THE UPPER GANGES SUGAR MILLS LTD. versus KHALLIL-UL-RAHMAN AND OTHERS

/(. Al. ,l\'atiatilzti v. The Statt of Bombay

Kapur J.

the same subject matter a.s is contended then a.rt. 161 must prevail over art. 142(1) which is in accord with the constitutional position as above discussed.

In the circumstances of this case I would grant tho petitioner r.•xemption prayed for and proceed to hear tbe special leavP. petition on merits.

BY COURT: In view of t.hc majority ,Judgment, the petition is dismissed.

Petition dismissed.

THE UPPER GA:\GES St;CAH .MILLS LTD.

KHALIL-UL-RAHlllA:\ A.:\'D OTHEHS.

(B. P. SrnHA, C. J., B. P. GA.JENDRAGADKAR,

K. N. WANCHOO, K. C. DAS GUP'l'A aud

DAS J. c. SHAH, ,JJ.)

Tenancy-Adhivasi ri!;ht, acq,,isitioiz of-I'os.~,,ssion cnntin11cd under stay orders of court.~- - tl"hcthcr such poss,·ssion is on bcluilf of courts-- l'crson recorded in posscssicn as thckadar- ti' /ict11rr an occ11pant in his 01en 1'igl:t-U. 1[1]• Z111nindari Alo!iti"ori and J.a11d Reforms Act, i950, (U. }'. I of z950). s. 20(b).

The landlord granted theka to the ccmp;rny for 10 years ending \\'ith 1350 which \\JS rc11e\ve<l up to 1355 (june 1948). On the company·; refusal to vacate on the cxpi1y 01 the theka the l~ndlord lilcd suit for cjcctment under the LT. P. Tenancy Act, l9J9· The suit was resisted by the company on the ground that it has beco1nc hereditary tenant undC'r s. 29 of that 1\ct. The suit \vas decreed on l\ovcmher 3, 1948, an<l an appeal and second appeal a~ainst the dccrl'e al~o f<l.ilc<l, hut the curnµany rcmain<:d in possession of the land on account of stay orJe1s granted by the appellate courts. In execution t'he lamllord obtained formal possesoion on Octohcr 13, 1950, but the company resisted actual ejectment. On July 1, 1953, the com-pany instituted proceedings to recover actual possession of the land under s. 2J2 of the U. P. Zaminclari Abolition and Land Reforn1s Act, 1950, clairning to have become an Adhivasi under s. 20 thereof. Seclion 20 provi1led that every person who was recorded as occupant.of any lanri in the K/Iasra or Khataimi of 1356 shall be called an adhivasi of the land and shall be

entitled to take or retain possession thereof. The company was 1960 recorded in r356 in possession of the land in dispute as theke-dar. The landlord contended that the company had not acquired The Upper Gong" the rights of an adhivasi: (i) as it being in possession in r356 SugaY Mills Ltd. under the stay orders of the courts it was in occupation not on v. its own behalf but on behalf of the court, and (ii) as it was J(halil·ul-Rahman recorded as thekedar in r356 its possession was not on its own &- Othm behalf but on behalf of the landlords, whose thekedar it was.

Held, (per Sinln C. J., Gajendragadkar, Wanchoo ··and Shah, JJ.), that the company had acquired adhivasi rights in the land and was entitled to the possession thereof. Simply because there were stay orders which enabled the company to remain in possession, the possession was not on behalf of the court. It re-mained in possession in the same right in which it was in possession before the decree was passed on November 3, r948. Though the company was recorded in possession as thekedar it was an occupant in its own right and not on behalf of the land-lord. It was open to the court to look beyond the entry of the company as thekedar in the Khasra.

Swami Prasad v. Board of Revcnite, U. P., r960 A.L.J. 241, Parshotam Das v. Prem Na.ain, A.LR. r956 All. 665, Birjlal v. Mitrli Pd., r954 R. D. 175 and Lala Nanak Chand v. The Board of Revenite, U. P., 1955 A.L.J. 408, referred to.

DAs Gu PTA, J.-The company did not acquire the rights of an adhivasi. The word "occupant" means person in posses-sion in his own right and not on behalf of someone else. The benefit under the section is available only to those "recorded" as "occupants". It is not . permissible to look beyond the record to asCertain whether the claimant has been "recorded as occupant". The record in the khasra of the possession "as the-kedar " amounts to record of "possession on behalf of theke-dar's lessor''.

Swamy Prasad v. Board of Revenue, U. P., 1960 A.L.J. 24r, referred to.

CIVIL APPELLATE JuRISDIOTION: Civil Appeal No. 196 of 1952.

Appeal from the judgment and order dated October 3, 1950, of the Court of Board of Revenue, U. P., Alla-habad, in Review Application No.161 of 1949-50.

And

' Appeal by special leave from the judgment and order dated January 21, 1956, of the Court of the Board of Revenue, U. P., Allahabad, in Petition No. 22/1954-55.

· C. B. Aggarwala a.nd C. P. Lal, for the Appellants

The Upp" Ganges(In C. A. No. 196_of 1952) and respondent No. I (in Sugar Mills Ltd, c. A. No. 4 of I 9a9).

Kilalil-u;:R••.,•• Achhru Ram. and Naunit Lal, for the appellants (in cS- Others C. A. No. 4 of 59) a.nd respondents (in C. A. No. 196 of 52).

1960. September 6.

The Judgment of Sinha. C. J.,

Ga.jendra.ga.dkar, Wa.nchoo a.nd Shah, JJ. was deli-vered by

Wanciloo J. W ANCHOO J.-.These two connected appeals will be disposed of by one judgment. Appeal No. 196 of 1952 is by the Upper Ganges Sugar Mills Ltd. (here-inafter ca.lied the Company) while appeal N0. 4 of 1959 is by Mohd. Khalilul Rehman and others (here-inafter ca.lied the landlords). The brief facts necessary for present purposes a.re thes.e. Mukhtiar Ahmed, father of the landlords, granted theka to the Com-pany in August 1933 (corresponding to 1341 F) of the lands in dispute for a. period of ten yea.rs ending with 1350 (June I 943). The theka contained clause giving option to the Company to get it renewed for five yea.rs a.nd in consequence the theka was renewed for five yea.rs from 1351 ]<' to 1355 (that is upto June 1948). Thereafter the theka provided for option to renew the lease with the lessor. In March 1948, the landlords gave notice to the Company to the effect that the theka would not be renewed after 1355 F.. The Company, however, did not agree to hand over possession to the landlords and consequently suit was filed by the landlords for ejectment of the Company under the U. P. Tenancy Act, 1939. It was resisted by the Company on the ground that it wa.s not thekadar but a. tenant and had become heredi-.ta,ry tenant under s. 29 of the U. P. Tenancy Act. This plea. failed and the suit was decreed on Novem-ber 3, 1948. There was a.n appeal by the Company against the decree. This appeal also failed. Then the Company went up in second appeal to the Boa.rd of Revenue and eventually the second appeal was

dismissed on July 22, 1950. -During all this period r96o from. Nov~mber 194~ to July 1950, .the .Company The Upp" Gan remamed m possession of the land m dispute on sugar Mills i account of stay orders obtained from the appellate v. courts. Execution began in October 1950 and it is Khali/cu/-Rahma.n said that possession was delivered to the landlords on -& Othm October 13, 1950 and Dakhalnama was filed on Octo-U'anchoo ]. her 15, 1950. It appears, however, that the Company offered resistance to actual ejectment and this led to proceedings under s. 145 of the Code of Criminal Pro-cedure and the magistrate ordered the attachment of the land in November' 1950 and appointed two super-·aars (caretakers). The Company applied to the Board fo~ certificate which was granted; and that is how appeal No. 196 has come to this Court.In the meantime, U. P. Zamindari Abolition and Land Reforms Act, 1950 (U. P. 1 of 1951), (herein-after called the Act) came into force on July 1, 1953. The Company thereupon instituted proceedings to recover actual possession of the land under s. 232 of the Act read with ss. 12 anq 20 thereof. The Sub-Divisio1ial Officer decided in J auuary 1954 in favour of the Company and ordered delivery of possession to it holding that the Company was entitled to posses-sion both under s. 12 as well as under s. 20 of the Act. The landlords went up in appeal, which was dismissed in January, 1955. The appellate court held that the Company was entitled to recover possession under s·. 12 but did not decide the case put forward by the Company under s. 20. Thereupon there was second appeal to the Board of Revenue which was dismissed in January, 1956 .. The Board also decided the appeal on the basis of s. · 12 and did not consider the case as put forward under s. 20. The landlords then came to this Court and were granted special leave· to appeal in May ,1956; and that is how appeal No. 4 became pending in this Court.

These appeals were heard on November 18, 1959, and this Court remanded the matter and called for finding from the Board whether the Company had acquired any rights under s. 20 of the Act. The find-ing has been submitted-- by the Board and is to the 73

effect tha.t the Compa.ny is entitled to the benefit of

s. 20 of the Act and has acquired Adhiva.si rights anges

s. 20 of Th U pper [-G ]anges Sugar Mills ltd. t ereun er.

v. It is conceded by learned counsel for the landlords Khalil-ul-Rahnia• tha.t if appeal No. 4 fails and the right of tht> Com-'"" Others pa.ny either under s. 12 or under s. 20 is upheld, it would not be necessa.ry to go into a.ppea.l No. 196. On Wanchoo ]. t is view t ompa.ny wou J ave a.cquir ed a. new right under the Act, which would not be affected by the decision in a.ppea.l No. 196, even if it goes a.gs.inst the Company. We shall therefore first deal with appeal No. 4.

Ta.king the case of the Company under s. 20 first,

we have to see whether the Company has acquired Adhiva.si rights thereunder. The relevant pa.rt of

s. 20 for our purpose~ is as follows :-

"Every person who-

(a) ...•.•••....•......•.•.....•...••..••.....••......•.•••...•..

(b) was recorded as occupa.nt,-

(i) of any land (other than grove land CW" land

to which s. 16 applies). in the Khasra or khatauni of 1356 F, prepared under ss. 28 and 33 respectively of the U. P. Land Revenue Act, 1901, or who was on the date immediately preceding the date of vesting entitled to regain possession thereof under cl. (c) of sub-s. (l) of s. 27 of the United Provinces Tenancy (Amendment) Act, 1947, or

(ii) ............... ··: ........................................ .

shil.11 unless he has become bhumidar of the land under su b-s. (2) of s. 18 or an asami under cl. (h) of s. 21, be called adhivasi of the land and shall, sub-ject to the provisions of this Act, be entitled to take or retain possession thereof."

Section 232 of the Act gives right to an Adhivasi to

whom cl. (b) of s. 20 applies to apply within thirty months from the date of vesting to the Assista.nt Collect-Or in-charge of the Sub.Division for putting him in possession of the land of which he is tho Adhi-vas1.

The question therefore that a.rises is whether tho Company was recorded as occupant of the la.nd in dispute which is undoubtedly not grove land or land

to which s. 16 applies. The word 'occupant' used in '9[60 ]this part of the Act is not term of art and has not The upper Ganges been defined anywhere in the Act or in the U. P. sugar Mills Ltd. Tenancy Act or in the Land Revenue Act. It must . v. therefore be given its ordiliary dictionary meaning Khaltl-ul-Ra~man which is "a person in occupation". In order there-& Others fore that the Company can take the benefit of s. 20 it Wanchoo 1. should have been recorded in occupation of the land in dispute in the year 1356 F. The only limitation that has been placed by judicial decisions on this meaning of the word "occupant" is that the person should be iD' occupation in his own right and not on behalf of someone else. (See Swami Prasad and ano-ther v. Board of Revenue, U. P. ([1]) ). So long therefore as person has been in occupation in the relevant year in his own right (and not on behalf of someone else) he will be entitled to the rights conferred under s. 20 of the Act. Learned counsel for the landlords however contends that the Company was not in possession in its own. right and his argument in this connection is two-fold. Firstly, it is submitted that the Company was ordered to be ejected on November 3, 1948, which was in 1356 F. 'l'hereafter it remained in possession because of the stay orders passed by the appellate courts to which it went in appeal successive-ly. Therefore even though the Company was in occupation throughout 1356 its possession after November 3, 1948 was not on its own behalf but on behalf of the Court. Secondly, it is urged that as the Company was recorded as thekadar in 1356 F, its possession was not on its own behalf but on behalf of the landlords, whose thekadar it was.

We are of opinion that there is no force in either of these contentions. So far as the first contention is concerned, all that had happened after November 3 1948, is that the Company got stay orders from th~ appellate courts and remained in possession as before till July 1950, when its second appeal before the Board of Revenue was finally dismissed. It cannot however, be said simply because there were stay orders as result of which the Company continued to (1) 196o A.L.J. 241.

'~6 " remain in p0sRession that it was in possession on Tl It [,. ]v tptr [-]-· frll11f'(_\ . hohalf . of I t.hc (' court .. fn such circum8tances , , the posSPS· s"r"' Mi!ls L.td. SHHl o t HJ .. ompany, though II cnntm1wd becau8e of · '"· the Hfay orders, cannot be hPld to be on lwhalf of the l\J,,1/1l-11l-Ha:,m,u1 court.; and it must be in occupati<>ll in the right as-& 01[1]"'·' Herted by it, even though if it had not obtained the 1"'0 1 stay orders it would not lnwe remained in· possesRion. ir.""Learned coirnsd for the landlords in this connection reli<'d on Parshotam Das v. Prem Narain('). That c<ise, ho.1c,·cr, i8 diHtinguishable because in that caso receiver had been appointed and tho person record-ed in occ11patiu11 of th<' land wa~ h<.'ld to be the agent of the receiver. Reliance was also placed on deci-sion of the 801~rd of J:evenun in Hirjlal , .. .Murli Pd.('), where it was held thBt where ·a person is rccordcd as occupant in 1356 F, Lccause of possesnion acrpiiretl on t.he basiH of stay ordt•r issued Ly court, his po,si;s,ion will be deemed to Le on behalf of the court and will therefore not qualify him for acquisition of the rights of 1rn Adhivasi under s. 20. The fac!H in thi<t ease were somewhat different inas-much as there was reclclivery of possession and that is how the p<'rson to whom possession was redelivered was recorded in the rm·en•a• r.ecords in 1356 as occupant. But if that case means to lay down that peroon who remains in possession because stay order !ms lwen pa.sscd by an appellate court must be deemed to be in possession on behalf of the court, it is incorrect.: In this cas0 the Company was in posses-sion from before N ovem uer 3, HJ48, and rem<\ined in possession tlwreafter ut•cause certain stay orders wero passed by the appellate courts. In the circumstances it must. ue' held tu have remained in possession in the ·same right in 11 hich it was in possession before ::\ovem-Ler 3, 1948, and its possession thereafter cannot be said to be on he half of the court.

The next argument on behalf of the landlords is that as the Company was recorded as thekadar in 1356 in t.hc revenue records it mtrnt be held to ha,·e remained in possession on behalf of the landlord~ whose thrkadar it was, In this connection reliance (1) A.LR. 1956 AIL 665. (2) [1954] R.D. in

was placed on Lala Nanak Chand v. The Board of 1960 Revenue, U. P. ([1]), where it was held that what . . . Id The U ppcr ppcr Ganges s. 20(b) reqmres IS t at there s ou an entry o o 3: Sugar Sugar Mills Ltd. person's name as an occupant in the khasra or khatauni v. ofl356 ]<'; but it is not necessary that the person Khalil-ul-Rahman recorded as an occupant should also have been in been in & Others actnal possession. It is not necessary to consider the correctness of that decision in this case for it is not in is not in Wanchoo f. dispute here that the Company was uot only recorded in possession but was in actual possession in 1356 F. What is contended on behalf of the landlords is that as the Company was recorded as thekadar in 1356 it is not open to the court to go behind th>tt entry and therefore -it must be held that the company was in occupation as thekadar in that year and thus was in occupation on behalf of the landlords and not on its own behalf. In this connection we may point out that the Compa.ny claimed that it was entitled to possession not only as an Adhivasi under s. 20 but also as hereditary tenant under s. 12, which provides that thekadar under certain circumstances becomes here-ditary tenant. To meet the Compa.ny's case under s. 12 the landlords contended th.a't the Company was not thekadar in 1356 because the theka expired on June 30, 1948. The landlords were thus taking con-tradictory positions for the purposes of ss. 12 and 20; in opposition to the claim under s. 12 t}ley said that the Company was not their thekadar in 1356 I<' while in opposition to the claim under s. 20, they said that the Company was not in possession on its.own behalf but as their thekadar. It is argued on their behalf · that for the purpose of s. 20 all that has to be looked into is the entry and nothing more and they· rely on Lala Nanak Chand's case ('J. That case, however, was concerned only with the question whether person r11corded in the revenue records had also to prove actual possession and it was held therein that it was enough that person should be recorded in the revenue records as an occupant and it was not neces-sary that he should also be actually in possession in the relevant year. We need say nothing about the (1) 1955 A.L.J. 408.

that what . The U ppcr ppcr Ganges an entry o o 3: Sugar Sugar Mills Ltd. or khatauni v. the person Khalil-ul-Rahman have been in been in & Others it is not in is not in Wanchoo f.

1960 correctness of that decision in the present rase. But --that case was not concnned with the nature of posses-0The 5 "g"' l:Pf"' 'v.' ,; 11 GaH' / ·' es 1 ·or s1on, · on name behalf ] y, of w ti someone else. 1er 1t · was on person s own The words in ' s. 20(b)(i) ]f Klw!il-ut-llah"""' only speak of a. person being recorded as occupant ~- 01hm and there is nothing in that section as to the nature of the occupancy, namely whether it is on behalf of wa,,,h,o J. the person recorded or on behalf of somebody else. That is matter which in our opinion must always be decided on other evidence fur the entry does 11ot con-template recording the nature of the possession in the sense of its being on behalf of the person recorded or on someone-else' behalf. We ha. vc a.I ready observed that the expression "occupant" is not defined in the Act and it is clear that neither the Act nor the Rules made under it prescrib!l the form in which the entry specified by s. 20(b) should be made. Besides the reforenoe to the theka was bound to be continued even after its termination so long as the Company remain-ed in possession and the lekhpal received nu order to change it. Therefore the contention on behalf of the landlords that we cannot look beyond the entry of tho Company as thekadar and must hold on that basis that it was in possession on behalf of the lnnrllords, is incorrect. On the landlords' own showing in this case, the Company was not in JH>SSl'Hsion as tltekadar as the theka bad expried before 1356 I•'. UnrlPr the circumstances we are of opiniou that· the company was recorded as an occupant in 1356 and that tho nature of that occupation was on its own behalf and was uot either on behalf of the court or on behalf of the landlords. Therefore the Cum pa.ny would be enti-tled to Adhivasi rights. On this view it is not neces-sary to decide whether the Company i8 also entitled to the benefit of H. 12. Appeal :-.lo. 4 therefore fails. As appeal ~"- 4 fails, it is not necessary to decide appeal Xo. 196 and that appeal must under the cir-cumstances be dismissed as infructuous. In the circumst.a.nces of these two appeals we a.re of opinion that parties should bear their own costs of the two appeals in this Court. We therefore dismiss tho appeals and pass no order as to costs.

DAS GUPTA J.-I have had the advantage of reading

the J'udgment prepared by my brother Mr. Justice Th u -G Wanchoo -; ut I regret my ma . b')' 1 1ty to agree th at t Suga' ppcr Mills anges Ltd. Upper Ganges Sugar Mills Ltd., the respondent in v. Civil Appeal No. 4 of 1959 is entitled to the benefit of Mrnlil-ul-Rahman s. 20(b) of the U. P. Zamindari Abolition Act. & Othm

The facts have been fully stated by Mr. Justice Wanchoo and it is unnecessary to repeat them. It is common ground that if the Company, the Upper Ganges Sugar Mills Ltd., can get the benefit of s. 20(b) or s. 12 of the U. P. Zamindari Abolition Act the Civil Appeal No. 4 of 1959 must be dismissed _and consequently Civil Appeal No. 196 of 1952 which is by the Company against the decree of ejectmcnt made in favour of the superior landlords must be dismissed as infructuous. The relevant portion of s. 20 is in these words:-

Das Gupta J.

" Every person who

(a) .................... .

(b) was recorded a~ occupant

(i) of any land (other than grove land or land to which s. 16 applies) in the Khasra or Khatauni of 1356 F, prepared under ss. 28 and 33 respectively of 'the U. P. Land Revenue Act., 1901 .......... ..

(ii) """"""." """

shall unless he has become Bhumidhar of the land under sub-s. (2) of s. 18 or an asami under cl. (h) of s. 21 be called Adhivasi of the land and shall, subject to the provision of this Act, be entitled to take or retain possession thereof."

The Khasra and Khatauni have been produced before us and they show that the Upper Ganges Sugar Mills Ltd., has been recorded as in possession of the land in dispute. They also show however that the possession was as "Thekadar ''. What we have to ask ourselves. is whether these entries in the Khasra or Khatauni justify the conclusion that the Company has been recorded as an "occupant " within the mean-ing of s. 20(b).

The word "occupant" has not been defined in the Act and it has to be praperly interpreted on consi-deration of t~e entire scheme and t.he purpose of the

'9[[60 ]]legislation. It was suggested on behalf of the land-n, ~·rpn G""~" lords (Appellants in r. A. Xo. 19fi of 1952) that" OCCU· Sug"' .1/1!/s I.Id. pant" COnnoteR (JPJ"SO!l Wr.o is in pO~Se~sion in his ' own right and not on hehalf of some0ne elRe. This J!l,nlil-ul·llnh"'"' was the view t.aken hy tllf' . .\llalialmd High Co1Jrt in 011" "" Swami Prasad v. Board of Revemie, U. l'. (1). The correctn!'ss of this view haH not hf''·'n l'h;i,llengPd

Dr1.s (; upta } . befcwe US.

Bearing in mind this connotation of the word "occupant" we have to examine the ontries in the Khasra and Khatauni to see w hethcr they amount to the recording of the Company as au" occupant". It .has to be noticed that this benefit under s. 20(b) is under the provisions of the section available tu those who are" recorded" as "occupants" and not to all those who are "occupants". If the fact of being occupants was what was necessary, and roferenco to the records was to· be made only in supporting or resisting any claim on that basis, we could certainly look beyond the record to decide the question. The Legi•lature has thought fit to correlate the benefit to the record as an occupant and not merely to the fact. of being an occupant. The Khasra ur Khati>uni as prepared iu the Uttar Piack~h does not in 11ny case • record any person a.A an "occupant"; that is wliy we h1we to cxamiue tlie entries in the record to sbow whether they record the facts which 11re neceRse.ry to satisfy the connote.t.ion of the word "occupant". Looking at the entries before us l find that thPy record the Upper Gangc·s Sugar J\I ills' possession as Thekadar. Chapter XI of the U. P. Tenancy Act (U. P. XVll of 1939) deals with Thekadar. It seems rnasonablc to bold that in this Chapter, Thek&-dar is equated to farmer of rents, and Theke.dar's possession ordinarily is c,unte1upla.ted to be possession 011 behalf of his lessor. The record in the Khasra of possession " as Thekadar" appears to me therefore to a.mount to record of " possession on behalf of the Thek11.dar's lessor". On the accepted interpretation of the word "occupant" in s. 20 the.t it means person in possession. in his own right and not on (1) 19(>o A.L.J- 24t

'9[[60 ]]

behalf of somebody else, these entries in my opinion '9[[60 ]]must be held to record the Upper Ganges Sugar Mills Th< up-;,-; Ganges Ltd., as an "occupant". The fact that the Theka sugar Mills Ltd. had come to a,n end, and yet, the Khasra continued to v. record the possession as "Thekadar" is, I apprehend, Khalil-ul-Rahman wholly beside the question. · & Others

I cannot see how we can look beyond the actual Das ~~-;1• J. record to ascertain whether the claimant has been "recorded as occupant"; nor can I find any way of holding that possession as "Thekadar" in the record, may or may not mean " possession on behalf of the lessor". Nor do I think it possible to say that" occu-pant " should be interpreted to include even one in possession on behalf of another person. I therefore find it difficult to agree that the Upper Ganges Sugar Mills is entitled to the beuefit of s. 20(b) of the U. P. Zamindari Abolition Act.

As my learned brethren have taken the view that the Company is so entitled to the benefit, foll argu-ments have 'not been heard on the question whether the Company is entitled to the benefit of s. 12 and no arguments were heard in the other appeal, viz., Civil Appeal No. 196/52. I am therefore unable to come to any concluRion as to how these appeals should be disposed of.

ORDER OF COURT. ·In view of the majority Judgment the appeals are dismissed. No order as to costs. -

Appeals dismissed .