Research › Browse › Judgment

Allahabad High Court · body

1962 DIGILAW 32 (ALL)

Harbheji v. Sukhram Singh

1962-02-08

B.MUKERJI, JAGDISH SAHAI

body1962
JUDGMENT Jagdish Sahai, J. This is a plaintiff's Special Appeal which arises in the following circumstances : 1. The plaintiff-appellant had filed a suit for ejectment under Section 202 of the U.P.Z.A. Act (hereinafter referred to as the Act) against the defendants-respondents on the allegation that the plots in dispute were her sir plots which had been let out to the defendant-respondents by an agreement dated the 14th of Sept. 1947, on rent and that the defendant-respondents, who were non-occupancy tenants from year to year under the U.P. Tenancy Act and assamis under the Act, were tenants liable to be ejected. The suit was contested inter alia, on the ground that Shishpal Singh, the husband of the plaintiff-appellant was not suffering from chronic fistula and was not incapacitated from cultivating the land and further that the rights of the defendant-respondents had matured into sirdari rights in respect of the land in suit. The trial court (the Assistant Collector) dismissed the suit with costs on the finding that the defendants were not asamis of the land in dispute. The first appellate court (the learned Civil Judge, Aligarh) reversed the decree of the trial court and decreed the suit with casts. On a Second Appeal, Balram Upadhya, J. set aside the decree passed by the first appellate court and restored that of the trial court dismissing the suit of the plaintiff-appellant by his judgment and decree dated the 19th of Feb. 1958. On leave being granted this special Appeal is directed against the decree passed by Balram Upadhya, J. 2. It would contribute to a correct decision of the case if it were mentioned at the very outset that the finding of fact recorded by the first appellate court, which is binding on us, is that in fact Shishpal Singh, the husband of the plaintiff-appellant suffered from chronic fistula and was incapacitated from cultivating the land. 3. After the suit had been filed, U.P. (Amendment) Act (No. XX of 1954) (hereinafter referred to as the Amending Act) was passed and came into force on the 30th of Oct. 1954. It amended several sections of the Act including Secs. 21, 157 and 202. Sec. 5(2) of the Amending Act reads as follows: "(2) For Cl, (h) of sub-sec. After the suit had been filed, U.P. (Amendment) Act (No. XX of 1954) (hereinafter referred to as the Amending Act) was passed and came into force on the 30th of Oct. 1954. It amended several sections of the Act including Secs. 21, 157 and 202. Sec. 5(2) of the Amending Act reads as follows: "(2) For Cl, (h) of sub-sec. (1) the following shall and be deemed to have been substituted with effect from the date of commencement of the Principal Act - (h) a tenant of Sir of land referred to in sub-Cl. (a) of Cl. (i) of the explanation under Section 16, a subtenant referred to in sub-Cl. (ii) of Cl. (a) of Section 20 of an occupant referred to in sub-Cl. (i) of Cl. (b) of the said section where the land-holder or if there are more than one land-holder, all of them were person or persons belonging - (a) if the land was let out or occupied prior to the ninth day of April, 1946, both on the date of letting or occupation as the case may be, and on the ninth day of April, 1946, and (b) if the land was let out or occupied after the ninth day of April, 1946, on the date of letting or occupation, to any one or more of the classes mentioned in sub-sec. (1) of Sec. 157." 4. The effect of this section is that the amended Section 21 would be deemed to have stood on the statute book right from the date of the commencement of the Act and the original Section 21 would be deemed never to have existed. It may, however, be stated that there is no provision in the Amending Act analogous to Section 5 in respect of either Section 157 or Section 202 of the Act. Sec. 202(1) (f), after amendment, reads as follows: "202(1) Without prejudice to the provisions of Section 338 an asami shall be liable to ejectment from his holding on the suit of the landholder, on the ground or grounds - (f) that he belongs to the class mentioned in Cl. (h) or sub-sec. (1) of Section 21, sub-sec. (1) or Cl. Sec. 202(1) (f), after amendment, reads as follows: "202(1) Without prejudice to the provisions of Section 338 an asami shall be liable to ejectment from his holding on the suit of the landholder, on the ground or grounds - (f) that he belongs to the class mentioned in Cl. (h) or sub-sec. (1) of Section 21, sub-sec. (1) or Cl. (b) of Section 133 and that- (i) the land-holder wishes to bring the land under his personal cultivation and in cases where the lease is for a fixed term such term has expired, or (ii) the disability has determined." The unamended Sec. 202(f) was in the following words: "202(1) Without prejudice to the provisions of Section 338 an asami shall be liable to ejectment from his holding on the suit of the land-holder, on the ground or grounds - (f) that he belongs to the class mentioned in clause (h) of sub-sec. (1) of Section 21 or Cl. (b) of Section 133 and that- (i) the landholder wishes to bring the land under his personal cultivation and in cases where the lease is for a fixed term such terms has expired, or (ii) the disability has determined." The amendment in Section 202 of the Act, so far as the present case is concerned, is immaterial. Even in the unamended section, like the amended one, it was clearly provided that if a land-holder belonged to the class mentioned in Cl. (h) of sub-sec. (1) of Section 21, he could maintain a suit for ejectment of an asami if the land was required for his or her personal cultivation or if the disability from which he or she was suffering had determined. Therefore, the suit giving rise to this appeal would be maintainable if the plaintiff-appellant could be included in the class mentioned in Cl. (h) of sub-sec. (1) of Sec. 21. We have already said above that the amended Section 21 will be deemed to be on the statute book from the date of the commencement of the Act. Therefore, both the unamended Section 202 (f) or its amended substitute can only refer to Cl. (h) of sub-sec. (1) of Section 21 as it stands today, i.e., after the amendment and not to the original one. Therefore, both the unamended Section 202 (f) or its amended substitute can only refer to Cl. (h) of sub-sec. (1) of Section 21 as it stands today, i.e., after the amendment and not to the original one. The amended Sec. 21(1) (h) reads as follows: "21 (1) Notwithstanding anything contained in this Act, every person, who on the date immediately preceding the date of vesting, occupied or held land as - (h) a tenant of sir or land referred to in sub-Cl. (a) of Cl. (i) of the explanation under Section 16, a subtenant referred to in sub-Cl. (ii) of Cl. (a) of Section 20 or an occupant referred to in sub-sec. (1) of Cl. (b) of the said section where the landholder or if there are more than one landholder, all of them were person or persons belonging - (a) if the land was let out or occupied prior to the ninth day of April 1946, both on the date of letting or occupation, as the case may be, and on the ninth day of April, 1946 and (b) if the land was let out or occupied after the ninth day of April, 1946, on the date of letting or occupation, to any one or more of the classes mentioned in sub-sec. (1) of Sec. 157. (Italicised by us) shall be deemed to be an asami thereof." 5. We have next to find out whether the words italicised relate to the class mentioned in the amended Section 157 or to the unamended section. The Legislature amended Secs. 21 and 157 simultaneously. It is therefore obvious that it could not have referred to the unamended Section 157 when it knew that the same (unamended Sec. 157) was no longer the law and had been superseded by the amended section. We are, therefore, satisfied that the words italicised have reference to the classes mentioned in the amended Sec. 157. It was contended that the words italicised should be so read as to refer to classes mentioned in the unamended Section 157 in connection with cases which were filed before the amendment and to the amended section in cases which were filed after the amendment. In our judgment, the submission is clearly untenable. The same words cannot have two different meanings at two different points of time nor can the meaning of the words italicised contract and expand from case to case. In our judgment, the submission is clearly untenable. The same words cannot have two different meanings at two different points of time nor can the meaning of the words italicised contract and expand from case to case. If the submissions made by the learned counsel for the respondents were accepted, it would lead to anomalous and absurd results. Besides such a construction would be in the teeth of the well known canons of interpretation of statutes. A provision in an Act can have only one well defined meaning and two different meanings cannot be attributed to the same words in order to meet two different situations. Learned counsel for the respondents strenuously contended that the amended Section 157 has not been made retrospectively applicable and consequently for cases which were instituted before the amendment, the unamended Section 157 would apply. This argument found favour with Balram Upadhya, J. It is true that normally a statute cannot have retrospective operation unless so expressed but it is well known that the legislature can provide for retrospective operation of a statute or a provision in it by distinct and necessary implication (see Maxwell on Interpretation of Statutes, 1953 Edn., p. 213, Sec. 4(p.) see also Inder Singh v. State of Rajasthan, A.I.R. 1957 SC 510 and Jagannath v. Board of Revenue, 1955 ALJ p. 276 (F.B). 6. We have already held above that the words italicised in Sec. 21(1) (h) have reference to the amended Sec. 157. Consequently we consider it reasonable to conclude that Section 157 (1) is retrospective in its application. With great respect to Upadhya, J., we are unable to hold to the contrary. 7. The conclusion that we have arrived at also finds support from the fact that the words "to any one or more of the classes mentioned in sub-sec. (2) of S. 10" occurring in Cl. (h) of the unamended Sec. 21(1) have been omitted in the new section. The omission of these words by the Legislature must be held to be intentional. The classes of persons mentioned in sub-sec. (2) of Section 10 of the Act are also mentioned in the amended Sec. 157. Consequently, the fact that words "to any one or more of the classes mentioned in sub-sec. The omission of these words by the Legislature must be held to be intentional. The classes of persons mentioned in sub-sec. (2) of Section 10 of the Act are also mentioned in the amended Sec. 157. Consequently, the fact that words "to any one or more of the classes mentioned in sub-sec. (2) of Sec. 10" have been omitted is highly suggestive of Sec. 157(1) being retrospective and the words italicised in Sec. 21(1) (h) having a reference to the amended section. 8. In the end it may be stated that there is good authority for the proposition that an Act designed to protect against acts of a harmful character may be construed retrospectively if the language demands such an interpretation even though it may equally have a prospective meaning see State of Bombay v. Vishnu Ramchandra, A.I.R. 1961 SC 307. It is also well known that a remedial or a beneficient provision must be very liberally construed See Garikapati v. Subbiah Choudhry, A.I.R. 1957 SC 540 and Bishwambhar Singh v. State of Orissa, A.I.R. 1954 SC 139. That the amended Section 157 is a remedial or beneficient provision cannot be doubted. The Preamble to the Amending Act (U.P. Act No. XX of 1954) reads as follows: "Whereas it is expedient to amend the U.P. Zamindari Abolition and Land Reforms Act, 1950, and other laws relating to land tenure for the purposes hereinafter appearing:" (italicised by us). 9. The words "hereinafter appearing" relate to the various provisions that have been made in the Amending Act. Consequently, it can be safely inferred that one of the purposes for which Section 157 was amended was to confer benefit on married women whose husbands suffered from the disqualifications mentioned in Cls. (c) and (d) of Section 157 and to remedy the hardship against them of not being allowed to let out their lands. On this ground also, we must hold that the amended Section 157 is retrospective in its application and that the words italicised in the amended Sec. 21(1) (h) refer to the amended Sec. 157. 10. The only question that remains to consider is whether the plaintiff-appellant can fall in one of the classes mentioned in the amended Section 157 of the Act. 10. The only question that remains to consider is whether the plaintiff-appellant can fall in one of the classes mentioned in the amended Section 157 of the Act. That provision reads as follows: "157(1) A bhumidhar or a sirdar or an asami holding the land in lieu of maintenance allowance under Section 11 who is - (a) an unmarried woman or if married, divorced or separate from her husband, or whose husband suffers from any of the disqualifications, mentioned in Cl. (c) or (d) or a widow; (b) a minor whose father suffers from any of disqualifications mentioned in clauses (c) or (d) or has died; (c) a lunatic or idiot; (d) a person incapable of cultivating by reason of blindness or physical infirmity; (e) prosecuting studies in a recognised institution and does not exceed 25 years in age and whose father suffers from any of the disqualifications mentioned in Cl. (c) or (d) or has died; (f) in the Military, Naval, or Air Service of the Indian Dominion; or (g) under detention or imprisonment; may let the whole or any part of his holding : Provided that in the case of a holding held jointly by more persons than one, but one or more of them but not all are subject to the disabilities mentioned in Cls. (a) to (g) the person or persons may let out his or their share in the holding." 11. It is admitted that the plaintiff-appellant is a married woman. There is a clear finding of fact recorded by the first appellate court that her husband, Shishpal Singh, is suffering from a physical infirmity which has incapacitated him from cultivating the land in suit. Consequently, the petitioner does fall in Cl. (a) of Section 157 (1) of the Act and can, therefore, legitimately maintain the present suit under Section 202 of the Act. It was contended on behalf of the respondents that the word "cultivation" in Cl. (d) of Sec. 157(1) not only means personal cultivation but also includes supervision of cultivation. The Legislature has not defined the word "cultivation" and the Act does not make it clear whether the word cultivation is used in the limited sense of personal cultivation or would also include the process of supervision. (d) of Sec. 157(1) not only means personal cultivation but also includes supervision of cultivation. The Legislature has not defined the word "cultivation" and the Act does not make it clear whether the word cultivation is used in the limited sense of personal cultivation or would also include the process of supervision. It cannot be denied that the word "cultivation" is a comprehensive expression and is wider in its scope than the word `agriculture.' It does mean actual operation on the soil but can also include supervision of agricultural operation if the area is so large that it is incapable of personal cultivation. In cases where the land is a very large one and personal cultivation is not possible or was not carried on before the disqualification was incurred, the word "cultivation" would denote supervision of cultivation. In a case, however where the holding is very small and before the incapacity supervened, it was being personally cultivated, it is obvious that the word cultivation should be construed to mean personal cultivation or the physical act of cultivation. This does not mean that the meaning of the word cultivation changes in different circumstances. All that it means is that the word is comprehensive enough to be applicable in both cases. We need not, however, in this case go further into this matter because as already said above, there is a clear finding of fact, which is binding upon us, that Shishpal Singh, the husband of the plaintiff-appellant, does suffer from such a physical infirmity and that he is incapable of cultivating the land himself. That finding of fact cannot be reopened before us in a Special Appeal. 12. For the reasons mentioned above, we reverse the decree passed by Balram Upadhya, J. and restore that of the first appellate court decreeing the suit of the plaintiff-appellant with costs. In the circumstances of the present case, however, costs in this Court will be on the parties.