Deen Mohammad Mian and Others vs Hulas Narain Singh and Others

Rowland, J.—These are two appeals, one by the plaintiff-landlord and one by the defendant-tenants, which have been heard together as they both raise the same point of law. In both suits the plea was taken that in spite of anything that might be contained in any previous contract between the parties and notwithstanding that a higher rate of rent had been previously realized, the landlords could not lawfully realize produce rent in respect of the holdings in suit at a higher proportion than nine'' twentieths or 18 seers per maund of the total produce by virtue, in one case, of Section 23A (b) and, in the other, of Section 178B, Bihar Tenancy Act, as amended by Bihar Act 8 of 1937. In the one case the Courts below have given effect to this plea; in the other the Munsif gave effect to it, but the Subordinate Judge, modified his decision being of opinion that the relevant sections of Bihar Act 8 of 1937 were ultra vires of the Provincial Legislature. In the latter case out of which Second Appeal No. 392 arises, the Subordinate Judge acceded to arguments on behalf of the plaintiff which may be summarised thus:

First, the new legislation by cutting down the landlord''s share of the produce from 22� seers in the maund to 18 seers in the maund would have the effect of diminishing the landlord''s assets in his estate, thereby depriving him of his property contrary to Section 299, Government of India Act.

Secondly, the new legislation would have the effect of amending the Permanent Settlement contrary to the assurance given to the zamindars. It was beyond the power of the local Legislature to do this.

Thirdly, the new legislation varies the provision of the Bengal Tenancy Act, 1885, an Act passed by the Central Legislature. The Provincial Legislature had not the power to do this without the sanction of the Governor-General in Council.

Fourthly, the new Act changes the law with regard to contract which is a matter on the Concurrent List in Schedule 7, Government of India Act. Such legislation will be ultra vires and inoperative unless the local Act is reserved for the assent of the Governor-General.

Fifthly, agricultural contracts not being specifically mentioned in the Provincial List of subjects and being excluded from the Concurrent List, no provision can be made either by the Central or by any Provincial Legislature affecting a contract governing rent, unless the Governor-General had u/s 104 by public notification empowered either the Federal Legislature or a Provincial Legislature to enact a law with respect to this matter.

The reasons given by the Subordinate Judge may be grouped under two main heads, that is to say, the new legislation is impeached on the one hand as being a breach of the undertakings given to the zamindars in the Permanent Settlement and on the other hand it is impeached as being legislation repugnant to previous India Acts and dealing with a matter not on the Provincial List of subjects.

Under the first head we have to see whether the new legislation contravenes any undertaking given in the Permanent Settlement and secondly, whether assuming that it does so, it is ultra vires of the Provincial Legislatures. The reasoning of the Subordinate Judge which has been developed in arguments before us by Dr. Dwarika Nath Mitter for the respondents is that the zamindar''s share of the proceeds by custom was, before the passing of the Permanent Settlement Regulation, 22� seers in the maund, that is to say, nine-sixteenths of the total produce and for this he has referred us to Haring-ton''s Analysis of the Laws and Regulations, Vol. II, pp. 240 and 245 and Vol. III, p. 294 and to James''s Final Report of the Survey and Settlement operaration in the District of Patna, p. 86 and to Colebrooke''s Supplement to the Digest of Regulations anterior to 1793, p. 192. These are matters of history, but as pointed out by the Special Bench of this Court in Babu Jhalak Prasad Singh and Others Vs. Province of Bihar, , the matter has to be considered with reference to the terms of the Permanent Settlement Regulation itself. The undertaking given to the proprietors was that upon their agreeing to the payment of the assessment which may be required of them, no alteration shall afterwards be made in that assessment, but that they and their heirs and lawful successors shall be allowed to hold their respective estates at such assessment for ever. There was no undertaking given by the Governor-General in Council to the zamindars with regard to their right of realizing any particular proportion of the produce from their tenants. On the contrary, to prevent any misconstruction it was declared in Article 7:

It being the duty of the ruling power to protect all classes of people, and more particularly those who from their situation are most helpless, the Governor-General in Council will, whenever he may deem it proper, enact such regulations as he may think necessary for the protection and welfare of the dependent taluqdars, raiyats and other cultivators of the soil; and no zamindar, independent talukdar, or other actual proprietor of land shall be entitled on this account to make any objection to the discharge of the fixed assessment which they have respectively agreed to pay.

In my opinion, the legislation which we are considering did not contravene any of the provisions of the Permanent Settlement Regulation. But assuming that it did, the question whether it had power to do so falls to be determined on a construction of the Government of India Act of 1935 as held in Babu Jhalak Prasad Singh and Others Vs. Province of Bihar, just cited. It is suggested that the new legislation is an Act making provision for the extinguishment or modification of rights in land including rights or privileges in respect of land revenue, that is to say, that it comes within the subject dealt with in Section 299, Clause (3), Government of India Act, which enacts that no such bill or amendment shall be introduced or moved in a Chamber of a Provincial Legislature without the previous sanction of the Governor in his discretion. But, u/s 109, Clause (2) of the Act, no Act of a Provincial Legislature, and no provision in any such Act shall be invalid by reason only that some previous sanction or recommendation was not given, if assent to that Act was given (where the previous sanction or recommendation required was that of the Governor) by the Governor. The Act which we are considering was assented to by the Governor and, therefore, the objection u/s 299, Clause (3) is without substance.

It has been suggested that the Act in question is invalid as being repugnant to a Governor-General''s Act, namely the Permanent Settlement Regulation and, therefore, u/s 108, Clause (2) there could not � be moved in a Provincial Legislature a bill amending or repugnant to it unless the Governor-General in his discretion gave his previous sanction. The argument seems to be based on a misconception of the meaning of Governor-General''s Act. A Governor-General''s Act appears to be an Act enacted by the Governor-General in the exercise of his powers u/s 44 of the Act. The Permanent Settlement was not such an Act.

It has been suggested that the Governor under the Instrument of Instructions, para. 17, was required to reserve the Act for the assent of the Governor-General as being an Act altering the character of the Permanent Settlement. But u/s 53, Clause (2) of the Act the validity of anything done by the Governor of a province is not to be called in question on the ground that it was done otherwise than in accordance with the Instrument of Instructions issued to him.

The view that I take is in agreement with that of the Special Bench of this Court in Babu Jhalak Prasad Singh and Others Vs. Province of Bihar, and I hold that the Bihar Act which we are considering is not invalid by reason of any conflict or supposed conflict between it and the Permanent Settlement Regulation of 1793.

The other branch of the argument was that it affects contracts regarding rent and that contract is a matter on the Concurrent List of subjects in Schedule 7. Undoubtedly the Act alters the provisions of the Bengal Tenancy Act, 1885, an Act of the Central Legislature. We have to examine the application of the provisions of Section 107, Government of India Act, which deals with such repugnancy differently according as the subject of the new legislation is a subject on the Federal, Provincial or Concurrent Legislative List. If the matter is on the Federal List, the Provincial Government has no power to legislate for it. That is provided in Section 100, Sub-section (1). If the matter is on the Concurrent List, then u/s 100, Sub-clause (2) both the Federal and the Provincial Legislatures have power to make laws with respect to any such matters. If the matter is on the Provincial Legislative List, the Provincial Legislature has and the Federal Legislature has not power to make laws for the province in respect to the matter. If the matter is on the Concurrent List, the local Legislature has power to pass an Act, but in case of repugnancy between new legislation and an existing Indian law, then, if the Provincial law has received the assent of the Governor-General of His Majesty, it will prevail over the previous law. But if it has not received such assent, but only the assent of the Governor, then the previous law will prevail. The result of this is that if the subject-matter of this legislation is a matter on the Concurrent List, then the assent of the Governor only having been obtained, and not that of the Governor-General or His Majesty, the previous law would have to be maintained in force and the new legislation to the extent of the repugnancy would be void. In Schedule 7 to the Act, item 10 of List 3, part 1 comprises contracts including partnership, agency, contracts of carriage and other special forms of contract, but not including contract relating to agricultural land. These matters are on the Concurrent List. Item 21 of List 2 in the same schedule comprises land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant and the collection of rent along with other matters. The argument addressed to us has been that contract is on the Concurrent List and so a Provincial Act should not prevail over a previous India Act affecting contract. It is further said that as the item of contract in the Concurrent List excludes contracts relating to agricultural land, such contracts remain a matter for which there is no provision in any of the three lists and, therefore, neither the Provincial nor the Central Legislature can pass an Act relating to this matter unless the Governor-General u/s 104 empowers such Legislature to enact a law with respect to it. The answer seems to be that the subject described in item 21 of the Provincial List is wide enough to include and does include all contracts relating to land or at any rate all contracts relating to agricultural land and that if there had been no exclusion of the latter class of contracts from item 10 of List 3, there would have been overlapping, the same matter falling into two distinct categories. In fact the subject of contract affecting agricultural land is a wholly provincial subject. I am supported in this view by observations in the decision of the Federal Court in AIR 1941 16 (Federal Court) . Gwyer, C.J. said:

None of the items in the Lists is to be read in a narrow or restricted sense, and that each general word should be held to extent to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it; and in AIR 1941 72 (Federal Court) item 21 of List 2 was held to include succession to agricultural land, this subject being excluded from item 7 of List 3. I am, therefore, of opinion that Section 178B as introduced into the Bihar Tenancy Act by Bihar Act 8 of 1937 was within the competence of the local Legislature as being an. enactment dealing with a subject on the Provincial Legislative List. On that view Second Appeal No. 392 must be allowed, the decision of the Subordinate Judge set aside and that of the Munsif restored. The defendant-appellants to have their costs of the appeal and the second appeal.

In Second Appeal No. 137 similar points are raised and similar considerations will govern them as assuming the land in suit to the agricultural land, but a further point is taken, that the land in suit here is not agricultural land. This point was not taken in the Courts below; indeed the validity of Bihar Act, 8 of 1937 does not appear to have been challenged. But I propose to deal with the question as raised before this Bench.

The rent claimed property is an orchard containing 53 mango trees. In the Record of Bights the defendant is entered as a raiyat having occupancy t rights, and he is described as an occupancy raiyat in the plaint. A raiyat according to the definition in the Bihar Tenancy Act means one who has acquired a right to hold land for purposes of cultivation. In the Record of Eights, the note as to rent is to the effect that the produce is divided in the proportion of to the landlord, and J to the raiyat. The Munsif relied on Section 23A (b), Bihar Ten. Act, and gave the landlord a decree for nine-twentieths of the estimated produce in accordance with that section. The Subordinate Judge revised the findings of the Munsif with regard to the outturn and price while accepting the Munsif''s reasoning as to the proportion in which the produce should be divided.

We are asked to hold that the land in suit is not "agricultural land" that this expression is to be read as limited to land on which by seasonal, ploughing and sowing food crops are grown. In my view, that is too narrow a reading of the expression. The planting of trees on his holding is a right of an occupancy raiyat u/s 23 A, Bihar Tenancy Act. It would be difficult to hold that by exercising this right he changes the character of the land so that it ceases to be agricultural. In Murugesa Chetti v. Chinnathambi Goundan 24 Mad. 421 it was said by Bhashyam Ayyangar, J. that the primary meaning of agriculture is the cultivation of the ground. In PROVINCE OF BIHAR Vs. MAHARAJA PRATAP UDAI NATH SAHI DEO OF RATUGARH AND ANOTHER., the question arose whether receipts called "Bankar" and "Phalkar" were to be deemed income derived from agriculture or agricultural land. After citing from the Shorter Oxford Dictionary the definition of agriculture as "the science and art of cultivating the soil; including the gathering in the crops and the rearing of livestock," Harries C.J. pointed out that "Bankar" was income derived from jungles or jungle land not actually cultivated. The trees had not grown as the result of cultivation, but naturally, without the intervention of human agency. In fact, it was the absence of cultivation that permitted the area to develop into a jungle. So he said, the growth of these trees could not be said to result from the cultivation of the soil. In that view, he held that "Bankar" was not derived from agricultural land or agriculture. In dealing with "Phalkar" his reasoning was similar. "It cannot be said that the fruit gathered is the result of any cultivation, but, on the contrary, it is the result of the absence of cultivation.

The case of an orchard is quite different. Orchard trees ordinarily are, and can be presumed to have been, planted by man after preparation of the ground which is cultivation and seasonal crops are gathered. Fruit trees also require seasonal attention such as pruning and digging of the soil around the roots, and it cannot be said that this ceases to be cultivation merely because the whole tree is not replanted every year. The Judicial Committee of the Privy Council in Kaju Mal v. Saligram AIR 1924 P.C. 1 have held that lands let out for cultivation of tea are lands let out for agriculture. In my opinion the land in suit is agricultural land; it is land from which by preparing the soil and planting and cultivating trees the raiyat expects to enjoy periodical returns in the way of produce for food. That being so, I would say that Section 23-A(b), Bihar Ten. Act, deals with a Provincial subject and cannot be inoperative by reason of any actual or supposed repugnancy to an all-India Act.

The repugnancy suggested in argument is with the Contract Act. Section 67 of that Act enacts that parties to a contract must perform their respective promises unless the performance is dispensed with or excused under the provisions of this Act or of any other law. The section itself exempts from its operation cases in which the performance of the contract is dispensed with or excused under the provisions of any law. Therefore, there is no conflict between this and the provision of any law dispensing with the performance of a particular contract so that even if the disputed legislation be considered to deal with a matter on the concurrent list it will not become invalid by reason of any supposed repugnancy between it and Section 37, Contract Act.

But Section 23-A(b), Bihar Ten. Act, is repugnant to the corresponding provision of the same Act as it stood at the time of the passing of the Government of India Act, 1935: the proportions of produce being '' previously fixed by an Amending Act of 1934 at half and half. Therefore, unless the subject is a matter on the Provincial List, the provisions of the Act of 1934 would have to be given effect to, and the shares of produce should be half and half. On the view that I take, however, that the matter is one on the Provincial List of subjects, the decision of the Courts below ought to be affirmed. I would dismiss this appeal with costs.

Chatterji, J.

These two appeals, of which No. 137 is by the landlord and No. 392 by the tenant, arise out of two suits for produce rent. The parties to the two suits are different and the Courts which tried them were different, but these appeals have been heard together as they involve the same question of law, namely, whether Section 178-B, Bihar Tenancy Act which was enacted by the Bihar I Ten. (Amendment) Act, 1937 (Bihar Act 8 of 1937) is ultra vires of the Bihar Legislature. In Appeal No. 137 the further question is raised, whether the amendment to Section 23-A(b), Bihar Tenancy Act, which was made by the Bihar Tenancy (Amendment) Act, 1938 (Bihar Act 11 of 1938) is ultra vires.

The holdings concerned in the suits lie in permanently settled estates of which the plaintiffs are proprietors. In the suit which has given rise to Appeal No. 392 the plaintiff claimed half share of the produce; while, in the other suit, which relates to a mango orchard the plaintiff claimed three-fourths share of the produce on the basis of the record of rights. In the latter suit both the Courts below passed a modified decree for nine-twentieth share of the produce in accordance with provisions of Section 23-A(b) and 178-B, Bihar Tenancy Act. In the former suit the trial Court gave a decree for nine-twentieth share of the produce according to Section 178-B, Bihar Tenancy Act, but the lower Appellate Court decreed the claim for half share, holding that Section 178-B is ultra vires.

I shall first deal with the tenant''s Appeal (No. 392). In this appeal the learned Advocate-General appeared suo motu on behalf of the Province of Bihar to support the validity of the legislation in regard to Section 178-B. This section runs thus:

Nothing in any contract, express or implied, between a landlord and a raiyat made before or after the commencement of the Bihar Tenancy (Amendment) Act, 1937 shall entitle the landlord to more than nine-twentieths of the produce as rent in respect of an occupancy holding if rent is payable in kind by division of the produce.

The Bihar Act 8 of 1937 was passed by the Bihar Legislature under the provisions of the Government of India Act, 1935 and it is not disputed that the validity or otherwise of the said Bihar Act must be determined with reference to the provisions of the Government of India Act.

In the Court of Appeal below various grounds of attack were taken against the validity of the enactment. But Dr. D.N. Mitter who appears before us on behalf of the landlord-respondent confines his arguments to the following two points; (1) the revenue fixed by the Permanent Settlement having been assessed on the basis that the zamindar was to get 22� seers and the raiyat 17� seers out of every maund of the produce of the soil, the zamindar''s right to the proportion of 22� seers could not be curtailed by any subsequent legislation; (2) Section 178-B, Bihar Tenancy Act, relates to a matter which is comprised in Item 10 of the Concurrent Legislative, List mentioned as List 3 in Schedule 7, Government of India Act, and as the Bihar Act 8 of 1937 was passed without the assent of the Governor-General, Section 178-B, which is repugnant to the provisions of the Permanent Settlement Regulation 1 of 1793, is void u/s 107, Government of India Act, 1935.

With regard to the first point, the argument is that under the Permanent Settlement Regulation 1 of 1793 the revenue was fixed for ever and as the assessment of revenue was made on the basis that the zamindar was to get 22� seers and the raiyat 17� seers out of every maund of the produce, the effect of enacting Section 178B is to diminish the rights of the zamindar conferred by that Regulation. Reference is made to Harrington''s Analysis Vol. II, p. 245 which shows that the revenue was assessed on the basis that the zamindar was to get 22� seers in the maund out of the produce of the soil.

The reply given by the learned Advocate-General is that, in the first place, all that the Regulation 1 of 1793 provided was that the revenue should be fixed for ever and that there is nothing in that Regulation which prevents the Legislature from passing any legislation touching the contractual relationship between the zamindar and the raiyat. In the second place, he argues that even assuming that Regulation 1 of 1793 conferred any such right on the zamindar, as is now contended for, Section 299(3), Government of India Act, gives power to the Legislature to make legislation affecting such right. That section runs as follows:

No Bill or amendment making provision for the transference to public ownership of any land or for the extinguishment or modification of rights therein, including rights or privileges in respect of land revenue, shall be introduced or moved in either Chamber of the Federal Legislature without the previous sanction of the Governor-General in his discretion, or in a Chamber of a Provincial Legislature without the previous sanction of the Governor in his discretion.

In my opinion both the grounds taken by the learned Advocate-General are well founded. To determine what rights were conferred on the zamindar by the Permanent Settlement we must look to the provisions of Regulation 1 of 1793. Any investigation into the previous history as to what basis was adopted for fixing the revenue is in my opinion quite irrelevant. Now, is there any provision in Regulation 1 of 1793 which gives the zamindar the right which is now claimed by the plaintiff? Dr. Mitter relies on Articles 3, 4, 5, and 6 of the Regulation which merely provide in substance that the revenue is to remain unaltered for ever. Assessment of revenue is a matter entirely between the Crown and the zamindar. What rent should be paid by the raiyat to the zamindar is a matter between the zamindar and the raiyat and depends upon contract between them. What justification is there for supposing that the mere fact that by Regulation 1 of 1793 the revenue was fixed for ever will prevent the Legislature from passing any legislation relating to contracts between the zamindar and the raiyat? On the contrary, Article 7 of the Regulation provides inter alia:

It being the duty of the ruling power to protect all classes of people, and more particularly those who from their situation are most helpless, the Governor-General in Council will, whenever he may deem it proper, enact such Regulations as he may think necessary for the protection and welfare of the dependent taluqdars, raiyats and other cultivators of the soil: and no zamindar, independent taluqdar, or other actual proprietor of land shall be entitled on this account to make any objection to the discharge of the fixed assessment which they have respectively agreed to pay.

No doubt this article leaves the power of making necessary legislation to the Governor-General in Council and it may not therefore be applicable to the present case, because here the impugned Act was not passed by the Governor-General in Council. But I refer to this article simply to demonstrate the fallacy of the argument advanced. Dr. Mitter, however, contends that Article 7 authorises only such Regulation as the Governor-General may think necessary for "the protection and welfare of the dependent taluqdars, raiyats and other cultivators of the soil." In other words, the Governor-General in Council may make only such legislation as may be necessary to prevent the zamindar from imposing any illegal taxes such as abwabs. Emphasis is laid on the words "protection and welfare. There may perhaps be some force in this contention, but it is unnecessary to decide the point, because, as I have said, the article has no application to the present case.

The present case is olearly covered by Section 299(3), Government of India Act. It is suggested that the Bihar Act 8 of 1937 was introduced into the Chambers of the Bihar Legislature "without the previous sanction of the Governor in his discretion," which is required by Section 299(3). But the Act received the assent of the Governor and therefore the defect is cured by Section 109(2), Government of India Act, which runs thus:

No Act of the Federal Legislature or a Provincial Legislature, and no provision in any such Act, shall be invalid by reason only that some previous sanction or recommendation was not given, if assent to that Act was given:

(a) where the previous sanction or recommendation required was that of the Governor, either by the Governor, by the Governor-General, or by His Majesty;

(b) where the previous sanction or recommendation required was that of the Governor-General, either by the Governor-General or by His Majesty.

The next argument of Dr. Mitter is that Section 178B relates to contract which falls within item 10 of the Concurrent List. That item comprises:

Contracts including partnership, agency, contracts of carriage and other special forms of contract but not including contract relating to agricultural land.

This item thus expressly excludes contracts relating to agricultural land. It cannot, therefore, be argued with any show of reason that the contract referred to in Section 178-B falls under item 10.

On the other hand, the learned Advocate-General argues that the matter is covered by item 21 of the, Provincial Legislative List called List 2. That item runs as follows:

Land, that is to say, rights in or overland, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonisation; Courts of Wards; encumbered and attached estates; treasure trove.

This item expressly covers land tenures, including relation of landlord and tenant, and the collection of rents. Dr. D.N. Mitter suggests that ''land tenures'' means tenures held by tenure-holders. According to Wharton''s Law Lexicon ''tenure'' means "the mode of holding property." The term ''tenure holder'' is used in the Bihar Tenancy Act for the purpose of classification of tenants. The Government of India Act, which is applicable to the whole of India, cannot be construed in such a limited manner. There may be Tenancy Acts in which we do not find the term ''tenure-holder''; for instance, in the C.P. Tenancy Act (11 of 1898), which is applicable to the district of Sambalpure in the Province of Orissa, ''tenure-holder'' does not at all appear in the classification of tenants. Apart from ''land tenure'', we have got the words "the relation of landlord and tenant, and the collection of rents" in item 21 of List 2. The Bihar Tenancy Act is an Act relating to the law of landlord and tenant, and Section 178-B makes a provision for the realisation of produce rent.

In AIR 1941 16 (Federal Court) , their Lordships of the Federal Court had to consider the question of the validity of the Regularization of Remissions Act, 1938 (14 of 1938) passed by the Legislature of the United Provinces. The object of that Act, as it appears from the judgment, was to validate certain remissions of rent granted by some previous order of the Government. Their Lordships held that "Remissions of rents" is a matter which falls within item 21 of List 2.

If remission of rents falls within item 21 of the Provincial List, there is no reason why reduction of rents will not also fall under that item. Here the effect of Section 178-B is merely to reduce the rents. I have, therefore, no doubt that the matter covered by Section 178-B, falls within item 21 of List 2. Consequently, it was within the competence of the Bihar Legislature to enact Section 178-B in exercise of the powers conferred by Section 100, Government of India Act.

I now come to the landlord''s Appeal (No. 137 of 1941). In this case the Courts below have relied on the provisions of both Sections 23-A (b) and Section 178-B, Bihar Tenancy Act, though the trial Court does not mention these sections in its judgment. Of these two sections the more appropriate section applicable to the present case is Section 23-A (b). That section stands thus:

Notwithstanding anything contained in Section 23, when a raiyat has a right of occupancy in respect of any land:

* * * * * (b) If the rent of such land is paid in any of the ways specified in Sub-section (1) of Section 40, the landlord and the raiyat shall have equal shares in the timber and [the landlord shall have nine-twentieths and the raiyat shall have eleven-twentieths in the flowers, fruits and other products of all trees or bamboos growing en such land whether planted before or after the commencement of the Bihar Tenancy (Amendment) Act, 1934, but the raiyat shall not be entitled to plant any tree or bamboo on such land without the consent of the landlord and neither the raiyat nor the landlord shall, without the consent of the other, be entitled to cut down or appropriate any such tree or bamboo.

This section, without the words "the landlord shall have nine-twentieths and the raiyat shall have eleven-twentieths" appearing within the square brackets, had been inserted by Section 9, Bihar Tenancy (Amendment) Act, 1934, (Bihar and Orissa Act 8 of 1934), this Act having been passed with the assent of the Governor-General. The words within the square brackets were added by Section 9 (ii), Bihar Tenancy (Amendment) Act, 1938 (Bihar Act 11 of 1938). What is impugned is not the entire Section 23-A (b), but only the amendment made by the Bihar Act 11.1938.

The question of the validity of this amendment does not appear to have been considered by either of the Courts below. Mr. M.N. Pal, for the appellant has raised this question, and in addition to the arguments put forward by Dr. Mitter in the other appeal, he has raised a further point. He argues that the holding concerned in this ease is a mango orchard and is, therefore, not agricultural land. Consequently, the case clearly falls under item 10 of the Concurrent List, List (3).

The first objection to this argument is that in the record of rights the status of the defendant is shown as kaimi that is to say, an occupancy raiyat, and in the plaint itself he has been described as a raiyat. According to Section 5(2), Bihar Tenancy Act "raiyat" means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family I or by hired servants, or with the aid of partners, and includes also the successors in interest of persons who have acquired such a right.

It is suggested that the expression "raiyat" has been used in the plaint in the more comprehensive sense signifying a tenant. But taken along with the record of rights, the statement in the plaint is clear enough to indicate that the defendant was admitted to be an occupancy raiyat. Both the Courts below have applied the provisions of Sections 23-A(b) and 178-B on the assumption that the defendant is an occupancy raiyat, and no suggestion to the contrary appears to have been made in either of the Courts. In this second appeal we must, therefore, proceed on the footing that the defendant is an occupancy raiyat. The fact that there is a mango orchard on the land at present does by no means show that the land, when it was originally let out, was let out for purposes other than that of cultivation. In this view the land comprised in the holding must be deemed to be agricultural land, and it is unnecessary to express any opinion as to whether orchard generally can be said to be agricultural land.

Next, assuming that the holding cannot be said to be agricultural land, does the case really fall under item 10 of List 3? This item relates to contracts generally. On the other hand, item 21 of List 2 specifically refers to the relation of landlord and tenant and to the collection of rents. The ordinary rule of construction of statutes is that where in particular statute there are general as well as special provisions relating to a particular matter, the special provision will prevail. Here item 10 of List 3 is a general provision relating to contracts which, by reason of the comprehensive nature of the words used, may be applied to the matter covered by Section 23-A(b). But, on the other hand, we find in item 21 of List 2 specific provisions touching the relation of landlord and tenant and the collection of rents. In my view, therefore, this special provision, that is to say, item 21 of List 2 will apply to the present case. In my opinion the amendment to Section 23-A (b) made by the Bihar Act 11 of 1938 was perfectly within the competence of the Bihar Legislature.

For the aforesaid reasons I agree with my learned brother that appeal No. 892 should be allowed and appeal No. 137 dismissed.

The question arising in these appeals involves substantial points of construction of the Government of India Act, 1935 and we would grant a certificate to the plaintiff u/s 205(1) of that Act.