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PETITIONER: JAIMAL & ANR.

       Vs.

RESPONDENT: FINANCIAL COMMISSIONER, PUNJAB & ORS.

DATE OF JUDGMENT: 25/09/1968

BENCH: SIKRI, S.M. BENCH: SIKRI, S.M. BACHAWAT, R.S.

CITATION:  1969 AIR  392            1969 SCR  (2) 210

ACT: Punjab  Security of Land Tenures Act (Punj. 10 of 1953),  s. 18--Sub-tenant  whether  entitled  to  purchase  land   from landowner.

HEADNOTE: The  appellants,  who  had been  in  occupation  of  certain agricultural  lands for more than 30 years as  sub-tenants., applied  under s. 18 of the Punjab Security of Land  Tenures Act, 1953 to purchase the lands.  The final authority  under the  Act,  held that the ’appellants were  not  entitled  to purchase the land.  The appellants flied a writ petition  in the  High  Court.  The High Court held that  the  appellants being sub-tenants were not entitled to apply under s. 18  of the Act.  Dismissing the appeal, this Court,     HELD:  The  Legislature  did not intend  to  confer  any rights under s. 18 on the sub-tenant.     The word ’landowner’ is defined in s. 2(1) of the Act to mean  a  person defined as such in the Punjab  Land  Revenue Act,  1887.   Under  the latter Act, a  landowner  does  not include a tenant.  The definitions of the words ’tenant’ and ’land-owner’,  make  it  clear that ’a tenant  of  a  tenant cannot  be a tenant of the land-owner, Further, [213 G;  214 E]     (a)  The first proviso to sub-s. (1) of s. 18  makes  it clear that a tenant who has sublet the land or a portion, as the  case may be. to any other person during the  period  of his continuous occupation is disabled from applying under s. 18 unless during the period of his continuous occupation the tenant  was  suffering  from legal  disability  or  physical infirmity  or if a woman was a widow or was unmarried;  [214 E-F]     (b)  If  it  was intended that a  sub-tenant  should  be entitled to purchase under s. 18, some provision in the  Act would have been there to solve the difficulties which  would arise  if there was competition between the tenant  and  the sub-tenant; [215 A-B]     (c) If the contention of the appellant was correct,  the sub-tenant  would  become  the owner of the  land  under  s. 18(4)(b)   on   the  purchase   price   being   deposited.No satisfactory  answer was given ’as to what will then  happen to the rights of the tenant; and [215 C]

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   (d) Section 18(5) refers to mortgage of the land but  it does  not refer to the mortgage of the rights of  a  tenant. [215 D]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No.. 2354 of 1966.     Appeal  from the judgment and order dated July  1963  of the Punjab High Court in Civil Writ No. 1559 of 1962.     M.C. Chagla and Janardan Sharma, for the appellants.     B.C.  Misra, S.K. Mehta and K.L. Mehta,  for  respondent No. 3.    211     The Judgment of the Court was delivered by     Sikri,  J.   This appeal by certificate granted  to  the appellants by the High Court of Punjab under Art.  133(1)(c) of the Constitution raises one point, namely, whether a sub- tenant is entitled to purchase the land from the  land-owner under   s. 18  of  the Punjab Security of Land  Tenures  Act (Punj. Act X of 1953)-hereinafter referred to as the Act.     It  would  be  sufficient  to  give  few   facts.    The appellants, Jaimal and Ram Singh, applied under s. 18 of the Act  to.  the  Assistant Collector, 1st  Grade,  Hissar,  to purchase  280  kanals 4 marlas of land  situate  in  village Mehnda,  Tehsil  Hansi,  District  Hissar.   The  land   was originally owned by respondents. Nos. 4 to 10, who had given this  land on lease to Sheo Parshad, respondent  No. 3.   It is not in dispute that the appellants and their fathers  had been  in occupation of the land in dispute for the  last  30 years, as sub-tenants under Sheo Parshad, respondent No.  3. During  the pendency of the application, respondents Nos.  4 to.  10 sold the land in dispute, on October 25,  1957,  to. Sheo  Parshad,  and also in favour of his  two.  sons.   The Assistant  Collector, by his order dated November 30,  1959, accepted the application of the appellants and allowed  them to purchase 274 kanals of land for Rs. 6,730/-.  On  appeal, the  Collector  varied the order but the  variation  is  not material  for the purpose of this appeal.   The.  appellants then  preferred  an  appeal to  the  Commissioner  and  Sheo Parshad filed Revision Petition to him against the order  of the.  Collector.  The Commissioner upheld the claim  of  the appellants  to purchase the land under s. 18 of the  Act  at the  price  assessed  by the  Assistant  Collector,  but  he modified  the order in respect of 85 kanals 8  marlas  which had been sold to the sons of Sheo Parshad.  The final  order in   the   proceedings  was   passed   by    the   Financial Commissioner  who, by his order dated August 27, 1962,  held that the appellants. were not entitled to purchase the  land under  s. 18 of the Act.  Thereupon the appellants  filed  a petition  under  Art. 226 of the  Constitution,  seeking  to quash  the  order of the Financial Commissioner.   The  High Court was also of the opinion that the appellants being sub- tenants were not entitled to apply under s. 18 of the Act.     The  answer to the question whether the  appellants  are entitled  to apply under s. 18 of the Act depends  upon  the interpretation. of s. 18, which reads as follows:     "18. Right of certain tenants to purchase land.     (1)  Notwithstanding anything to the contrary  contained in  any  law, usage or contract, a tenant of a  land   owner other than a small land-owner- 121     (i)  who has been in continuous occupation of  the  land comprised in his tenancy for a minimum period of six  years,

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or     (ii)  who has been restored to his  tenancy   under  the provisions  of  this  Act and whose  periods  of  continuous occupation of the land comprised in his tenancy  immediately before  ejectment and immediately  after restoration of  his tenancy together amount to six years or more, or     (iii)  who was ejected from his tenancy after  the  14th day of August, 1947, and before the commencement of this Act who  was in continuous occupation of the land  comprised  in his  tenancy for a period of six years or  more  immediately before his ejectment,     shall  be entitled to purchase from the  land-owner  the land so held by him but not included in the reserved area of the  land-owner,  in  the case of a  tenant  falling  within clause (i) or clause (ii) at any time, and in the case of  a tenant  falling within clause (iii) within a period  of  one year from the date of commencement of this Act:     Provided that no tenant referred  to in this  subsection shall  be entitled to. exercise any such right in respect of the  land or any portion thereof, if he had sublet the  land or  the  portion, as the case may be, to any  other  person, during  any  period of his  continuous  occupation,   unless during  that  period the tenant was suffering from  a  legal disability or physical infirmity, or if a woman, was a widow or was unmarried;     Provided  further  that  if  the  land  intended  to  be purchased  is  held  by another tenant who  is  entitled  to preempt  the sale under the next preceding section, and  who is  not  accepted by the purchasing tenant,  the  tenant  in actual occupation shall have the right to pre-empt the sale.     (2)  A  tenant desirous of purchasing land   under  sub- section  (1)  shall  make an application in  writing  to  an Assistant Collector of the First Grade,  having jurisdiction over the land concerned, and the Assistant Collector,  after giving  notice  to  the landlord and to  all  other  persons interested  in the land and after making such inquiry as  he thinks  fit,  shall determine the value of  the  land  which shall  be  the average of the  price obtaining  for  similar land in the locality during 10 years 213 immediately  preceding the date on which the application  is made.       (3)  The purchase price shall be three-fourth  of  the value of land as so determined.       (4)  (a)  The  tenant shall be competent  to  pay  the purchase  price  either  in a lump sum  or  in  six  monthly instalments not exceeding ten in the manner prescribed.       (b)  On  the purchase price or the  first   instalment thereof,  as the case may .be, being deposited,  the  tenant shall  be deemed to have become the owner of the  land,  and the  Assistant  Collector  shall, where the  tenant  is  not already in possession, and subject to the provisions of  the Punjab  Tenancy  Act (XVI of 1887), put  him  in  possession thereof.       (c)  If a default is. committed in the payment of  any of the instalments, the entire outstanding balance shall  on application  by  the  person  entitled  to  receive  it,  be recoverable as arrears of land revenue.       (5)  If the land is subject to a mortgage at the  time the purchase, the land shall pass to the tenant unencumbered by the mortgage but the mortgage  debt shall be a charge  on the purchase money.       (6)  If  there is no such charge   as  aforesaid   the Assistant  Collector shall, subject to any ’direction  which he may receive from any court, pay the purchase money to the

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landowner.       (7) If there is such a charge, the Assistant Collector shall,  subject as aforesaid, apply in the discharge of  the mortgage  debt so much of the purchase money as is  required for  that purpose and pay the balance, if any, to the  land- owner, or retain the purchase money pending the decision  of a  civil  Court  as  to  the  person   or  persons  entitled thereto." "Land-owner"   is  defined in s. 2( 1 ) of the Act  to  mean person defined as such in the Punjab Land Revenue Act,  1887 (Act  XVII  of  1887) and shall include  an  "allottee"  and "lessee". as defined in clauses (b) and (c) respectively, of section  2  of  the  East  Punjab  Displaced  Persons  (Land Resettlement)Act,  1949  (Act XXXVI  of  1949),  hereinafter referred to as the "Resettlement Act". The explanation to s. 2 (1) reads:                    "In   respect  of  land  mortgaged   with               possession,  the mortgagee shall be deemed  to               be the land-owner." The word "tenant" is defined in s. 2 (6) as follows: 214                   "Tenant" has the meaning assigned to it in               the Punjab Tenancy Act, 1887 (Act XVI of 1887)               and includes a sub-tenant and self-cultivating               lessee,  but  shall  not  include  a   present               holder,  as  defined  in  section  2  of   the               Resettlement Act." In the Land Revenue Act, 1887, "land-owner" has been defined as follows,in s.3 (2)                   "land-owner"  does not include   a  tenant               or   an  assignee of  land-revenue,  but  does               include  a person to  whom a holding has  been               transferred, or an estate or holding has  been               let  in farm, under this Act for the  recovery               of  an  arrear  of land-revenue or  of  a  sum               recoverable as such an arrear and every  other               person   not  hereinbefore  in   this   clause               mentioned who is in possession of an estate or               any  share  or  portion  thereof,  or  in  the               enjoyment of any part of  the  profits  of  an               estate."     It will be noticed that before a person can apply  under s.  18 of the Act he must be a tenant of a land-owner  other than a small land-owner.  There is no dispute that the land- owner  in  this case is not a small  land-owner.   The  only question  is whether the appellants, who  were  sub-tenants, can  be  said  to be tenants of the  land-owner  within  the meaning  of  s. 18.  If we look at the  definitions  of  the words  "tenant"  and  "land-owner", it seems  clear  that  a tenant  of  a tenant cannot be a tenant of  the  land-owner, because the definition expressly says that a land-owner does not include a tenant.  Apart from this, the first proviso to sub-s.  ( 1 ) of s. 18 makes it clear that a tenant who  has sublet  the  land or a portion, as the case may be,  to  any other person during the period of his continuous  occupation is  disabled  from applying under s. 18  unless  during  the period   of  his  continuous  occupation  the  tenant    was suffering from legal disability or physical infirmity or  if a  woman was a widow or was unmarried.  In other words,  for example, a tenant who is a widow would be entitled to  apply under  s. 18 even though she had sublet the land  which  she desired to purchase. No satisfactory answer was given by the learned counsel  for  the appellants as to what would happen if both the sub-tenant and the widow applied to purchase.     Both sides have relied on the scheme of the Act, but  it

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seems  to  us  that the scheme of the Act  and  the  objects underlying  the  Act do not assist us  in  determining  this question.  It is well-known that the main objects of the Act were  to provide security to the tenants. settle tenants  on land declared surplus and fix a ceiling on the total holding of  land-owners and tenants. It is also well-known  that  it was a measure of agrarian reform.  But these matters do 215     The  answer  must  depend upon the language  of  s.  18, fairly  construed.   If it was intended  that  a  sub-tenant should  be entitled to purchase under s. 18, we  would  have expected some provision in the Act to solve the difficulties which  would  arise  if there was  competition  between  the tenant and the sub-tenant.     There was some debate before us whether a tenant who has sublet  would be treated to be in continuous  occupation  of the land during the period of sub-tenancy within s. 18 ( 1 ) (i), but we think that the proviso to s. 18 (1 ) proceeds on the  basis that the tenant is in continuous occupation  even though he has sublet the land.     It will again be noticed that under sub-s. (4)(b) of  s. 18 on the purchase price being deposited, the tenant becomes owner  of the land.  If the contention of the appellant  was correct,  the subtenant would become the owner under  sub-s. (4)(b);  but what will happen to the rights of the tenant  ? No satisfactory answer was given to this question.     Again  it will further be noticed that sub-s. (5) of  s. 18  talks of the mortgage of the land but it does not  speak of the mortgage the rights of a tenant.     It  seems to us that the High Court was right in holding that  the  legislature did not intend to confer  any  rights under s. 18 on the sub-tenant.  The fact that by sub-letting the  tenant is also not able to apply under s. 18 by  virtue of the first proviso to sub-s. (1 ) cannot confer rights  on the sub-tenant because he must himself be a tenant of  land- owner within s. 18 of the Act.     Mr.  Chagla  says that it is a very hard  case  for  the appellants have been in possession for over 30 years, but if it is a hard case it is for the legislature to intervene and provide for such hard cases.     In the result the appeal fails and is dismissed.   There will be no order as to costs. Y.P.                                       Appeal dismissed. 216