PARAS NATH Vs. BOARD OF REVENUE U P

JUDGEMENT

(1.) Having felt doubtful about the principle of law laid down in Lalit Tewari v. Genda Tewari, 1974 Unreported Rev. Cas. 318, that a sub-tenant of a fixed rate tenant with specific authorisation to plant grove would become Asami u/s.21(1)(b) of UPZA and LR Act of 1951 a provision in pari materia with S. 19(b) of U. P. Urban ZA and LR Act (hereinafter referred to as Act), one of us (Hon'ble K.P. Singh, J), referred this petition directed against order of Board of Revenue and others arising out of proceedings started for eviction u/s 202 of the Act for decision by a larger bench.

(2.) Prior to narration of facts it may be examined who are those persons who would become Asamis under sub-cl.(b) of Section 19 of Act. But before doing so it would be better if import of similar provision in ZA and LR Act (Act 1 of 1951) is understood. It is well known that when Zamindari was abolished the Legislature substituted seven classes of tenants under U. P. Tenancy Act besides Sir and Khudkast holder with three tenure holders known as Bhumidhar, Sirdar and Assami. Bhumidhari rights were conferred on these tenants who under U.P. Tenancy Act could be termed as superior class of tenants. Under this Act also their status was maintained by granting them absolute rights including right to transfer, gift or will. Sirdari rights were conferred on tenants who were to say second grade tenants. The Act while granting them absolute rights in land did not confer any right of transfer etc. The third category of tenants consisted of those persons to whom the land was let out and they were known as sub-tenants, tenants of sir or non-occupancy tenants. They had no security of tenure and were exposed to ejectment. Out of this category the Zamindari Abolition Act conferred rights of Adhivasi on tenants of Sir, sub-tenants, recorded occupants of 1356 and those who were in cultivatory possession in 1359. In 1954 even this class was made sirdar. They were rendered immune from eviction and were entitled to retain possession. And in case they were not in possession they were entitled to regain possession under Section 232 of Zamindari Abolition Act. But if they held land of a person who was disabled within the meaning of S.157 of Zamindari Abolition Act then they were conferred rights of Asami u/s21 and were liable to ejectment. But no sub-tenant or recorded occupant of grove land could become adhivasi. Other non-occupancy tenants who were tenants of such lands in which hereditary rights could not accrue under Tenancy Act because they were lands of public utility or pasture land or land covered with water etc. in which casual and seasoned cultivation was done or were mortgagees of superior tenants or non occupancy tenants of intermediary grove land or sub-tenants of grove land were conferred rights of assami u/s. 21 of Zamindari Abolition Act. Such persons were liable to ejectment. When Urban Area Zamindari Abolition Act was enacted the same scheme was adhered to. Although the class of Adhivasis was obliterated but by separate sub-sec. (2) added to Section 19 all those persons who were tenants of Sir or sub-tenants were made Sirdars. Thus sub-section like S. 20 of Z.A. Act 1 of 1951 provided that a person shall become Sirdar only if he did not become Assami under S. 19. Section 19 of the Act like S. 21 of Zamindari Abolition Act confers right of Assami on a person covered in it irrespective of other provisions of the Act. Therefore, this section has an overriding effect and any person covered in various sub-clauses of this section shall be conferred with right of Assami. The opening part of the section reads as under :- Notwithstanding anything contained in this Act, every person, who on the date immediately preceding date of vesting occupied or held in an Agricultural Area as

(3.) In order to attract applicability of this section a person has to satisfy that he was (a) a sub-tenant, (b) of grove land (c) on the date of vesting (d) and he occupied or held the land, (e) in agricultural area. Agricultural area has been defined in sub-sec.(1) of S.2 of the Act. The procedure of its demarcation etc. has been given in Chap. II of the Act. The land in which rights can accrue under the Act has to be situated in this area. The date of vesting in respect of territory mentioned in part A of the Schedule included in a Municipality is 30th June, 1954. Expression occupied or held is associated with being in possession actual or constructive under some right. The word 'held' used in Section 9 of Z.A. Act has been interpreted by Supreme Court to mean lawfully held. See Buddhu Singh v. Bani Bux, 1969 R.D. 407. K.K. Handique v. The Member, Board of Agriculture Income-tax Assam, AIR 1966 SC 1191. It excludes trespasser from it. It has to be understood in this Act in same sense. The word 'occupy' means possession. But it having been used with word 'held' it takes its colour from it consequently both these words have to be understood as denoting a person who has been in lawful possession. Groveland has to be understood according to sub-sec. (16) of S.3 of the Act in the sense it was understood in U. P. Tenancy Act which meant any specific piece of land in Mohal or Mohals having plantation thereon with such number that they preclude or when full grown will preclude, the land or considerable portion thereof from the use primarily for any other purpose in the column of grove. 'Grove holder' is defined in S.205 of U. P. Tenancy Act as a person who has planted a grove on land which was let or granted to him by the landlord for the purpose of planting a grove. Another class of persons who could become grove holders were those who planted grove with written permission of the landlord or were entitled to plant on land let out to them in accordance with local customs. But from this class were excluded sub-tenant, permanent tenure holders, fixed rate tenants etc. So grove land and grove holder under U. P. Tenancy Act were two different concepts. The one could not be confused with another. Grove land as a matter of law may not present any difficulty. But as a fact it depended on number of trees, their location and nature etc. Sub-tenant has not been defined in the Act. But by virtue of sub-sec. (16) of S. 2 of the Act it has to be understood in the same sense in which it was understood under U. P. Tenancy Act. In that it was defined in sub-sec. (22) of S. 3 as a person who holds land from tenant thereof other than a permanent tenure holder or from a grove holder or from a rent free grantee or from a grantee at favourable rate of rent and by whom the rent is, or but for a contract express or implied, would be payable by a person who was entitled to let out. That is he must have been inducted over the land by a person who was entitled under U. P. Tenancy Act to let out. Sub-sec. (22)of S.3 of Tenancy Act specifically debarred certain persons from inducting a sub-tenant. But a fixed rate tenant did not suffer from this disability. He could, therefore, let out land or grove land to a sub-tenant. On the (sic) sub-tenant to whom the land was let out could plant trees either under permission or otherwise in such number that cultivation was precluded from it and it becomes grove land. Where grove was planted with permission the sub-tenant did not become grove holder. He continued to be sub-tenant as he had not committed breach of any term of his lease. That was the situation in Lalit Tewari's case (1974 Unreported Rev Cas 318) (supra). The sub-lessee was specifically authorised by the lease itself to plant grove, therefore, the Division Bench held the lessee to be a sub-tenant of grove land. But what happens when the sub-tenant in contravention of terms of lease or without permission of lessor plants the grove. Does he become a sub-tenant of grove land ? Or to put it differently could a person who was inducted as sub-tenant continue to be sub-tenant and become a sub-tenant of grove land by planting trees on it? In Shyam Behari v. Consolidation Officer, 1974 U.R.C. 317, the trees were planted by the sub tenants presumably without permission of the land holder. It was held that plantation of trees did not extinguish tenancy and, therefore, he continued to be sub-tenant of land. To examine its correctness it has to be seen if a sub-tenant could plant trees or not and its effect. Did the sub-tenancy stand extinguished by planting of trees? Under S.3(11) of Agra Tenancy Act planting of trees by a tenant amounted to improvement. But this was omitted from S.3(8) of U. P. Tenancy Act. Therefore, planting of trees by a tenant in the holding ceased to be improvement. S. 80, however, permitted a tenant other than a non-occupancy tenant to plant trees on his holding. A sub-tenant, therefore, was debarred from planting trees. But if he did so that is acted contrary to provisions of S. 80 then the Act contemplated his ejectment as it amounted to acting in a manner detrimental to land or amounted to violating condition of the lease within meaning of S. 172. But it did not result in extinction of his sub-tenancy. It only rendered him liable to ejectment as sub-tenant and not as trespasser. If it is held that tenancy extinguished or possession of such a tenant became contrary to law, then such a person could acquire rights u/s 180(2) of UP. Tenancy Act. And that would be contrary to scheme of the Act. Even a tenant by planting trees in such a manner as to exclude cultivation did not become grove holder obviously because by own act or omission a tenant could not acquire higher or better rights. How could a sub-tenant then become hereditary tenant u/s 180(2). The act of planting trees, therefore, does not extinguish the tenancy nor it brings into any change in his status and he continues to be sub-tenant liable to ejectment.