Achhru Ram, J.
1. This second appeal has arisen out of the suit brought by one Mathra Das, a resident of Batala, against the Punjab Province through the Collector of Gurdaspur for a declaration to the effect that he was in possession as a tenant of ahatas Nos. 27 and 28 situate in the Bairuni Mandi (the outer market) of Batala and for issue of a perpetual injunction to the defendant restraining it from ejecting the plaintiff from those ahatas.
2. It is common ground between the parties that two plots of building sites situate in the Bairuni Mandi (outer market) of Batala recorded as ahatas Nos. 27 and 28 and owned by the. Government had been on lease with Mathra Das plaintiff for some years. It is again common ground that the contracts of lease under which the plaintiff had been holding the sites had been contracts of yearly lease, the lease having been renewed at the end of each year. It is further admitted by the parties that the period of the last lease expired on 31st March 1915 when the Provincial Government let out the premises to someone else who had given the highest bid for the rent at an auction held under its orders. The plaintiff brought his suit on 24th May 1945, alleging that he being ready and willing to continue as a tenant of the suit premises under the defendant on the old terms and having never made default in payment of the rent as it accrued due, the defendant was not entitled to eject him accept in compliance with the provisions of the Punjab Rent Restriction Act. The suit was resisted by the defendant, inter alia, on the pleas that the aforesaid' Act did not, by reason of the provisions of the Grown Grants Act, govern the lease granted by it to the plaintiff and that, in any event, assuming that the Act did otherwise apply, the lease being for a fixed period the tenancy determined at the end of such period and the plaintiff became liable to ejectment without complying with its provisions in the matter of notice. On these pleas, the learned trial Judge framed the following preliminary issues:
(1) Does not the Punjab Urban Bent Eestriction Act apply to the present case?
(2) Was a notice for ejectment necessary in this ease? If not, what is its effect?
3. The learned trial Judge held on the first issue that the Punjab Urban Rent Restriction Act 1941 did not apply to the present case. On the second issue, relying on a judgment of a learned Single Judge of the High Court of Lahore in Hari Singh v. Narain Das A.I.R. 1945 Lah. 175, he held that if the Act had been held to be applicable to the lease in question, the plaintiff could not have been ejected except in compliance with the provisions of Section 10 of that Act in the matter of notice in spite of the lease being for a fixed period As a result of his finding on the first issue, however, the learned Judge dismissed the plaintiff's suit. On the matter coming up before him in appeal by the plaintiff, the learned Senior Sub-Judge of Gurdaspur affirmed the decision of the learned trial Judge on Issue 1, and, without expressing any opinion about issue 2 dismissed the appeal. The plaintiff feeling aggrieved from the decree of the learned Senior Sub-Judge came up in appeal to this Court. His appeal was in the first instance heard by my learned brother sitting singly. In view of a conflict of opinion on the question of the appeal usability or otherwise of Section 3. Crown Grants Act, to the present ease his Lordship was pleased to refer the case to a Division Bench. The appeal was accordingly laid before us and we have heard learned and elaborate arguments from both sides on the question covered by the first preliminary issue.
4. The Crown Grants Act consists only of three sections. Section 1 provides that the Act may be called the Crown Grants Act of 1895 and that it extends to the whole of British India. Section 2 runs as follows:
Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made (by or on behalf of the Crown) to, or in favour of, any person whomsoever, but every such grant or transfer shall be construed and take effect as if the said Act had not been passed.
Section 3 runs as follows:
All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding.
5. In the opening part of the Act it is stated that it is an act to explain the Transfer of Property Act, 1882, BO far as it relates to grants from the Crown and to remove certain doubts as to the powers of the Crown in relation to such grants. The preamble of the Act reads as follows:
Whereas doubts have arisen as to the extent and operation of the Transfer of Property Act, 1882, and as to the power of the Grown to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority, and it is expedient to remove such doubts; It is hereby enacted as follows:
6. The Courts below have held, relying on Section 3 of the Act, that the provision in the instrument of lease executed between the parties whereby the lease was to terminate on 31st March 1945, and the landlord was to have, on such termination, the right to eject the tenant is not affected by Section 10, Punjab Urban Rent Restriction Act, which provides:
No order for the recovery of possession of any premises shall be made so long as the tenant pays or is ready or willing to pay rent to the full extent allowable by this Act and performs the other conditions of the tenancy:
Provided that the Court shall make an order for the recovery of possession if the landlord satisfies the Court that six months' notice to quit or notice of such period as may be required under the contract of tenancy, whichever be longer, has been served on the tenant.
7. In holding the Crown Grants Act to be applicable to the case they have relied on certain decisions of the Patna, the Allahabad and the Calcutta High Courts.
8. In Secretary of State for India v. Nistarini Annie Mitter : AIR1927Pat319 , the question that arose for decision was whether Section 107, T.P. Act, requiring a lease of immovable property for a term exceeding one year to be made by means of a registered instrument applied also to leases of Crown lands.
In answering the question in the negative, Dawson-Miller, C.J. with whom Foster, J. concurred remarked:
As to the other ground upon which the learned Additional Sessions Judge based his decision no authority was referred to in support of it, and I confess I am unable to see why a lease of Crown lands granted by the Secretary of State, whilst acting under the powers conferred upon him by statute as the representative of the Crown, should be treated as a lease granted by a private individual and therefore, subject to registration. Nor can the source from which the Crown derives its interest in the lands, in my opinion, have any bearing on the question for determination.
Section 107, T.P. Act, was also referred to by the learned Counsel for the respondent in support of his contention in favour of registration. The section provides that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, cart be made only by a registered instrument. But the Transfer of Property Act does not apply to any grant or other transfer of land, or any interest therein made by or on behalf of the Crown in favour of any person whomsoever. This is the language of the Crown Grants Act and in my opinion it leaves no doubt that leases granted by the Crown are outside the operation of the Transfer of Property Act. It was argued that a distinction should be made between grants by virtue of the prerogative rights of the Grown and grants made as a mercantile transaction for profit. If profit is to be the distinction it might be answered that history is not without instances of the exercise of the royal prerogative for motives of gain, as a study of the grants of monopolies under the Tudor and early Stuart monarchs will show. But apart from this, it is not, I think, permissible to construe the statute by reference to such a speculative matter as the motives actuating the grant. The language of the Crown Grants Act is clear and unambiguous and affords no scope for such a distinction.
9. In Gaya Parsad v. Secretary of State : AIR1939All263 , a piece of nazul land which had been granted by the Secretary of State to one William Barrett in 1887 was sold in 1892, by one Miss Jane Bailey, who claimed to be his heir, with the consent of the municipal committee which was supposed to administer the nazul land on behalf of the Government, to Gaya Parsad appellant. The Secretary of State brought a suit for ejectment of the aforesaid Gaya Parsad on the allegation that the transfer in his favour was invalid. The suit was decreed by the Courts below. At the hearing of the second appeal in the High Court the transfer was sought to be supported on the ground that under the provisions of Section 188, Contract Act, which provides that where an agent has authority to do an act he must be deemed to have authority to do every lawful thing which is necessary to do such act, the municipal committee, which was administering the nazul land on behalf of the Secretary of State, had authority to consent, on behalf of the latter, to the transfer of a piece of nazul land that had been granted by him on the condition that it could not be transferred except with his consent. In repelling this contention Bennet, J. who wrote the judgment of the Division Bench held that the section of the Contract Act on which reliance had been placed had no binding effect on the Government in view of the provisions of Section 3, Crown Grants Act. The effect of the provisions contained in the said section of the Act, according to his Lordship, was that the Crown could not be bound by any of the provisions of the Tenancy Act or the Transfer of Property Act or the Contract Act.
10. In the High Court of Calcutta the question as to the precise scope of the Crown Grants Act and as to the applicability of its provisions to leases granted by the Government came up for consideration in three cases. The first case in which this question was considered was that of Secretary of State v. Lal Mohan Choudhury and Ors. : AIR1935Cal746 . In this case the Government, on 8th November 1920, granted the plaintiff Lal Mohan Choudhury, etc., a lease of 10 kanis odd of land subject to payment by them of rent at a certain rate. A title suit brought by a third party was on the date of the grant of the lease, pending against the Government. As a result of the decision in that suit the Government lost 2.07 kanis out of the land comprised in the lease. The Government subsequently excluded this land from the lease making a corresponding reduction' in the amount of rent. The plaintiffs sued to establish their right in the aforesaid 2.07 kanis of land, claiming not to be bound by the decree against the Government in the title suit to which they themselves were never impleaded as parties subsequent to the lease in their favour. The question that arose for decision was whether the rule of lis pendens as embodied in Section 52, T.P. Act, was applicable. It was contended on the plaintiff's behalf that it was not, and in support of this contention reliance was placed on Section 3, Crown Grants Act, and it was urged that the aforesaid section had the effect of taking leases of Crown lands granted by the Government outside the scope of all other statutory provisions. A Division Bench of the High Court repelled this contention and held the rule of lis pendens as embodied in Section 52, T.P. Act, to be applicable to the lease in spite of the provisions of Sections stand 3, Crown Grants Act. In coming to this conclusion, their Lordships expressed the opinion that a lease granted by a Government Officer in charge of a khas mahal could not fall within the category of grants from Crown referred torn the Crown Grants Act and that that Act was an enactment relating to grants from the Crown authorising certain limitations and restrictions upon such grants made under its authority. It was further pointed out by them that the position of the Government in regard to such lands was that of an ordinary landlord, the Government occupying no higher position than that of a zamindar.
11. The next case in which the question came up before the High Court of Calcutta was that of Jnanendra Nath Nanda and Ors. v. Jadu Nath Banerji and Ors. : AIR1938Cal211 , decided by R.C. Mitter, J. sitting in Single Bench. In this case each of the leases granted by the Government of strips of waste land to different persons contained a clause to the effect that in the event of any boundary dispute arising between the lessees they shall be bound to submit such dispute to the Commissioner for decision and that the decision of the Board of Revenue on appeal shall be final and binding on the lessees. The question that arose for decision in that case was whether such a clause was affected by Section 28, Contract Act, which runs as follows:
Every agreement, by which any patty thereto is restricted absolutely from enforcing his rights under or in respect of any contract by the usual proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent.
12. In answering this question in the negative the learned Judge observed as follows:
The next question is what is the scope of the Crown Grants Act. Does it affect only the provisions of the Transfer of Property Act or does it affect also any other law, statutory or otherwise, which may be inconsistent with terms and conditions made in the grant. Mr. Bose contends for the acceptance of the first proposition. Section 3 is in the widest possible form, but Mr. Bose contends that there is an ambiguity in that section; the ambiguity, according to him is caused by the use of the words 'such grant' occurring therein. He says that in such circumstances it is legitimate to refer to the Preamble of the Act to find out the scope of the Act for the purpose of clearning the ambiguity. He further says that the Premable indicates that the object of the Act was to make inapplicable only the provisions of the Transfer of Property Act to Crown grants. It is no doubt a principle of construction that the Preamble of an Act can be invoked for removing an ambiguity in an Act, but it is equally a well settled principle that the Preamble cannot be invoked for creating an ambiguity in the Act. It is, therefore, necessary to see firstly if there is any ambiguity in Section 3 and secondly what is the meaning of the Preamble.
In my judgment there is no ambiguity in Section 3, the words 'such grants' clearly mean grants made on behalf of the Crown. The Preamble mentions two objects, namely, (1) to remove doubts about the operation of the Transfer of Property Act on Crown grants and (2) to remove doubts on the power of the Crown to impose limitations and restrictions upon grants and other transfers of land made by the Crown. The two following sections of the Act carry out these two objects. Section 2 deals with the Transfer of Property Act and Section 3, declares the unfettered discretion of the Crown to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. If Mr. Bose's contention had been right, Section 3 would be redundant. There is high authority also that the Crown Grants Act does not contemplate only the Transfer of Property Act.
13. In Suria Kanta Roy Choudhury and Ors. v. Secretary of State A.I.R. 1938 Cal. 329, which was heard by a Division Bench consisting of R.C. Mitter and Biswas, JJ., although the actual decision proceeded on other grounds and it was unnecessary for their Lordships to give any decision on the question which also had been raised at the trial whether the Crown Grants Act affected only the provisions of the Transfer of Property Actor had a. more general and wider operation, the following observations were made on the point at the end of judgment:
The Crown Grants Act applies to grants by Government of Sunderban lands. The scope of the Act is not limited to affecting the provisions of the Transfer of Property Act only. The Crown has unfettered discretion to impose any condition, limitation or restriction in its grants and the right, privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law.
14. In Kallingal Moosa Kutti v. Secretary of State for India in Council A.I.R. 1920 Mad. 413, the Secretary of State had brought a suit for the ejectment of the defendant appellant who held under a lease for a period of three years on the ground of the latter, having constructed buildings on the demised land in breach of the terms of the lease. The suit was resisted by the defendant on the pleas that the instrument of lease was inadmissible in evidence for want of registration and that the provision in the lease restraining him from erecting buildings on the demised land was unenforceable being obnoxious to Section 19, Malabar Compensation for Tenants' Improvements Act. Both these contentions were repelled by the Courts below and their decision was affirmed by the High Court on second appeal. In holding the instrument of lease not to be compulsorily register rable their Lordships expressed disagreement with the view taken in an earlier judgment of the High Court of Allahabad in Munshi Lal v. Notified Area of Baraut A.I.R. 1914 All. 120), in which a lease granted by Commissioners of a Notified Area of certain plots of land owned by the Government but handed over to the Notified Area for administration purposes had been held to be compulsorily registrable. In reaching this conclusion, the learned Judges of the Allahabad High Court had held that the case of the lease was not covered by clause (d) of Section 90, Sub-section (1), Registration Act which exempted grants or assignments by Government of land or of any interest in land from registration. They had also held that the Crown Grants Act had no application to the case before them. The Bench of the Madras Court held the case of a lease to be covered by the above mentioned provisions of the Registration Act and also by the Crown Grants Act. Dealing with the latter question, Sheir Lordships made the following observations:
Section 2 of the Act refers to grant or other transfer of land or of any interest therein. This language shows in the first place that the word 'grant' can be employed to denote a transfer of land. In the second place it is clear that all transfers of land of every description are within the operation of the section. Mr. Menon's suggestion that the Act is confined to the transfer of prerogative rights possessed by the Crown and not to ordinary incidents of a mercantile transaction in which the Crown may be engaged is opposed to the plain language of the statute. We find nothing in Dost Mohammad Khan v. The Bank of Upper India A.L.J. 129, to support this view.
On the second point, we feel no doubt that the wide language of Section 8, Crown Grants Act, is conclusive. The Government have specially armed themselves with powers which they have withheld from private parties, presumably on the ground that they are not likely to misuse them. It is clear to me that these contracts were not within the mischief of Section 19, Malabar Compensation for Tenants' Improvements Act.
15. In Ullattuthodi Choyi v. Secretary of State for India in Council A.I.R. 1921 Mad. 409, again the question whether the provisions of the Malabar Compensation for Tenants Improvements Act could be invoked by a tenant under the Crown arose, and another Division Bench answered the question in the negative.
16. A consideration of the decisions noticed above will show that the Courts in this country have very generally been inclined to place the widest interpretation on the provisions of the Crown Grants Act. The view generally taken appears to be that, according to those provisions, in cases of all grants by the Crown, including leases, the terms, express or implied, contained in the instrument of grant alone must govern all questions arising between the parties to such grants as well as persons claiming through or under such parties or either of them, and that the effect or operation of those terms is not controlled or affected by any legislative enactment passed before or after the grant. More recently, however, the Federal Court has expressed the view, and their Lordships of the Judicial Committee seem to have endorsed that view, that the Act, and more particularly Section 3 thereof, must receive a much more restricted interpretation, and that it should not in any ease be interpreted so as to exclude any of the terms of a Crown grant except those relating to certain matters from the operation of a statute dealing generally with the particular species of grants. In 1939 the Legislature of the United Provinces passed an Act known as the United Provinces Tenancy Act which admittedly had the effect of cutting down the absolute rights claimed by some of the talukdars of Oudh to be comprised in the grant of their talukas, as evidenced by sanads granted to them by the head of the Province under the authority of the Governor-General-in-Council. One Thakur Jagannath Baksh Singh, taluhdar of Bhawanshahpur, held the taluka under a sanad granted to Babu Sitla Baksh Singh his predecessor-in-title. He brought a suit for a declaration that the Act in its entirety or at least certain specified parts of it was beyond the competence of the Provincial Legislature to enact and was also otherwise void, invalid and inoperative. His suit having failed in the. High Court he took an appeal to the Federal Court. The judgment of that Court dismissing the appeal is reported in Jagannath Baksh Singh v. United Provinces A.I.R. (30) 1943 P.C. 29. It was held that the Act fell within entry 21 of the Provincial List as contained in the Constitution Act and was therefore prima facie within the competence of the Provincial Legislature. Objection was taken on the appellant's behalf to the provisions of the Act which took away and modified the rights claimed by the talukdar against his tenants under the terms of the sanad, relying on the doctrine that a grantor may not derogate from his grant and also on the provisions of Section 3, Crown Grants Act. The doctrine that a grantor may not derogate from his grant was held by the Federal Court not to limit the legislative powers of the grantor and Section 3, Crown Grants Act was also held to be of no avail to the appellant. In dealing with the question of the effect and operation of that Act their Lordships observed as follows:
Counsel for the appellant laid great stress on the Crown Grants Act, 1895, Section 3. The preamble to that Act recites that doubts had arisen as to the extent and operation of the Transfer of Property Act, 1882, and as to the power of the Crown to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority, which it was expedient to remove. Certain provisions of general application in the Act of 1882 had been found to conflict with provisions in the sanads, and the power of the Crown to impose limitations and restrictions other than those known to the general law had been challenged. Accordingly, the Act first provided that every grant or transfer of land by or on behalf of the Crown should be construed and take effect as if the Act of 1882 had not been passed, and, secondly, that all provisions, restrictions, conditions and limitations over contained in any such grants or transfers should be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature notwithstanding. The words 'provisions, restriction, conditions and limitations over' must be construed with reference to the purpose of the Act, and plainly refer to the course of descent, inheritance, devolution and the like. They cannot refer to such matters as the relations between a sanad-holder and his tenants. Nor could anything in the Crown Grants Act limit the power of a Legislature to pass suoh legislation as it thought fit thereafter.
18. Thakur Jagannath Bakhsh Singh took the matter in appeal to the Privy Council. Their Lordships affirmed the judgment of the Federal Court, dismissing his appeal. They expressed full concurrence with the view taken by that Court with regard to the scope and operation of the Crown Grants Acts. The judgment of their Lordships is reported as Jagannath Baksh Singh v. United Provinces , in which the relevant observations are to be found at page 131, second column and are as follows:
Their Lordships ought to refer in passing to the Crown Grants Act, 1895, of which Section 3 was relied on by the appellant. That section runs:
All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid (i.e., one made by the Crown) shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding:
These general words cannot be read in their apparent generality. The whole Act was intended to settle doubts which had arisen as to the effect of the Transfer of Property Act, 1882, and must be read with reference to the general context and could not be construed to extend to the relations between a sanad-holder and his tenants. Still Jess could they be construed to limit the statutory competence of the Provincial Legislature under the Constitution Act.
18. In view of the above pronouncements, (which are of course binding on us, I cannot but hold, disagreeing with the view taken by the two Courts below, that Section 8, Crown Grants Act, does not take the present lease outside the operation of the Punjab Urban Rent Restriction Act, in so far, of course, as the provisions of that Act are otherwise applicable to it.
19. I may note that some days after the conclusion of the arguments Mr. Mehra, the learned Counsel for the respondent, brought to my notice the judgment of the Privy Council in Province of Bombay v. Municipal Corporation of the City of Bombay and Anr. A.I.R. 1947 P.C. 34 and the judgment of a Division Bench of the High Court of Calcutta in Governor General-in-Council v. Corporation of Calcutta A.I.R. 1848 Cal. 116. One of the two judgments being a Privy Council judgment and the question of law that we are called upon be decide in this case being one of very great and general importance I did not think it fit to decline to look at these authorities on the ground of their not having been cited at the proper time and stage. Had I not on perusing them found to be quite irrelevant, a rehearing of the appeal might have become necessary.
20. In both these judgments the rule of English law that the Crown is not bound by a statute having the effect of depriving it of any prerogative or right of property unless it expresses its intention to do so in explicit terms 'or makes the inference irresistible was held to be applicable also in this country. As pointed out by Maxwell in his Treatise on the Interpretation of Statutes (1946 Edn.) at p. 146, the Crown is not excluded from the operation of a statute where neither its prerogative rights, nor property are in question.
21. The present is certainly not a case which can be said to attract the application of this rule. The Punjab Urban Rent Restriction Act is not being invoked by the plaintiff for the purpose of prejudicially affecting any property or prerogative of the Crown or any other right vesting in the Crown as such. It is being invoked only for the purpose of showing that in order to eject one of its tenants the Crown had also to follow the same procedure which any other landlord similarly situate is required to follow.
22. I am clearly of the opinion that the decree of the learned Senior Sub-Judge dismissing the plaintiff's suit on the ground that Section 8, Crown Grants Act, applied to the case and precluded the plaintiff from claiming the benefit of the Punjab Urban Rent Restriction Act cannot be sustained.
23. I would accordingly allow this appeal and setting aside the judgments and the decrees of the two Courts below would remit the ease to the learned trial Judge for decision according to law of the other points arising in the case.
24. One of the defendant's pleas was that, apart altogether from the provisions of the Crown Grants Act, Section 10, Punjab Urban Rent Restriction Act, had no application to the present case because the tenancy in this case being one for a fixed term had determined on the expiration of that term and the plaintiff held the premises after that not as a tenant but as a trespasser and was liable to be dispossessed without issue of any notice to quit. Issue 2 as framed by the learned trial Judge evidently arose out of this plea.
25. The learned Judge relying on the judgment of a learned Single Judge of the High Court of Lahore in Hari Singh v. Narain Das A.I.R. 1945 Lah. 175, held that Section 10, Punjab Rent Restriction Act, applied also to leases for fixed terms and that even in case of such leases the tenant could not be ejected on the expiration of the period of the lease without issuing a notice to quit as provided in that section. The learned Senior Sub-Judge did not deal with this aspect of the case at all and did not express any opinion as to the correctness or otherwise of the view taken by the learned trial Judge on issue 2. This matter was not argued before us at the hearing of the appeal. I, however, want to note that both I and my learned brother have not agreed with the view of the law taken by the learned Single Judge in the case relied on by the trial Court. Both of us have, sitting in Single Benches, held that Section 10, Punjab Urban Rent Restriction Act, does not apply to a lease for a fixed term and that on the determination of the tenancy on the expiration of such term an action can be brought for the dispossession of the ex-tenant unless of course he can prove the renewal of the tenancy under Section 116, T.P. Act, by reason of the landlord having accepted attcrnment from him after the expiry of the term of the lease.
26. My judgment on the subject is reported as Fateh Mahomed v. Chiragh Din A.I.R. 1948 Lah. 77. Now, that the judgments of both the Courts below have been set aside, including the decision of the learned trial Judge on issue 2, the whole case excepting the point actually decided in this Court must be deemed to be open and the learned trial Judge should be able to re-decide also the question of the applicability of Section 10 of the Act, to a lease for a fixed term after considering all the relevant authorities on the subject. Costs of this appeal would be costs in the cause.