C.B. Capoor, J.C.
1. This appeal and Miscellaneous Second Appeal No. 16 of 1961 have been made by the Union of India and the same question of law arises in both of them and in order to facilitate matters I propose to deal with them together.
2. The respondent to this appeal and the respondent to the other appeal filed separate applications under Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, hereinafter to be referred as 'the Act', for the acquisition of proprietary rights in the land held by them as tenants.
3. The applications were directed against the Union of India and the main pleas in defence put forward were that the respondents were not tenants, that no relationship of landlord and tenant subsisted between the parties, that the disputed land formed part of the protected forest under the Indian Forest Act 1927 and that in any case proprietary rights could not be granted in respect of the trees. Those objections did not find favour with the Compensation Officer and the applications were allowed. Those orders were challenged in appeal and one of the contentions raised was that the Union of India was not bound by the provisions of the Act and the applications did not lie in respect of Government land. The learned District Judge treated the contention as a belated one and held that it was not open to the appellant to raise it at the appellate stage. He, however, also expressed the opinion that the contention was not tenable and dismissed the appeals. Aggrieved by the aforesaid orders, the present appeals have been filed.
4. The only question that arises for decision is as to whether the Union of India was bound by the provisions of the Act and as to whether applications under Section 11 of that Act could lie against the Union of India in respect of Government land.
5. The intricate albeit interesting question as to whether State is bound by statute has happily been settled by the Supreme Court in the case of Director of Rationing and Distribution v. Corporation of Calcutta, AIR 1960 SC 1355. It has been held therein by a majority decision that the English common law rule that a sovereign is not necessarily bound by a statutory law which binds the subject and that he is not bound by a statute unless he is expressly named or unless he is bound by necessary implication or unless the statute being for the public good it would be absurd to exclude him from it was applicable to India prior to the advent of the Constitution and is also applicable to it since the coming into force of the Constitution. A contrary opinion was, however, expressed by Mr. Justice Wanchoo. According to him the proper rule of construction which should be applied after January 26, 1950, is that the State In India, whether in the centreor in the States, is bound by the law unless there is an express exemption in favour of the State or an exemption can be inferred by necessary implication.
6. In view of the majority decision what has to be determined is as to whether the provisions of the Act are binding on the appellant either expressly or by necessary implication. It may at the outset be mentioned that the Act does not bind the Government expressly and what has to be determined is if its provisions bind it by necessary implication.
7. The definition of tenant has been given in Section 2(17) of the Act and it has been provided therein that a tenant does not include:
'(a) ..... ...... ...... ......(b) ..... ...... ...... ...... (c) ..... ....... ...... ...... (d) a person who takes from the State Government a lease of unoccupied land for the purpose of subletting it.'
8. On behalf of the respondent much reliance has been placed upon Clause (d), referred to above, and it has been contended that if the intention of the Legislature had been that the provisions of the Act or for the matter of that Section 11 thereof will not bind the Government Clause (d) would have been differently worded and would have run more or less as below:
'A person who holds land under the State Government.'
The contention advanced on behalf of the respondent is not without considerable force. Section 27 of the Act upon which also reliance has been placed on behalf of the respondent reinforces the aforesaid contention. That section inter alia provides that (a) subject to certain conditions the right, title and interest of a land-owner in land liable to pay more than Rs. 125/- per year as land revenue shall be deemed to have been transferred and vested in the State Government free from all encumbrances and (b) that the right, title and interest of the land-owner so acquired shall be transferred by the State Government on the payment of compensation in accordance with Schedule I to such tenant who cultivates such land.
9. It is a matter requiring serious consideration if the Legislature could have intended that the Government will not be bound by the provisions of the Act and particularly by Section 11 thereof when a statutory obligation has been cast upon the State Government to transfer to the tenants upon pay ment of the prescribed compensation such land as has vested in it under Sub-section (1) of Section 27. Stated differently if the intention of the Legislature had been to debar the tenants holding land under the Government from acquiring proprietary rights it would not have provided, muchless in a mandatory language, that the land vested in the State Government under Section 27(1) of the Act shall be transferred to the tenants of such land upon payment of the prescribed compensation. The object underlying the Act, as appears from the preamble, was to abolish big landed estates and to improve the status of the tiller of the soil and one finds it rather difficult to believe that the intention of the Legislature could have been to abolish the big landed estates of private land owners and to let the Government continue to hold extensive areas of land in the occupation of the tenants.
10. Reliance was also placed upon the provisions of Section 15 of the Act. That section subject to the provisions of Clauses (d) and (g) of Sub-section (1) of Section 54 empowers the State Governmentto acquire the right, tide and interest of the landowner in the lands of any tenancy held under him by a tenant upon payment of compensation. It further provides that upon acquisition of such interest the land-owner shall cease to have any connection with the land and the tenant shall pay to the State Government the rent he was liable to pay to the land-owner. Unlike Section 27 of the Act this section does not specifically provide that the State Government shall transfer to the tenant the land acquired. Such a specific provision does not appear to have been made in view of the provisions of Section 11 which are of wide amplitude. It is notwithstanding any law, custom or contract to the contrary that a tenant (other than a sub-tenant) has been given a right to acquire, on payment of compensation, the right, title and interest of the land-owner in the land of the tenancy held by him under the land-owner and there does not appear to be any good reason to think that the section would not apply to tenant of land held by Government as landlord. I am prone to think that the object underlying the acquisition of right, title and interest of the land-owner in land of any tenancy held under him by a tenant was that such interest should ultimately be transferred to the tenant.
11. On careful consideration of the relevantprovisions of the Act the conclusion to which I havebeen driven is that by necessary implication the Actbinds the Government and an application undersection 11 of the Act by a tenant is competent inrespect of land held by him under the Government.
12. In conclusion, the appeals fail and I herebydismiss them with costs. Let a copy of this orderbe placed on the record of Miscellaneous SecondAppeal No. 16 of 1961.