to the landholder and to the tenant, if any, in possession of the whole or part of such holding. After making such enquiry as may be necessary, if the Court is satisfied that the applicant was so ejected or dispossessed,it shall order that the applicant be reinstated in such holding or part thereof, as the case may be, and that any other person in possession of it to be ejected therefrom:

Provided that if such holding or any part thereof is in the possession of any person to whom the landholder had let it out before the first day of September, 1946, such person not being a relation, dependant or-servant of the landholder, the Court instead of ordering the ejectment of such person shall, notwithstanding the provisions of any law for the time being in force, declare him to be the sub-tenant of the applicant in respect of such holding or such part. The person so declared as a sub-tenant shall not be liable to ejectment until after the expiry of three years from the date of the declaration............

(5) On reinstatement, the rights and liabilities of the applicant existing on the date of his ejectment or dispossession in respect of the holding or any part thereof from which he was ejected or dispossessed, shall revive subject to the proviso to sub-section (3).'

The ejected tenant filed an application under Section 27 (1) for his reinstatement and the Court gave him the declaration about reinstatement, but in view of the proviso to Sub-section (3) of Section 27 declared the appellant as sub-tenant of the respondent and did not pass the order ejecting him.

30. Under the U. P. Zamindari Abolition and Land Reforms Act (hereinafter called the Act), the original tenant who had been reinstated by the order under Section 27 became the Sirdar by virtue of Section 19 of the Act and the sub-tenant became Asami.

Section 21 (c) of the Act says: 'Notwithstanding anything contained in this Act, every person who, on the date immediately preceding the date of vesting, occupied or held land as--

(c) a sub-tenant referred in the proviso to Sub-section (3) of Section 27 of the United Provinces (Tenancy Amendment) Act, 1947,

Shall be deemed to be an asami thereof.' The relevant portion of Section 133 states:

'Every person belonging to any of the following classes shall be called an asami and shall have all the rights and be subject to all the liabilities conferred or imposed upon asamis by or under this Act, namely,

(a) every person who, on the date immediately preceding the date of vesting, occupied or held land--

(iii) as a subtenant under the provision of Sub-section (3) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947......'

Subsequently, Clause (a) of Section 133 was amended to read as follows:

'133. (a) every person who, as a consequence of the acquisition of estate, becomes an asami under Sections 11, 13 or 21...'

The relevant portion of Section 202 of the Act provided for the ejectment of an asami. It said:

'Without prejudice to the provisions of Section 338 an asami shall be liable to ejectment from his holding on the suit of the landholder, on the ground or grounds--

(b) that he belongs to any of the classes mentioned in sub-clauses (i), (ii), (iii), (vi) and (vii) of Clause (a) or in Clause (c) of See. 133 and that he holds the land from year to year, or for a period which has expired or will expire before the end of the current agricultural year.'

Sub-section (b) of Section 202 was subsequently amended and was substituted by:

'that he belongs to any of the classes mentioned in Clauses (a), (b), (c), (e) and (g) of Sub-section (1) of Section 21 and that he holds the land from year to year, or for a period which has expired ox will expire before the end of the current agricultural year.'

Section 204 of the Act provided for the consequences of not filing a suit for the ejectment of the asami. It provided:

'If a suit for ejectment of an asami, to whom any of the Sub-clauses (i) to (v) of Clause (a) or Clause (b) of Section 133 applies, is not instituted, or a decree obtained in such suit is not executed, within the period of limitation prescribed therefor, the asami shall, on the expiry of the period, become a Sirdar of the land held by him.'

Consequent to the amendment of Section 202, Section 204 was also amended in 1958 by making it read as under:

'If a suit for ejectment of an asami, to whom any of the Clauses (a), (b), (e) or (d) of Section 21 or Section 11 applies, is not instituted, or a decree obtained in such suit is not executed, within the period of limitation prescribed therefor, the Asami shall, on the expiry of the period, become a Sirdar of the land held by him.' Rule 338 provided that suits, applications and other proceedings specified in third appendix shall be instituted within the time specified therein for them respectively. Serial No. 25 (2) in appendix 3 deals with suits under Section 202 of the Act and provided one year's limitation for the institution of a suit for ejectmeut of an Asami. The time was to run from the date on which the cause of action arose under Section 202 (b). This rule was subsequently amended by a notification dated October 8, 1952 and the entry was changed as under:

'From the date of vesting where the cause of action arose under Section 202 (b) before the date of vesting; and in all other cases, from the date on which cause of action arose.'

Subsequently, in 1954, serial No. 25 was again amended and instead of the period of limitation being one year it was mentionedas 'none'. It is in view of the provisions mentioned above that the two questions have to be considered.

31. Section 171 of the U. P. Tenancy Act was impliedly amended by the U. P. Tenancy (Amendment) Act of 1947 and Section 27 was made applicable to all transactions which took place on or after the first day of January 1940. The effect was to put back the ejected tenant in possession. In case, however, some person had been inducted by the Zamindar in accordance with law as it then stood as a tenant, he was permitted to continue for three years from the date of the order passed on the application moved by the ejected tenant under Section 27 of the Amendment Act. If the person so inducted was the relation, etc. of the Zamindar, he had to be ejected immediately. A sort of statutory tenancy was created by the proviso to Section 23 and the status of the occupant was declared as subtenant. In the ordinary course, he would have been liable to ejectment in the same proceedings because a tenant had a right under the U. P. Tenancy Act to eject the sub-tenant without any notice. Through the proviso, however, a statutory protection was given to a person declared sub-tenant to continue in possession for three years. In all other respects, the rights of the tenant who had been ejected were revived. He became entitled to get rent from the occupant at the rate prescribed by the statute. The occupant did not get any interest in the property occupied by him except the right of not being liable to ejectment for three years from the date of declaration.

32. The contractual tenancy in favour of the occupant created by the Zamindar was put an end to by an order reinstating the original tenant. The occupant was thus left with no rights under that contract. For the protection of the occupant, the proviso imposed a prohibition against the recovery of possession of the holding for a fixed period of three years. As observed in 'Anand Niwas v. Anand Jee' : [1964]4SCR892 :

'A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a 'statutory tenant'. Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after (he determination of the contractual tenancy is personal; it is not capable of being transferred or assigned, and devolves on his death only in the manner provided in the statute. The right of a lessee from a landlord on the other hand is an estate or interest in thepremises and in the absence of a contract to the contrary is transferable and the premises may be sublet by him. But with the determination of the lease, unless the tenant acquires the right of a tenant holding over, by acceptance of rent or by assent, to his continuing in possession by the landlord, the terms and conditions of the lease are extinguished, and the rights of such a person remaining in possession are governed by the statute alone.'

It is thus clear that the occupant, though called a sub-tenant, became only a 'statutory tenant' with the rights given in the proviso. The declaration that he is the sub-tenant is only for the period of three years during which his sub-tenancy continues under the proviso, and the terms under which he holds the sub-tenancy are given in the proviso itself.

35. Section 295-A added by U. P. Tenancy (Amendment) Act of 1947 provides: 'Notwithstanding any contract to the contrary or anything contained in this Act or any other law for the time being in force, every person, who, on the date of the commencement of the United Provinces Tenancy (Amendment) Act, 1947, is a sub-tenant shall, subject to the provisions of the proviso to Sub-section (3) of Section 27 of the United Provinces Tenancy (Amendment) Act, 1947, be entitled to retain possession of his holding for a period of five years from that date, and for this period nothing in Sub-section (2) of Section 44 or Section 171 shall render the landholder of such sub-tenant liable to ejectment under the provisions of Section 171:

Provided that nothing in this section shall authorise a sub-tenant of a person who belongs to one of the classes mentioned in Section 41 to retain possession of his holding after the disability of such person has ceased.'

Reading Section 295-A with Section 27 shows that a person who was holding as sub-tenant on the basis of a contract was permuted to continue in possession for a period of five years, but a person who was made a statutory tenant by virtue of proviso to Sub-section (3) of Section 27 was given a right of occupancy only for three years, in either case, the right of the occupant was only to remain in occupation as sub-tenant for a fixed period.

There is no provision in the U. P. Tenancy (Amendment) Act or in the parent Act providing for conversion of the statutory tenancy automatically into a contractual tenancy from year to year or for any other period. Hence, merely by continuing in possession after the expiry of three years a person declared as sub-tenant under the proviso cannot acquire any further sub-tenancy.

34. The right to eject the occupant was postponed by the proviso for a period of three years. As soon as the period of three years expired, the right to eject revived. This is the date on which the originaltenant got the right to institute proceedings for his ejectment. It would be this date on which the occupation of the declared subtenant will become without authority of law, that the cause of action for his ejectment will arise. If the tenant had instituted proceedings for his ejectment before the vesting under the U. P. Zamindari Abolition and Land Reforms Act, the cause of action would have been deemed to have arisen on the date the bar created by the proviso to Section 27 (3) had ceased to be operative. As there was no provision in the U. P. Tenancy Act, for giving a prior notice for initiating proceedings for ejectment of a sub-tenant or for termination of sub-tenancy, there could be no other date creating the cause of action for proceedings to eject such a sub-tenant. The cause of action for ejectment of a subtenant under the proviso to Sub-section (3) must therefore be deemed to arise immediately after the expiry of three years from the date of declaration under the proviso.

35. The U. P. Znmindari Abolition and Land Reforms Act had created new rights and made also the persons who had been declared sub-tenants under the afore-discussed proviso, Asamis of the tenants who became Sirdars under Section 19 of the Act. But the right to eject such an Asami was continued. The sub-tenant was given the new status of Asami, even though the cause of action for his ejectment may have arisen even prior to the enactment. This is clear from Clause (b) of Section 202 of the Act. The right to eject an Asami was confined by Section 200 of the Act to the manner provided in Section 202 and no suit or proceedings were permitted to be Initiated by a Sirdar for ejectment of an Asami by virtue of his right to eject him under the U, P. Tenancy Act. Clause (b) of Section 202 gave the power to eject the Asami under three conditions:

1. That he held land from year to year.

2. That he held land for a period which had expired,

3. That he held land for a period that would expire before the current agricultural year.

If the period of three years had expired prior to the enforcement of the Act, the Asami was made liable to ejectment within the period of one year from the date on which the cause of action arose under Section 202 (b). The limitation as it stood at the commencement of the Act and the Rules was thus to run from the date of the cause of action, i.e. the date on which 'he period of three years had expired. This had given different periods of limitation for institution of suits under Section 202 (b) even though fresh rights of Asami, Sirdar and Bhumidhar had been created by the Act. To remove this discrepancy and to make the law operate evenly, the entry No. 25 in the Appendix III of the Rules was amended in the manner indicated aboveand the limitation in all cases where the cause of action had arisen prior to the enforcement of the Act, was made one year from the date of vesting. This was made only in respect of those matters where the cause of action had arisen for a suit under Section 202 (b) before the date of vesting. In other respects the date on which the cause of action arose was made the point of time for the commencement of limitation, The amendment had the effect of giving a fresh start to limitation and of arresting the limitation which had already begun to run prior to vesting. After the year from the date of vesting had come to an end, in all cases in which suits had not been instituted the Asamis bad gained higher rights by virtue of the provisions of Section 204 of the Act. There thus remained no question of institution of any suit under Section 202 (b) against those Asamis the period of whose lease had expired before the date of vesting and cause of action had arisen before that date. This clause, therefore, became redundant and it was for this reason that it was later on dropped and the Rules gave an unlimited period of limitation to Sirdars for filing suits against Asamis.

36. The question of the amendment being applied retrospectively becomes immaterial in view of the provisions of Section 204 in respect of those sub-tenants for whom cause of action had already arisen prior to the date of vesting. After one year of vesting they acquired Sirdari rights and the Sirdars had lost their rights. The circumstances changed so as to leave no scope for tiling of any suit for ejectment to those Asamis for whom the cause of action had arisen prior to the date of vesting. The Legislature had already by enacting Section 204 and fixing a one year's limitation conferred higher rights on Asamis and these rights cannot be wiped off by an amendment of the Rules regarding limitation for institution of suits.

37. Accordingly, with respect to question No. I, I come to the conclusion that the person declared to be sub-tenant under proviso to Sub-section (3) of Section 27 of the Act holds the land for a fixed period within the meaning of Section 202 (b) of the Act and not from year to year. I give my opinion accordingly.

38. As regards the second question, my opinion is that the amendment of the entry at serial No. 25 of the Third Appendix to the U. P. Zamindari Abolition and Land Reforms Rules by the notification dated 16-11-54 does not authorise the institution of a suit for ejectment of a sub-tenant declared under Section 27 of the U. P. Tenancy (Amendment) Act, 1947 in whose case declaration had been made more than three years prior to the date of vesting. BY THE COURT

39. The questions referred to this Full Bench are answered as follows:--

Question No. 1:--

A person declared to be sub-tenant under the proviso to Sub-section (3) of Section 27 of the U. P. Tenancy (Amendment) Act, 1947, holds the land from year to year. Question No. 2:--

The amendments introduced to serial No. 25 (ii) of the third Appendix to the Zamindari Abolition Rules by the notification dated 20th November, 1954, are not retrospective in operation so as to defeat vested rights.


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