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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: JUBBI AND DUNIA, ETC.

DATE OF JUDGMENT: 05/09/1967

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. SHAH, J.C. SIKRI, S.M.

CITATION:  1968 AIR  360            1968 SCR  (1) 447

ACT: The  Himachal  Pradesh Abolition of Big Landed  Estates  and Land  Reforms  Act (15 of 1954)--If applicable to  State  as landlord.

HEADNOTE: The  Himachal  Pradesh Abolition of Big Landed  Estates  and Land Reforms Act, 1953, lays down a scheme for the abolition of  proprietary rights of landowners: (1) under s. 11  there would be a direct transfer of the rights of a landowner from the  landowner to the occupancy tenant; (2) under s. 15,  in respect of lands situate in an area specified by Government, there  would  be  a transfer to the  State  Government,  the tenants   of  such  lands  becoming  the  tenants   of   the Government;  and  (3)  under s. 27, in  the  case  of  large holdings  the  ownership would be first transferred  to  the State  Government and thereafter by the State Government  in favour of the tenant. The  respondent made an application under s. 11 of  the  Act for acquiring proprietary rights in certain lands as he  was the  occupancy  tenant of those lands, the  Union  of  India being the landowner. On the question whether the Act was intended to affect land owned orheld by the Union or State Government, HELD:There   is  nothing  in  the  provisions  of  the   Act suggesting,expresslyor  by necessary  implication  that the Act was not applicable to the State, or any  distinction between lands owned and held by citizens and lands owned and held by the State. [454C] The object of the Act was to abolish big landed estates  and alleviate the conditions of occupancy tenants by  abolishing the  proprietary  rights of landowners in them  and  vesting such  rights in the tenants.  If discrimination between  the State  and the citizen in the matter of the  application  of the Act is made it would result in the anomaly that  whereas occupancy tenants of lands owned by citizens would have  the benefit of such a beneficent legislation, occupancy  tenants of  lands  owned and held by the State would  not  get  such benefit.  An intention to bring about such a  discrimination cannot be attributed to the legislature whose avowed  object was  to  do  away, in the interest of  social  and  economic

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justice, landlordism in the State. [454-D-G] Superintendent  and,  Legal Remembrancer V.  Corporation  of Calcutta, [1967] 2 S.C.R. 170, followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 957 of 1964. Appeal from the judgment and order dated January 12, 1963 of the  Judicial  Commissioner’s Court.   Himachal  Pradesh  in Civil Misc. 2nd Appeal No. 15 of 1961. R.  Ganapathy Iyer, R. N. Sachthey and S. P. Nayar, for  the appellant. D. R. Prem and R. Thiagarajan, for the respondent. 448 The Judgment of the Court was delivered by Shelat,  J.  The Himachal Pradesh State  legislature  passed the  Himachal  Pradesh Abolition of Big Landed  Estates  and Land  Reforms Act 1953 (hereinafter referred to as the  Act) on  June  17, 1953 and the Act was brought into  force  with effect  from January 26, 1955.  The validity of the Act  was thereafter  successfully impugned (cf.  Shri Vinod Kumar  v. State  of Himachal Pradesh)(1).  The Parliament then  passed the  Validating Act, 56 of 1958.  That Act was  itself  then challenged in Jadab Singh v. Himachal Pradesh Administration (2  ) but the challenge was rejected and the Act since  then remains on the statute book as a valid piece of legislation. On June 4, 1959 the respondent made an application under  s. II of the Act for acquiring proprietary rights in the  lands set  out  therein claiming to be the cultivating  tenant  of those lands and produced a copy of Jamabandhi in support  of his claim.  He stated that he was the tenant of the Union of India in respect of the said lands. that he was  cultivating the  said lands, that he was paying Rs. 35/5/-  annually  as rent  and Rs. 23/8/- as annual land revenue and other  rates and  cesses  assessed  on the said lands  and  that  he  was willing  to  pay compensation as provided by  the  Act.   On November  26,  1959 the Forest Department on behalf  of  the Union  filed  objections alleging that the  application  was incompetent,  that  the  said  lands  formed  part  of   the protected   forest.  that  the  relationship   between   the respondent  and  the  Union was not  that  of  landlord  and tenant,  that the Union being the paramount owner could  not be  characterised  as landlord qua the  respondent.  that  a number of trees stood on the said lands, that the respondent was  merely a lessee of the said lands which were  a  forest area,  that the entries in the revenue record in respect  of the said lands were incorrect and could not be relied on  in an  application  under  section  11  and  consequently   the Compensation Officer.  Mahasu, had no jurisdiction to  grant it.   The Compensation Officer held, that the said area  was not  a  forest area, that there were no trees  on  the  said lands as alleged and that since the respondent was mentioned as an occupancy tenant in the Jamabandhi he was entitled  to proprietary   rights  in  the  said  lands  on  his   paying compensation  which  he fixed at Rs. 76.40 np.   The  Forest Department  there upon filed an appeal before  the  District Judge,   Mahasu.   principally  on  the  ground   that   the Compensation  Officer  had not followed the  procedure  laid down  in the Act and had not given to the Forest  Department reasonable opportunity to put forward its case.  The  Forest Department  did  not  dispute in the said  appeal  that  the appellant held the said lands as a tenant of the Government. On  July 26, 1960 the District Judge allowed the appeal  and remanded the case to the Compensation Officer directing  him

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to  raise proper issues and decide the matter in  accordance with law.  Accordingly. the Compensation Officer raised (1)  [1959] Supp. 1 S.C.R. 160. (2)  [1960] 3 S.C.R. 755. 449 four  issues,  viz., Whether there were trees  on  the  said lands, whetherthe  lands formed part of the forest  whether the  respondent was a  tenant in respect of the  said  lands and whether there was any     impediment   in  the  way   of granting proprietary rights to him .    The     Compensation Officer held that the respondent was a tenant, there was  no impediment  in  granting  proprietary Tights  to   (him  and allowed once again the respondents’ application.  The appeal by  the  Union against the said order  before  the  District Judge  failed.  The District Judge held that the  respondent was  ,the tenant of the Union’ and that the Act  applied  to the  said  lands as also to the Union.  The  Union  filed  a Second  Appeal before the Judicial Commissioner  challenging the  correctness of the District Judge’s said  order.   Both the Compensation Officer and the District Judge having  held on  the strength of the Jamabandhi that the  respondent  was the occupancy tenant in respect of the said lands, the  only questions raised in the Second Appeal were (1)    that   the Act did not bind the Union or the State Government and   (2) that the respondent’s application under s. 11 could not  lie against  the  Union in respect of lands owned  by  it.   The Judicial  Commissioner  followed  the ratio  laid,  down  in Director  of Rationing v. Corporation of  Calcutta(1)  which was  the  law then prevailing and in view of  that  decision posed  the  question  whether the Act  applied  to  and  was binding  on the Union.  He held that though the Act did  not contain any express provision to that effect, an examination of sections 11, 15, 27 and 54 showed that the Act applied to Government land and was by necessary implication binding  on the  Union.  He observed that the object of the Act and  the acquisition of right. title and interest of the landowner in the land of any tenancy held under him by a tenant was  that such  interest  should  ultimately  be  transferred  to  the tenant.   He  held that on a consideration of  the  relevant provisions  of the Act "the conclusion to which I have  been driven  is that by necessary implication the Act  binds  the Government  and an application under section I I of the  Act by  a  tenant is competent in respect of land  held  by  him under the Government." In that view he dismissed the Union’s appeal.   The  Union  of  India  filed  this  appeal   after obtaining certificate under Art. 133(1)(c) of the  Constitu- tion.   After this appeal had gone on for some time we  felt that as it involved a question of some public importance  it was  desirable  that we should have the assistance  of  some senior  counsel.  We accordingly directed the  Registrar  to appoint a Senior Counsel amicus curiae.  Accordingly, Mr. D. R.  Prem appeared before us.  We gratefully acknowledge  the assistance rendered by him. Mr.  Ganapathy Iyer for the Union of India took  us  through the  different  provisions  of the Act  and  submitted  that considering  the  scheme  and  the object  of  the  Act  the conclusion  was  inescapable  that  the  legislature   while enacting the Act did not intend that (1) [1961] 1 S.C.R. 158. 6SCI--3 450 it  should  to  the  Government or to  lands  owned  by  the Government.   To appreciate the contention ;it is  necessary to examine some of the provisions of the Act.  But before we do that it,would be   expedient  to  clear   the   ground

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regarding the question theapplicability  of statutes  on the  State and its immunity,if any,’from such  statutes.  In Director of Rationing v. The Corporation of Calcutta(1)  the majority  judgment  held that the law  applicable  to  India ’:before  the Constitution was as authoritatively laid  down in  the Province of Bombay v. Municipal Corp. of Bombay(2  ) that  the Constitution has not made any change in the  legal position and that on the other hand it has clearly indicated that  the  laws  in force before  January  26,  1950,  shall continue  to have validity even in the new set up except  in so far as they were in conflict with the express  provisions of  the Constitution.  The majority also held that the  rule of  interpretation of statutes that the State was not  bound by  a statute unless it so provided in express terms  or  by necessary implication was still good law.  Wanchoo J. (as he then was) in his dissenting opinion, however, held that  the rule   of  construction  which  was  based  on   the   royal prerogative as known to the common law of England could  not be applied to India now that there was no crown in India and when the common law ,of England was not applicable and  that therefore  the  State was bound by a statute unless  it  was exempted expressly or by necessary implication.  The rule in that  decision  is no longer good law.  In  Supdt.  &  Legal Remembrancer,  West Bengal v. Stale of West  Bengal(1)  this Court  considered  the  correctness  of  that  decision  and disagreeing  with the majority view accepted as correct  the minority  opinion.  The Court held that the common law  rule of  construction  that the crown was not,  unless  expressly named  or  clearly  intended, bound by  a  statute  was  not accepted as a rule of construction throughout India and even in the Presidency towns it was not regarded as an inflexible rule  of  construction.  It was not  statutorily  recognised either  by  incorporating  in indifferent  Acts  or  in  any General  Clauses  Act; at the most it was relied upon  as  a rule of general guidance in some parts of the -country.  The legislative   practice   established   that   the    various legislatures of the country provided specifically exemptions in  favour  of  the crown whenever they intended  to  do  so indicating   thereby  that  they  did  not  rely  upon   any presumption but only or ,express exemptions.  The Court also observed  that the Privy ,Council in Province of  Bombay  v. Corp. of Bombay ( 2) gave it approval to the rule mainly  on concession  made by Counsel.  The Court then held  that  the archaic rule based on the prerogative an( perfection of  the crown could have no relevance to a democrat, republic;  that such a rule was inconsistent with the rule of law (1) [1961] 1 S.C.R. 158. (2) 73 I.A. 271. (3) [1967] 2 S.C.R. 170. 451 based on the doctrine  of equality and introduced  conflicts and  anomalies. Therefore, the normal construction, that  an enactment applies to citizen as well as to the state  unless it  expressly or by necessery impliciter excepted the  State from  its  operation,  steered clear of  all  anomalies  and consistent with the  philosophy of equality enshrined in the Constitution.   The position now therefore is that a  statue applies   to  State as much it does to a citizen  unless  it expressly or by necessary implication exempts the State from its operation. It is conceded that neither s. II nor any other provision in the Act contains any express exemption.  Broadly stated,  if the legislature intended to exclude the applicability of the Act to the- State it could have easily stated in section  11 itself or by a separate provision that the Act is not to  be

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applied to the Union or to lands held by it.  In the absence of  such a provision, in a constitutional set up as the  one we  have in this country and of which the over,riding  basis is  the broad concept of equality, free from  any  arbitrary discrimination, the presumption would be that a law of which the  avowed object is to free the tenant of landlordism  and to ensure to him security of tenure would bind all landlords irrespective  of  whether  such a landlord  is  an  ordinary individual or the Union. The  question then is whether in the absence of any  express exemption  the  statute  exempts  the  State  by   necessary implication?   The  preamble of the Act  declares  that  its object is not only to abolish big landed estates but also to reform the law relating to tenancies.  Section 2(3) provides that  the  expression "estate", "land-owner"  and  "holding" Will have the meanings respectively assigned to them in  the Punjab  Land Revenue Act, 1887.  Turning, therefore  to  the Punjab  Land Revenue Act, 1887 we find that section 3(1)  of the  Act  defines "estate" as meaning any area for  which  a separate  record-of-rights has been made or which  has  been separately  assessed  to  land revenue or  which  the  State Government  may by general rule or special order declare  to be  an estate.  Section 3(2) provides that "landowner"  does not  include  a tenant or an assignee of land  revenue,  but includes  a person to whom a holding ’has been  transferred, or  an estate or holding has been let in farm under the  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. "Holding" has been defined as meaning a share or portion  of an  estate held by one land-owner or jointly by two or  more landowners.   Since  the  land  in  question  is  admittedly assessed  to land revenue as is clear from the copy  of  the Jamabandhi  produced  by  the  respondent  here  can  be  no question  that the land is estate and the Union of India  is the landowner thereof.  Reverting now to the Abolition  Net, section 2(5) defines "land" as meaning land which is not 452 occupied  as  a  site  of  any  building  in  a  town     or village  and  in occupied or has been  let  for  agriculture purposes  or  purpose  subservient  to  agriculture,or   for pasture.  Section 2(6) defines "land lord" as a person under whom  a tenant holds land and to whom the tenant is  or  but for a contract to the contrary would be liable .to pay  rent for that land.  Clause 13 defines "rent" as meaning whatever is  payable  to a landlord in money, kind or  service  be  a tenant  on account of the use or occupation of land held  by him  Clause  17 defines a "tenant" as meaning a  person  who holds  land  under  another  person, and is  or  but  for  a contract to the contrar would be liable to pay rent-for that land to that other pet-son an clause 19 defines "tenancy" as meaning a parcel of land held by tenant of a landlord. under one  lease  or  one  set of conditions.   I  view  of  these definitions there can be no doubt that the responder was  -a tenant  having  a right of occupancy within the  meaning  of sections  3  And 4 of the Act.  Indeed, all  throughout  the proceedings the position that he was a tenant and the  Union was h landlord and the landowner of the land in question was accept  without any dispute.  Section 3 defines a tenant  as having  a  right  of occupancy in the  land  and  section  8 provides   that   a  tenant  who  immediately   before   the commencement of the Act had a right c occupancy in any  land under  the  Punjab Tenancy Act 1887, a applied  to  Himachal

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Pradesh shall on the commencement of the Act be held to have for  all purposes a right of occupancy in th land.   Chapter III  of the Act deals with acquisition of proprieter  rights by  tenants.  Sections 9 and 10 provide for the  appointment of  compensation officers to carry out the purposes  of  the Act  an  confer power on the State  Government  to  exercise control  an  superintendence over such  officers,  to  issue instructions  for the guidance of compensation officers  and to cancel or revise any the orders, acts and proceedings  of such officers other than those in respect of which an appeal lies  under  this Act.  Section I idea with the right  of  a tenant  to acquire the interests of a landown  and  provides inter  alia  that  a tenant shall on  application  made  the compensation officer at any time after the commencement this Act  be entitled to acquire on payment of compensation.  the right,  title and interest of the landowner in the  land  of the tenant held by him under such landowner.  Sub-section  2 contains certain exemptions with which we are not  concerned in this appeal.  Sub section 3 enjoins upon the compensation officer on a tenant meaning an application under sub-section (1). to determine the amount of compensation payable to  the landowner  in  respect  of the at  in  accordance  with  the provisions  of sections 12 and 13.  Under sub-section 5  the applicant  has  to deposit the amount of compensation  in  a Government  treasury and thereupon the Compensation  Officer has  to issue a certificate declaring the tenant to  be  the landowner   in  respect  of  the  land  specified,  in   the certificate.   Sub section 6 provides that on and  from  the date of the grant of the certificate the tenant shall become the  owner  of  the land comprised in the  tenancy  and  the right, title and interest, of the landowner 453 in the said land -shall determine.  Sections 12 and 13 deal, as  aforesaid,  with  compensation payable  by  the  tenant. Section  14  provides  that  a  tenant  holding  a   tenancy exceeding 12 acres of land can surrender 1/4th of such  land to the landowner whereupon the tenant would become the owner of the rest of the land of his tenancy. There is nothing in these sections which would indicate that they or any of them impliedly exempt the State or its  lands from  their  operation.   Sections 11  to  14  thus  contain provisions  where,  under the tenant, as a result  of  their operation,  acquires  the right, title and interest  in  the land  held by him as a tenant on his paying compensation  to the landowner as fixed by the Compensation Officer. Under  sections 15 to 24, notwithstanding the provisions  of sections  11 to 14, the State Government is empowered  on  a declaration  made  by  it to acquire the  right,  title  and interest of the landowners in the lands of any tenancy  held under  him by a tenant in -respect of such area or  at  such time as may be specified by it in a notification.  They also provide  that  upon such declaration the  right.  title  and interest of such landowner vests in the Government.  Such  a landowner is entitled to compensation as provided in section 16 and onwards on his rights vesting in the Government.   In such  cases the tenant becomes the tenant of the  Government and  has  to  pay rent directly to the  Government  and  the landowner  becomes  henceforth exempt from payment  of  land revenue.   Section  27 then  provides  that  notwithstanding anything contained in section 11 and onwards a landowner who holds  land,. the annual land revenue of which  exceeds  Rs. 125,  the  right, title and interest ’of such  landowner  in such  land  except  such land which is  under  his  personal cultivation  shall  be deemed to have been  transferred  and vested  in the State Government.  Such a landowner  also  is

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entitled   to  compensation  determined  having  regard   to sections 17 and 18 in accordance with the provisions of Sch. II.   Sub-section 4 of section 27 provides that  the  right, title  and  interest  of  the  landowner  conferred  on  the Government  by subsections I and 2 shall be  transferred  by the   State  Government  on  payment  of   compensation   in accordance  with Sch.  1 to such tenant who cultivates  such land.  Sub-sec. 5 provides for rehabilitation grant  payable to  such  small landowners whose right, title  and  interest have  been extinguished and who do not have any other  means of livelihood. A  reading of sections 11 to 27 reveals that they  lay  down three parts of the scheme of abolition of proprietary rights of  land,owners;  (1) under s. II there would  be  a  direct transfer to and -vesting of the right, title and interest of the  landowner  in  the  occupancy  tenant  on  his   paying compensation  as assessed by the Compensation  Officer;  (2) under  section  15 in respect of -lands situate in  an  area specified by Government, there would be a transfer and 454 vesting  of ownership of such lands in the State  Government and  the  tenants of such land becoming the tenants  of  the Government  and (3) under S. 27 where the holding  is  large enough  to  have an annual assessment of over Rs.  125,  the ownership  in  such  lands would be  first  transferred  and vested  in the State Government and thereafter by the  State Government in favour of the tenant. The  contention, however, was that these three ways of  abo- lishing the landowners’ interest and transferring in two out of  these  three methods of the proprietary  rights  to  the tenants suggest that the Act was not intended to affect  the land  owned  or held by the Union or the  State  Government. This contention cannot be accepted, for, there is nothing in these provisions suggestive of their being not applicable to the State or of any distinction between the lands owned  and held  by  citizens and lands owned and held  by  the  State. There  can therefore be no room for any assumption that  the legislature had in mind any such discrimination between  the State and the citizens. Mr.  Ganapathy  Iyer drew Our attention to sections  48  and 54(1)(g)  also but we fail to see how they can  be  relevant for finding out whether the State is by implication exempted from the operation of the Act. It  is clear that the object of the Act was to  abolish  big landed  estates  and alleviate the conditions  of  occupancy tenants   by  abolishing  the  proprietary  rights  of   the landowners  in them and vesting such rights in the  tenants. That  being  the paramount object of the legislature  it  is hardly likely that it would make any discrimination  between the  State and the citizen in the matter of the  application of  the  Act.   This  is especially so  because  if  such  a discrimination   were   to  be  brought  about   through   a construction  suggested by the State it would result  in  an anomaly in the sense that whereas occupancy tenants of lands owned  by  citizens  would  have  the  benefit  of  such   a beneficent legislation occupancy tenants of lands owned  and held by the State would not get such benefit.  An  intention to  bring  about such a discrimination  against  the  latter class  of  tenants cannot be attributed to  the  legislature whose  avowed-  object  was to do away in  the  interest  of social  and economic justice landlordism in the  State.   In view of the decision in Supdt. & Legal Remembrancer v. Corp. of Calcutta(1) the State cannot also claim exemption on  the ground only that the Act does not expressly or by  necessary implication make it binding on the State.

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For the reasons aforesaid, we must hold that the  conclusion arrived  at by the Judicial Commissioner was  correct.   The appeal is dismissed.  No order as to costs. V.P.S.                            Appeal dismissed. [1967] 2 S.C.R. 170. 455