KALWA Vs. BOARD OF REVENUE RAJASTHAN

JUDGEMENT

(1.) THESE are six writ applications under art. 226 of the Constitution which raise an identical question of law relating to the interpretation of sec. 180 of the Rajasthan Tenancy Act, 1955 (No. 111 of 1955) (hereinafter called the Act of 1955 ).

(2.) THE broad facts leading upto these applications are common and lie within a narrow compass. THE petitioners are khatedar tenants, being the heirs of the deceased Harhet, who was admittedly a khatedar tenant of certain lands, the khasra numbers whereof are mentioned in their respective applications, and it is unnecessary to mention these in detail for the purposes of our decision. It is also admitted that the several respondents in these applications are sub-tenants. THE case of petitioners in all these cases is a common one namely that some time in 1947, 48 their father Harhet, being old and blind, had admitted for only one year the several respondents as subtenants with respect to the respective khasra number, of which they are in possession, and from which they are sought to be ejected. At the expiry of the term of the tenancy the latter were asked to return possession of their respective lands, but they declined to do so as the Rajasthan (Protection of Tenants) Ordinance 1949, (Ordinance No. IX of 1949) had in the meantime come into force and thereby they were protected from eviction. Consequently it was impossible for the petitioners or their father to take any legal proceedings to evict the various sub-tenants until that Ordinance was repealed and the Act of 1955 came into force on the 15th October, 1955. THEreafter Harhet filed an application in each of these cases under sec. 189 of the said Act for ejectment of the respondents sub-tenants. THEse applications were opposed by the respondents. THE Assistant Collector concerned, in whose court these applications were filed in the first instance, allowed them and ordered the ejectment of the respondents. THE latter went in appeal to the Additional Commissioner, Jaipur, from the orders of the Assistant Collector but without any success. THEn they appealed to the Board of Revenue. THE learned members of the Board allowed these applications. THEir main judgment was delivered in case No. 7/bharatpur of 1958 on the 13th June, 1958, against which writ application No. 152 of 1958 has been filed before us while the judgments in the other cases were delivered relying on the view taken in the last mentioned case and thus all the appeals were allowed and the judgments and orders of the Courts below were set aside and the various applications for ejectment were dismissed. THE present writ applications have been filed before us against the aforesaid orders.

(3.) THE question is whether the phrase "granted after the commencement of this Act under Sec. 45," governs the words immediately preceding namely "a lease or sublease or it also governs the words "holding from year to year". THE learned members of the Board obviously thought that it governs both. THErefore it is that they felt persuaded to hold that a tenant or a sub-tenant holding from year to year must be a tenant who acquired that status after the commencement of the Act. We have thought deeply over the matter and have not been able to see our way to concur in this view. In order to be able to put a proper interpretation on this clause, we think that it will be desirable to rewrite this clause in its expanded form. (b) that he is tenant or sub-tenant holding from year to year or he is tenant or sub-tenant holding under a lease or sub-lease granted after the commencement of the Act under Sec. 45 of which the period has expired before the end of the current agricultural year. " It will thus become immediately clear that this clause provides for two contingencies. THE first being that the person sought to be evicted is a tenant or sub-tenant holding from year to year and the second being that he is a tenant or sub-tenant holding under a lease or sublease granted after the commencement of the Act under section 45 which has expired or about to expire during the current agricultural year. We have no doubt that words "granted after the commencement of the Act" are properly relatable to the words immediately preceding them namely "under a lease; or sub-lease and cannot possibly govern the phrase "holding from year to year. THE rules of grammar, to our mind, clearly forbid the latter meaning. Besides, sec. 45 appears to us to provide for fixed term tenancies and not for year to year ones, and therefore could not have been used in relation to year to year tenants. Again, it was conceded before us and, the learned members of the Board also appear to have been of the same opinion, that year to year tenants coming into existence after the commencement of the Act would be liable to be evicted under this clause. If so, we confess to our being entirely unable to discover any sound or rational principle why such a tenant or sub-tenant should be treated as being in a more advantageous position simply because he happened to become such a tenant from before the commencement of the Act. THE only submission of learned counsel for the respondents was that the policy of the legislature was to protect these from eviction. And as to this consideration of alleged policy, we are not at all assured. Sec. 14 of the Act lays down that there shall be three classes of tenants namely (a) khatedar tenants (b) tenants of khud-kash and (c) ghair khatedar tenants. THE last category would cover, "sub-tenants" according to this classification. : THEn sec. 15 lays down the definition of khatedar tenants. This Section, broadly speaking lays down that subject to the provisions of sec. 16, which specifies the lands in which khatedari rights cannot accrue every person who at the commencement of the Act was a tenant of land otherwise than a sub-tenant (the underlinig is ours) or a tenant of khudkasht or who after the commencement of this Act is admitted as a tenant otherwise than as a sub-tenant or a tenant of Khudkasht or is an allottee of land under sec. 101 of the Rajasthan Land Revenue Act 1956, or who acquires khatedari rights under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952, or who has acquired khatedari rights in accordance with the provisions of the Act of 1955 or of any other law for the time being in force shall be a khatedar tenant and shall be entitled to all the rights conferred, and be subject to all the liabilities imposed on khatedar tenants by this Act. THEn some special provisions are made in this very section and in sec. 16 according to which khatedari rights cannot accrue in certain cases. THE only other section which seems to us to be relevant in this connection is sec. 19 which prescribes the condition for conferment of khatedari rights on tenants of khudkasht and sub-tenants under certain conditions. THE proviso to this section, however, clearly lays down that no such right would accrue where the land is held from any of the persons mantioned in sec. 46 of the Act. THE effect of this provision is that no khatedari rights can accrue on a sub-tenant where inter alia a tenant is a minor or a lunatic or an idiot, or what is relevant for our present purposes, is a person incapable of cultivating his holding by reason of blindness or other physical disability or infirmity. In these circumstances it is impossible for us to accept the position that the policy of the legislature is to afford protection to a tenant or a sub-tenant who is merely holding from year to year as such. It is true that a sub-tenant under certain conditions may acquire the status of a khatedar. But if he so acquires it his case will be taken out of the purview of clause (b ). Per contra, however, if a sub-tenant does not acquire the status of a khatedar then the law does not appear to us to give him any special protection. Sub-tenants at the time of the commencement of the Act were not treated or contemplated to be treated as entitled to any special protection. For, if that was so, sec. 15 of the Act would have been worded very differently and indeed would not mention them as not entitled to the status of khatedars in so many words. We, therefore, see no force in the so called consideration of policy, for they seem to operate, if at all the other way about.