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Asharfi Lal Vs. Board of Revenue, U.P. at Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal Nos. 757 and 758 of 1969
Judge
Reported inAIR1971All465
ActsTenancy Laws; Uttar Pradesh Tenancy Act, 1939 - Sections 47(1) and 47(4); Uttar Pradesh Urban Area Zamindari Abolition and Land Reforms Act, 1957 - Sections 2(1) and 2(9)
AppellantAsharfi Lal
RespondentBoard of Revenue, U.P. at Allahabad and ors.
Appellant AdvocateB.B.P. Singh, Adv.
Respondent AdvocateU.K. Misra, Adv. and ;Standing Counsel
Excerpt:
.....- rights of tenant extinguished - possession of sub-tenant cannot be said to be in capacity of sub-tenant of tenant. - - thus the second condition is not satisfied in this case, and the appellant was not an 'occupier'.16. it was next contended for the appellant that the relevant date for the purposes of section 2 (1) (e) is 8th september, 1958 when the notification under section 3 of the act was made. 17. we, however, fail to appreciate the contention; the preamble of a statute has been said to be a good means of finding out its meaning and, as it were, a key to the understanding of it. --if any doubt arises from the terms employed by the legislature, it is always a safe means of collecting the intention to call in aid the ground and the cause of enacting the statute, and to have..........appreciate the contention; and the reason is obvious. section 2 (1) (a) to (d) contemplates urban area in possession of an intermediary as sir and khudkasht or held as grove or in personal cultivation of various kinds of tenants; whereas section 2 (1) (e) contemplates urban area held or occupied by an 'occupier'. an 'occupier' in accordance with section 2 (9), as we have seen is, a person in occupation 'otherwise than as subtenant' from or before the first day of july. 1954. the relevant date, therefore, for purposes of section 2 (9) of the act, is 'from or before the first day of july, 1954.' we get a clue to that effect even from the explanation addedto section 2 (9) of the act. 'land' used in the definition of the term 'occupier' in section 2 (9) of the act should either be khudkasht.....
Judgment:

R.B. Misra, J.

1. These two special appeals are directed against a common judgment of a learned Single Judge of this Court, dated 23rd May, 1969 dismissing the appellants' writ petition No. 1575 of 1968 and allowing in part his writ petition No. 3602 of 1968.

2. The dispute in the present case relates to certain plots situated within the municipal limits of Roorkee and owned by Ram Ratan Lal (respondent No. 4), Bishan Lal and Jog Prasad were the tenants of these plots in the year 1945. It appears that they, on 28th August, 1945, executed a sub-lease in respect of the plots in question in favour of Asharfi Lal appellant for a fixed period of five years. Later on they (Bishan Lal and Jog Prasad) the tenants-in-chief surrendered their tenancy rights in favour of respondent No. 4, the landlord, on the 24th of March, 1958. Thereupon, on 28th March, 1958, respondent No. 4 instituted a suit under Section 180 of the U. P. Tenancy Act against the appellant, treating him to be a trespasser as a result of the surrender made by the tenants-in-chief on 24th March, 1958.

3. The suit was contested by the appellant on grounds, inter alia, that the surrender made by the tenants-in-chief was not a valid one and that, in any case, he continued to be a subtenant from year to year. He further alleged that he was a tenant from one Teg Singh who, according to him, was the owner of the plots in question.

4. It appears that during the pendency of the suit, the U. P. Urban Area Zamindari Abolition and Land Reforms Act (IX of 1957) (hereinafter referred to as the Act) came into force. In exercise of the powers conferred under Section 3 of the Act the State Government issued a notification on 8th September, 1958 for the demarcation of the agricultural area with a view to acquisition, under the provisions of the Act, of the rights, title and interests of the intermediaries in urban areas. After the demarcation proceedings a notification under Section 8 of the Act was also published on 19th June, 1961 notifying that with effect from 1st July, 1961 that area demarcated as 'agricultural area' within the municipal limits of Roorkee would stand transferred and vested in the State. It is the common case of the parties that the plots in question were not demarcated as 'agricultural -area'; and it appears that at the appropriate stage no objection was raised against the proposals made by the Demarcation officer and the proposals made by him became final. Subsequently, however, the appellant moved an application before the Commissioner under Section 6 of the Act for declaring the plots in question as Agricultural Area. The application was however, dismissed by the Additional Commissioner on 10th January, 1967, holding that the plots were not 'Agricultural area' as the appellant was neither a sub-tenant nor an occupier within the meaning of the Act.

5. On 1st September, 1965 the appellant also moved an application under Rule 39 of the U. P. Urban Area Zamindari Abolition and Land Reforms Rules in the suit under Section 180 of the U. P. Tenancy Act, for abating the suit. This application was contested by respondent No. 4, but the trial court allowed the application of the appellant and ordered abatement of the suit on the 17th of November, 1965. Against this order of abatement respondent No. 4 filed a revision application, and the additional Commissioner, by his order dated 2nd June, 1966, made a reference to the Board of Revenue for allowing the revision and holding that the plots in dispute did not constitute 'Agricultural area' and that Rules 38 and 39 of the U. P. Urban Area Zamindari Abolition and Land Reforms Rules had no application. The appellant, in turn, filed an appeal against the order of the Commissioner dated 10th January, 1967 dismissing his application under Section 6 of the Act.

6. The Board of Revenue heard and disposed of both the reference and the appeal by a common judgment dated5th March. 1968, dismissing the appellant's appeal (No. 1 of 1966-67) and allowing the Reference (No. 2 of 1966-67) in respect of the Revision Application of Respondent No. 4.

7. The appellant, thereupon filed Civil Miscellaneous writ petition No. 1575 of 1968 against the order of the Board of Revenue in the demarcation proceeding, and Civil Miscellaneous Writ Petition No. 3602 of 1968 against the order of the Board of Revenue in the suit for ejectment under Section 180 of the U. P. Tenancy Act. These two writ petitions also were disposed of by the learned Single Judge by a common judgment, who allowed writ petition No. 3602 of 1968 in part and dismissed the writ Petition No. 1575 of 1968. Aggrieved by this decision of the learned single Judge the appellant has preferred these two connected Special Appeals.

8. Sri G. N. Verma, appearing for the appellant, contended that the learned Single Judge has committed an error apparent on the face of the record in holding that the plots in dispute did not constitute 'agricultural area'.

9. The determination of this question hinges upon the definition of 'agricultural area' as contained in Section 2 of the Act. Section 2 of the Act, in so far as material reads thus:--

'Section 2. In this Act unless there is anything repugnant in the subject or context-

(1) 'agricultural area' as respect any urban area means an area which, with reference to such date as the State Government may notify in that behalf, is-

(a) in the possession of or held or deemed to be held by an intermediary as Sir, Khudkasht or an intermediary's grove;

(b) ... ... ... ... ...

(c) included in the holding of

(i) ... ... ... ... ...

(ii) ... ... ... ... ...

(iii) ... ... ... ... ...

(iv) ... ... ... ... .

(v) ... ... ... ... ...

(vi) ... ... ... ... ...

(vii) ... ... ... ... ...

(viii) ... ... ... ... ...

(ix) a sub-tenant referred to In Sub-section (4) of Section 47 of the U. P. Tenancy Act, 1839, or.

(x) ... ... ... ... ...

and is used by the holder thereof for purposes of agriculture or horticulture

Provided ... ... ... ... ...

(d) ... ... ... ... ...

(e) held or occupied by an occupier.

Explanation--An area, being part of the holding of a tenant shall not be deemed to have ceased to be agricultural area by reason merely that it has not been used, during the seven years preceding the commencement of this Act for raising crops or other agricultural produce.

(2) to (8) ... ... ... ... ...

(9) 'occupier' with reference to an agricultural area means the person in cultivatory possession of any land in such area from or before the first day of July, 1954, otherwise than as an intermediary, lessee, sub-lessee, tenant, grantee, grove-holder, sub-tenant or mortgagee in possession of such land;

Explanation--'Land' for purposes of this clause means land which, on or before July 1, 1954, was khudkasht of an intermediary or which on the said date was included in the holding of a person referred to in Sub-clauses (i) to (x) of Clause (c) and such previous rights as such in it ceased or otherwise determined on the above date.

(10) to (17) ... ... ... ... ...'

The appellant sought to bring his case either within Section 2 (1) (c) or Section 2 (1) (e) of the Act: under Section 2 (1) (c), because he was in occupation of the land as a sub-tenant, and under Section 2 (1) (e) because he was in possession as an 'occupier', on the relevant date, i. e., on 8th September. 1958, the date of notification under Section 3 (1) of the Act.

10. Sri Verma's contention is that, in spite of the extinction of the right of the tenants in chief by surrender the appellant continued in possession and that his possession was as a sub-tenant by virtue of Section 47 (4) of the U. P. Tenancy Act.

11. Section 47 of the U. P. Tenancy Act, 1939, pertinently quoted, read thus:--

'Section 47:-- (1) Except as otherwise provided in Sub-section (3) and Sub-section (4), the extinction of the interest of a tenant, other than a permanent tenure-holder or a fixed rate tenant, shall operate to extinguish the interest, of any tenant holding under him.

(2) .. ... ... . ...

(3) ... .. ... ...

(4) Where at the time of the extinction by surrender or abandonment or by death without any heir entitled to interest such interest, of the interest in a holding of e tenant other than a permanent tenure holder or fixed-rate tenant, there is in existence a valid sublease of: the whole or of a portion of the holding executed on or after the first day of January, 1902, all covenants, binding and enforceable as between the tenant and the sub-tenant shall, subject to the provisions of Sub-section (5), be binding and enforceableas between the tenant's landholder and the sub-tenant for the remainder of the term of the sub-lease or for five years, whichever period may be the shorter.

(5)-(6) ... ... ... ... ...'

Sub-section (1) of Section 47 of the U. P. Tenancy Act provides for the extinction of the rights and interests of the sub-tenant on the extinction of the rights of the tenant-in-chief. Sub-section (4) of Section 47 is an exception. It contemplates that all covenants binding and enforceable between the tenant and sub-tenant in respect of an existing valid sub-lease shall be binding and enforceable between the tenant's landholder and the sub-tenant for the remainder of the term of the sub-lease or for five years, whichever period may be shorter. This only means that the subtenant in such a case may remain in possession for the period contemplated in Sub-section (4) of Section 47 of the U. P. Tenancy Act.

12. Now, the Question arises about the status of such a person. Does he continue as a sub-tenant? This question was the subject-matter of consideration in the case of Birendra Pratap Singh v. Gulwant Singh : [1968]2SCR870 . It was laid down by the Supreme Court that the possession of the sublessee, after extinction of the rights of the tenant-in-chief, could no longer be said to be in the capacity of sub-tenant of the tenant-in-chief. Section 47 (4) only authorised him to remain in possession for the unexpired period of the sub-lease or for five years, which ever was less.

13. Sri Gyanendra Nath Verma alternatively argued that the plots in dispute would, in view of Section 2 (1) (e) of the Act, constitute agricultural area because he held and occupied them as an 'occupier.'

14. The term 'occupier' has been defined in Section 2 (9) of the Act, which has already been quoted. According to it, an 'occupier' with reference to an agricultural area' is a person in cultivatory possession of any land in such area from or before the first day of July, 1954, otherwise than is an intermediary lessee, sub-lessee tenant, grantee grove-holdcr, sub-tenant or mortgagee. Sri Verma wanted us to interpret the word 'occupiar' used in Clause (e) of Sub-section (1) of Section 2 of the Act independently of the definition thereof as contained in Sub-section (9) of Section 2 of the Act. We see no justification for such a construction. If the term 'occupier' is a defined term, there is no reason way the same term used in Section 2 (1) (e) of the Act be given a different meaning from the one contemplated by the definition of 'occupier' as given in Section 2 (9) of the Act. Viewed in that light, an 'occupier' has to satisfy (i) that he was in cultivatory possession of the land in question from or before the first day of July, 1954 (ii) that he was in possession otherwise than as an intermediary, lessee, sub-lessee, tenant, grantee, grove-holder, sub-tenant or mortgagee in possession of such land.

15. As indicated above, the appellant came in possession of the land in pursuance of the sub-lease in his favour on the 28th of August, 1945. So the first condition is fulfilled in this case. We may now examine whether his possession was 'otherwise than as a sub-tenant'. The sub-tenancy of the appellant was only for a period of five years. Commencing from 28th August 1945, it came to an end on the surrender of the land by the tenants-in-chief in favour of the landholder on the 24th of March, 1958. The five years' sublease executed on 28th August, 1945 had expired on 27th August, 1950. As the appellant continued in possession, he would be deemed to be a sub-tenant from year to year. So prior to 24-3-1958, when the tenants-in-chief surrendered the holding in favour of the landholder, and from or before the first day of July, 1954, the appellant was a subtenant. Thus the second condition is not satisfied in this case, and the appellant was not an 'occupier'.

16. It was next contended for the appellant that the relevant date for the purposes of Section 2 (1) (e) is 8th September, 1958 when the notification under Section 3 of the Act was made. The appellant should, therefore, be a sub-tenant or occupier on that date, and that if we interpret the word 'occupier' used in Section 2 (1) (e) in accordance with its definition as contained in Section 2 (9), it would create an anomaly inasmuch as in that case we would have to accept a different date namely, the first of July, 1954, as the relevant date.

17. We, however, fail to appreciate the contention; and the reason is obvious. Section 2 (1) (a) to (d) contemplates urban area in possession of an intermediary as Sir and Khudkasht or held as grove or in personal cultivation of various kinds of tenants; whereas Section 2 (1) (e) contemplates urban area held or occupied by an 'occupier'. An 'Occupier' in accordance with Section 2 (9), as we have seen is, a person in occupation 'otherwise than as subtenant' from or before the first day of July. 1954. The relevant date, therefore, for purposes of Section 2 (9) of the Act, is 'from or before the first day of July, 1954.' We get a clue to that effect even from the explanation addedto Section 2 (9) of the Act. 'Land' used in the definition of the term 'occupier' in Section 2 (9) of the Act should either be Khudkasht of an intermediary or which was once included in the holding of a person referred to in Sub-clauses (i) to (x) of Clause (c) of Section 2 (1) of the Act, and such previous rights as such in it ceased or determined on the above date (i.e., on or prior to first July, 1945). The explanation, to our mind, leaves no room for doubt that for the purposes of Section 2 (1) (e), the appellant had to be an 'occupier' as defined in Section 2 (9) of the Act.

18. Sri Verma then contended that the preamble of the Act indicates that the Act was meant to provide for the abolition of zamindari system In agricultural land situated within urban areas in Uttar Pradesh and for the acquisition of rights, title and interest of the intermediaries between the tiller of the soil and the State in such areas and for the introduction of land reform therein. Therefore, according to him, the interpretation of Section 2 (1) (e) should be in conformity with the intention of the Legislature. In support of his contention the learned counsel relied upon : 1953CriLJ525 , Darshan Singh Balwant Singh v. State of Punjab. It was laid down there thus:--

'It is a cardinal rule of interpretation that the language used by the Legislature is a true depository of the legislative intent, and that words and phrases occurring in a statute are to be taken not in an isolated or detatched manner dissociated from the context, but are to be read together and constructed in the light of the purpose and object of the Act itself.'

The learned counsel also relied upon : [1956]29ITR349(SC) , T. K. Musaliar v. Venkatachalam, wherein it was laid down:--

'In order to ascertain the scope and purpose of the impugned section reference must first be made to the Act itself. The preamble of a statute has been said to be a good means of finding out its meaning and, as it were, a key to the understanding of it.'

In AIR 1942 FC 17, Bhola Prasad v. Emperor, relied upon by the learned counsel, it was laid down thus:--

'If any doubt arises from the terms employed by the Legislature, it is always a safe means of collecting the intention to call in aid the ground and the cause of enacting the statute, and to have recourse to the preamble, which Is a 'key to open the mind of the makers of the Act and the mischief which they intended to redress'.'

19. There is no doubt that the preamble of a statute is an admissibleaid to construction. But it is well settled that the preamble to a Statute can neither expand nor control the scope of application of the enacting clause when the latter is clear and explicit. It is true that it has sometimes been said that a preamble is a key to the intention of the Legislature. But that rule applies only when the language of the enacting portion of any Act of the legislature is ambiguous and doubtful or produces in its ordinary meaning any absurdity or unreasonableness. The rule is not applicable where the words of the enactment are quite clear and no doubt exists. The terms of a preamble may be resorted to in two classes of cases: (i) where the text of the statute is susceptible of different constructions; and (ii) where very general language is used in an enactment which evidently must have been intended to have some limitation put upon it. The preamble may be used to indicate to what particular instances the enactment is intended to apply.

20. It was laid down by Mudholkar, J., in : [1962]1SCR44 , Burrakur Coal Co. v. Union of India as follows:--

'It is one of the cardinal principles of construction that where the language of an Act is clear, the preamble must be disregarded though, where the object or meaning of an enactment is not clear, the preamble may be resorted to to explain it. Again, where very general language is used in an enactment which, it is clear, must be intended to have a limited application the preamble may be used to indicate to what particular instances, the enactment is intended to apply. We cannot, therefore, start with the preamble for construing the provisions of an Act, though we would be justified in resorting to it, nay, we will be required to do so, if we find that the language used by Parliament is ambiguous or is too general though in point of fact Parliament intended that it should have a limited application.'

Thus, where the language of a section is clear, it is not at all necessary to refer to the preamble. In the present case there is no ambiguity or any inconsistency in construing the expression 'occupier' used in Section 2 (1) (e) with the help of the definition thereof given in Section 2 (9) read with the Explanation attached thereto. There is, therefore, no necessity to refer to the preamble in the present case.

21. This leads us to the last argument advanced by Sri Verma. He contended that if the Board had unnecessarily remanded the case for decision of a point on which there is no dispute between the parties, the order of the Board should have been quashed, but then the learned Single Judge should have stopped there and should not have gone further to decide the suit himself. This could have been done by the trial court after a consideration of the evidence. The learned counsel for the respondent could not seriously refute this argument. We find considerable force in this contention of Sri Verma.

22. For the reasons given above we dismiss Special Appeal No. 758 of 1969, but allow Special Appeal No. 757 of 1969 and modify the order of the learned Single Judge only so far as it relates to Writ No. 3602 of 1968 and quash the order of the Board of Revenue passed in Reference No. 2 of 1966-67. The Board of Revenue will now remand the case to the trial court for decision on merits. In the circumstances of the case, however, the parties in both the Special Appeals shall bear their own costs.


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