Smt. Dev Lata vs Alam etc.

R.S. Pathak, C.J.—A short question arises in this and the connected appeal. Does the expression "such tenant who cultivates such land" in Section 27(4) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, include a sub-tenant in actual cultivation?

One Rana Vidya Bhushan was the landowner of land, the annual land revenue of which exceeded Rs. 125/-. On January 26, 1955, when the aforesaid Act came into force his right, title and interest in such land as was not under his personal cultivation vested in the State Government by virtue of Section 27(1) of the Act. Proceedings were commenced u/s 27(4) of the Act for the transfer of the right, title and interest so acquired. The tenant of the land at that time was Smt. Dev Lata and the sub-tenant was Alam, who was in actual cultivator possession of the land. After an initial round of proceedings which resulted in a remand of the case by the learned District Judge, the Compensation Officer held that Smt. Dev Lata although a tenant, was not in possession of the land, and as regards Alam although he was in cultivator possession he was merely a sub-tenant. Holding that neither satisfied the condition mentioned in Section 27(4) of the Act, he declined to make an order granting proprietary rights in the land in favour of either Smt. Dev Lata or Alam. Two appeals were filed before the learned District Judge, one by each of them, against the order of the Compensation Officer. On June 17, 1971, learned District Judge made an order dismissing the appeal by Smt. Dev Lata and allowing the appeal by Alam. The learned District Judge held that a sub-tenant was included within the expression "tenant" and as Alam was cultivating the land he was entitled to the benefit of Section 27(4) of the Act. This has given rise to the present appeals.

Chapter III of the Act, in which Section 27 occurs, deals with the acquisition of proprietary rights by tenants. Section 11 entitles a tenant, on application made by him to the Compensation Officer, to acquire on payment of compensation the right, title and interest of the landowner in the tenancy land held by him under the landowner. Certain enumerated exceptions have been provided turning on the status or disability of a landowner, but they are not relevant here. The second class of cases where a tenant acquires the right, title and interest of the landowner comprises those cases where a tenant holds tenancy land exceeding 12 acres in area and on application to the Compensation Officer surrenders to the landowner a specified portion of the area and on demarcation and delivery of possession of the surrendered portion to the landowner the tenant becomes the owner in respect of the rest of the tenancy land. The third class of cases is that provided for by Section 27. Section 27 reads:

(1) Notwithstanding anything contained in the foregoing provisions of this Chapter, a landowner who holds land, the annual land revenue of which exceeds Rs. 125 per year, the right, title and interest of such owner in such land shall be deemed to have been transferred and vested in the State Government free from all encumbrances.

(2) Nothing contained in Sub-section (1) shall apply in respect of such land which is under the personal cultivation of the landowner.

(3) The landowner whose rights are acquired under Sub-section (1) by the State Government, shall be entitled to receive compensation which shall be determined by the Compensation Officer having regard to Sections 17 and 18 of this Act, in accordance with the provisions of Schedule II, but in the case of such occupancy tenant who is liable to pay rent in terms of land revenue or the multiple of land revenue, the compensation payable to his landowner shall be computed in accordance with Schedule I.

(4) The right, title and interest of the landowner acquired under-Sub-section (1) or (2) shall be transferred by the State Government on the payment of compensation in accordance with Schedule I to such tenant who cultivates such land.

(5) The State Government shall give rehabilitation grant according to the rules framed under this Act, to such small landowner whose right, title and interest have been extinguished and who does not have any other means of livelihood.

The learned District Judge has pointed to the circumstance that in cases u/s 11 and Section 14, the statute specifically refers to "a tenant other than a sub-tenant" and therefore, he observes, a sub-tenant, who otherwise would be considered to fall within the expression "tenant" has been specifically excluded from the benefit of those provisions. On the other hand, he says, no such clause of exclusion has been inserted in Section 27(4). From that he has inferred that the expression "sub-tenant who cultivates such land" should be construed with a comprehensiveness sufficient to include a sub-tenant in cultivator possession. I find it difficult to endorse the view taken by him.

It seems to me that the provisions of Chapter III are concerned throughout with tenants only and not with sub-tenants. Also, Section 9 provides for the appointment of Compensation Officers for the settlement of disputes between landowners and their tenants. It is beyond dispute that "tenants" here cannot include sub-tenants, because a dispute can be ordinarily contemplated between a landowner and his tenant and not between a landowner and a tenant''s sub-tenant. It is significant that Section 9 speaks of landowners and does not use the expression "landlord". Section 11 is clear in its terms, and excludes a sub-tenant from the benefit of acquiring the right, title and interest of the landowner. Section 14 operates likewise. The legislative intention clearly is that the right, title and interest of a landowner should be acquired by the tenant and not by a sub-tenant. There is nothing in Section 27 which indicates a departure from that policy.

Why did the statute refer to "such tenant who cultivates such land" in Section 27(4) when in Section 11 and Section 14 it refers to a tenant holding land in tenancy and does not describe him by reference to the criterion of cultivation. An analysis of the scheme set out in Section 27 explains why. Section 27(2) contemplates two categories of land, land which is under the personal cultivation of the landowner and land which is not under his personal cultivation. To the former Section 27 does not apply. It applies to the latter. It will be noticed that the Statute does not make this test relevant in Section 11 and Section 14. The criterion for applying Section 27 is that the land must not be under the personal cultivation of the landowner. The right, title and interest of the landowner in such land vests in the State Government and is transferred by the State Government to the tenant who cultivates the land. The words "who cultivates such land" are descriptive of the tenant, and indicate the tenant who holds the land. Section 27, as I have said before, refers to land which is not under the personal cultivation of the landowner but is cultivated by the tenant. It is true that when a tenant sub-lets the land to another, it is the sub-tenant who is in actual cultivatory possession. Possession in fact is not with the tenant. But looked at in contradistinction to the landowner it is the tenant who will be said to cultivate the land when the landowner cannot be described as cultivating it. I am unable to hold that reference in Section 27(4) was intended to a sub-tenant. Chapter III is concerned entirely with the transfer of rights from landowners to tenants.

There is another good reason for coming to that conclusion. In a case where a tenancy and a sub-tenancy have been created in respect of land, different bundles of rights belong to the landowner, the tenant and the sub-tenant in respect of the land. Section 27 provides for the vesting of the landowner''s rights in the State Government, and for payment of compensation to the landowner for such deprivation. Now, if Section 27(4) can be said to convey the right, title and interest in the land to a sub-tenant, the tenant stands deprived of his rights in the land and there is no provision whatever in Section 27 for payment of compensation to him. It is difficult to accept that while the legislature could have contemplated payment of compensation to the landowner no such provision should have been made in respect of the tenant. It was urged for the Respondents that when the sub-tenant acquires the right, title and interest of the landowner u/s 27(4) the tenant now becomes his tenant and therefore no occasion arises of the latter being deprived of his rights in the land. The contention is founded in fallacy because it omits to note that the cultivatory possession of the land continues in the sub-tenant, who according to the construction suggested, steps into the shoes of the landowner. The tenant can no longer be envisaged as a tenant in such circumstances. It the cultivatory possession is with the landowner it is difficult to appreciate how the tenant can be said to hold the land. Section 2(17) of the Act defines a "tenant" as a person who holds land under another person." If Section 27(4) is construed to refer to a tenant and not as including a sub-tenant, upon that construction the sub-tenants'' rights in respect of the land are not affected. u/s 27(1) the right, title and interest of the landowner is deemed to have been transferred and vested in the State Government free from all encumbrances. An encumbrance does not ordinarily include a lease: District Bank v. Webb (1958) 1 W. L. R. 148. The tenancy and the sub-tenancy continue to subsist, the tenant becoming the tenant of the State Government and the subtenant continuing to hold the land under the tenant. When the tenant acquires the right, title and interest in the land u/s 27(4) and becomes the landowner the sub-tenant continues to be his tenant. The relationship between the tenant and the sub-tenant continues to have all the attributes of a tenancy. On such a construction, both reason and justice are served.

In my opinion, the expression "such tenant who cultivates such land" in Section 27(4) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, does not include a subtenant.

Accordingly, I would hold that the Appellant Smt. Dev Lata is entitled on payment of compensation to the right, title and interest of the landowner acquired u/s 27(1) of the Act. The benefit cannot be claimed by the Respondent Alam.

The appeals are allowed, the order of the learned District Judge in each case is set aside and the case is remanded to the Compensation Officer for disposing of in accordance with law. As the point is one of first impression, there is no order as to costs in the appeals.

C.R. Thakur, J:

I Agree.