Balbir Singh v. State of Uttar Pradesh — 1969 DIGILAW 367 (ALL)

JUDGMENT Dwivedi, J. - The appellants are in possession of certain cultivatory plots. The Collector, Bijnor, the second respondent. is seeking to dispossess them from these plots with the help of the police. So they filed a writ petition under Article 226 of the Constitution in this Court. Their prayer is that the respondents should be restrained from dispossessing them from the plots otherwise than in due course of law. The petition was heard by a learned single judge. The learned judge found that they were in unlawful. possession of the plots and have no defence for retaining possession thereof. He further took the view that the factum of their possession over the plots is also in controversy between the parties. For these two reasons he was of opinion that it would not be proper to intervene. So he dismissed the petition. Hence this appeal. Counsel for the appellants has strenuously urged before us that the decision of the learned judge is erroneous. He has recanvassed the arguments advanced on behalf of the appellants before the learned judge as well as supplemented those arguments with two new arguments. We shall discuss them presently. 2. But before we discuss them, it is necessary to narrate the factual background of the present dispute. In this State there is in force an Act known as the Imposition of Ceiling on Land Holdings Act. The Act was passed with the object of increasing agricultural production and acquiring land for landless agricultural labourers and for other public purposes. As the Act aims at a more equitable distribution of land between the land-satiated and the land-unsatiated, it provides for imposition of a ceiling on land holdings and for the acquisition of the surplus land by the State. Chapter 4 of the Act deals with the disposal and settlement of surplus land. Sub-sec. (1) of Section 27 provides that the State Government shall settle out of the surplus land in a village in which no land is available for community purposes or in which the available land is less than 15 acres with the Gaon Sabha of that village so however that the total land in the village available for community purposes after such settlement does not exceed 15 acres. The land so settled with the Gaon Sabha shall be used for planting trees, growing fodder or for such other community purposes, as may be prescribed. Sub-sec. The land so settled with the Gaon Sabha shall be used for planting trees, growing fodder or for such other community purposes, as may be prescribed. Sub-sec. (2) provides that subject to sub-sec. (1) , where any surplus land has immediately preceding the date of vesting in the State under the Act, been held by a member of a co-operative society, such land may, if the society so desires, be settled by the State Government with the society. Subsec. (3) is important. According to this sub-section, any surplus land remaining unsettled under the provisions of sub-secs. (1) and (2) may be settled by the State Government as follows : (a) If the remaining land is less than 15 acres in the village, with a co-operative society of such tenure-holders, at least three-fourths of whom are holders of less than 3-118 acres of land each; and (b) If the remaining land is more than 15 acres in the village, with a co-operative society of landless agricultural labourers so however that the total land allotted to such society if equally divided between all the members would give to each one not less than 3-118 acres of land. Sub-section (4) provides that any surplus land remaining after settlement under clause (b) of sub-sec. (3) may be settled by the State Government with any co-operative society no member whereof prior to such settlement has held more than 3-118 acres of land in his own right. Section 26 is also material for our purposes. Sub-sec. (1) of Section 26 provides that all settlements of surplus land vested in the State shall be made on behalf of the State Government by the Collector in accordance with the provisions of Section 27. Sub-sec. (2) reads : The Collector may, for any interim period, between taking possession of surplus land and its settlement under Section 27, let it out to any person for cultivation on such terms and conditions as may be prescribed." The word "prescribed" is defined in Section 2(g). It means "prescribed by rules made under the Act." Section 44 empowers the State Government to make rules. Sub-sec. (1) is important for our purposes. It reads: "The State Government may, after previous publication in the official Gazette, make rules for carrying out the purposes of this Act." Sub-sec. It means "prescribed by rules made under the Act." Section 44 empowers the State Government to make rules. Sub-sec. (1) is important for our purposes. It reads: "The State Government may, after previous publication in the official Gazette, make rules for carrying out the purposes of this Act." Sub-sec. (2) provides that in particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters mentioned therein. Clauses (b) and (e) are material. Clause (b) enables the State Government to make rules providing for the procedure which the Collector shall follow while exercising powers conferred by the Act. Clause (e) provides for the making of a rule with respect to matters which are to be and may be prescribed. 3. Acting in exercise of the powers under Section 44 the State Government has made rules known as the U. P. Imposition of Ceiling on Land Holdings Rules, 1961. Chapter 4 of the rules contains rules regulating disposal and settlement of surplus land. Rule 58 is connected with Section 26 which is the crucial section in the case. Sub-rule (1) provides that any surplus land not settled under Section 27 may be let out by the Collector to any person for cultivation for such interim period, not exceeding five years at a time, as may be necessary in the circumstances of a case. The Patta Qabuliat shall be executed in C. L. H. Form 35. Sub-rule (2) provides that in determining the period for which the surplus land may be let out under sub-rule (1) , the Collector shall have due regard to the administrative and financial difficulties in the formation of cooperative societies, capable of undertaking efficient cultivation of the surplus land, so as to prevent any fall in production. Sub-rule (3) (a) is important for our purposes. It reads: "The interim lease of surplus land under sub-rule (I) shall be subject to the following terms and conditions: (a) the lessee shall hold the land for the period for which it has been let out under sub-rule (1) and on expiry of the said period, he shall deliver peaceful possession thereof to the Collector; .............................. Sub-rule (4) is also material for our purposes. Sub-rule (4) is also material for our purposes. It reads : "(4) The lessee shall be liable to ejectment from the land, if he fails to observe all or any of the terms and conditions mentioned in sub-rule (3) and the decision of the Collector in this regard shall be final and be not questioned. The Collector may, in case of difficulty or delay on the part of the lessee to deliver possession peacefully use such force as may be necessary for taking possession of the land." C. L. H. Form 35 relates to Section 26 (2) and Rule 58. It is the Patta Qabuliat. The Form prescribes that it should be signed by the lessor as well as the lessee. The lessee declares that he covenants to take the lease on the terms and conditions mentioned therein. One of the conditions is:" the lessee shall abide by the terms and conditions mentioned in Rule 58. Condition No. 2 mentions the period of the lease. Condition No. 3 mentions the yearly rent." 4. It is admitted by the appellants that they were granted a lease under Section 26 (2) with effect from July 1, 1963. It is also not disputed that the term of the lease was for three years. It is also not disputed that the Patta Qabuliat was executed. It has not been shown to us that the Patta Qabuliats were not executed in C. L. H. Form 35. It may safely be presumed that they were executed in the said form as required by Rule 58 (1). The term of their lease has expired sometime in 1966. The lease has not been renewed. They are obviously retaining all the plots without any right after the expiry of the term of their lease. Not even the flimsiest attempt has been made by them to show that they have any right to retain possession, after the expiry of the term of their lease. As the term of their lease has expired, the Collector is seeking to recover possession of the plots from them in accordance with sub-rule (4) of Rule 58. And they resist. I 5. One more fact may be mentioned now. By an order dated August 17, 1963, the Patta Qabuliat was cancelled. As the term of their lease has expired, the Collector is seeking to recover possession of the plots from them in accordance with sub-rule (4) of Rule 58. And they resist. I 5. One more fact may be mentioned now. By an order dated August 17, 1963, the Patta Qabuliat was cancelled. The order of cancellation states that the plots were required for preservation of the forest and that it was proposed to transfer them to the Forest Department. This is the entire factual background in which the various arguments have to be examined. 6. The first argument of counsel for the appellants is that as the lease was cancelled, the appellants ceased to be lessees and were in possession as trespassers. Consequently Rule 58 (4) will not be attracted to the case. 7. As soon as the order of cancellation was made, the appellants filed a writ petition in this Court and obtained an interim order restraining the respondents from taking possession of the plots from them, On account of the interim order they have remained in possession over the plots for the entire term of their lease. The respondents have been realising rent from them in spite of the cancellation order. So they were acknowledging them as lessees. ;Again, the order of cancellation was manifestly illegal. It has not been shown to us that the respondents have any power to cancel the lease for the reason mentioned in the order of cancellation. As the order is illegal, it will not have the effect of terminating the relationship of lessor and lessee between the parties. So the appellants were holding the plots till the expiry of the term of their lease as lessees. After the expiry of the term, they are holding the plots on sufferance and their position is akin to a tenant on sufferance. Accordingly Rule 58 (4) does apply to the case. 8. The next argument is that Rule 58 (4) goes beyond the rule making power of the State Government. Sub-rule (4) enables the Collector to evict a lessee for breach of any of the terms and conditions mentioned in sub-rule (3). In this case we are concerned with the condition (a) of sub-rule (3). Accordingly we shall restrict the enquiry into the validity of sub-rule (4) in so far as it is connected with clause (a) of sub-rule (3) . In this case we are concerned with the condition (a) of sub-rule (3). Accordingly we shall restrict the enquiry into the validity of sub-rule (4) in so far as it is connected with clause (a) of sub-rule (3) . We have already quoted sub-sec. (i) of Section 44 and mentioned the gist of the two material clauses of sub-sec. (2) of Section 44. Sub-sec. (2) of Section 26 provides that the Collector may, for any interim period, between taking possession of surplus land and its settlement under Section 27, let it out to any person for cultivation on such terms and conditions as may be prescribed. Section 44 (2) (b) and (e) enable the Government to make rules relating to matters which are to be and may be prescribed and the procedure with the Collector shall follow while exercising powers conferred by the Act. Sub-rules (1) to 3 (a) have been made under clauses (b) and (e) of sub-sec. (2) of Section 44. Sub-rule (4) of rule 58 is incidental to sub-rules (1) to (3) (a) of Rule 58. And there is little doubt in our mind that an incidental rule of this nature may be made under clauses (b) and (e) . Assuming that we are wrong there, sub-rule (4) of Rule 58 can undoubtedly be made under sub-sec. (1) of Section 44. Sub-sec. (1) enables the State Government to make rules "for carrying out the purposes of this Act." Section 27 provides for the ultimate settlement of the surplus land. Until there is the ultimate settlement,. sub-sec. (2) of Section 26 enables the Collector to make an interim settlement with any person for cultivation of the surplus land on such terms and conditions as. :nay be prescribed. The object of the Act is that the surplus land should ultimately be used either for community purposes or by persons who have got scanty land for cultivation or who are landless agricultural labourers. Sub-rule (4) of Rule 58 provides for the speedy eviction of the lessees in certain contingencies, one of them being the expiry of the term of the lease. As the lease under sub-scc. Sub-rule (4) of Rule 58 provides for the speedy eviction of the lessees in certain contingencies, one of them being the expiry of the term of the lease. As the lease under sub-scc. (2) of Section 26 is for the interim period, sub-rule (4) is evidently necessary for evicting a recalcitrant lessee whose term has expired in order to make the land available for the ultimate purpose of its settlement with persons who have scanty land or are landless agricultural labourers or for its use for community purposes. Sub-rule (4) thus carries out a purpose of the Act in so far as it provides for the eviction of a lessee whose term has expired and who refuses to deliver peaceful possession. 9. The next argument is that sub-rule (4) of Rule 58 violates Article 14 of the constitution. It is said that it provides for an alternative mode of evicting a lessee whose term has expired. The normal mode of evicting such a person is a suit for eviction either in the revenue court or in the civil court as the case may be. The procedure for evicting a lessee by a suit is much more liberal than the procedure provided for in sub-rule (4). The latter provides for summary eviction with no right of appeal or revision. The difference in the procedure is undoubtedly manifest. In support of this argument counsel relies on Northern India Caterers Private Ltd. v. State of Punjabi, A.I.R. 1967 S.C. 1581 and Ram Gopal Gupta v. Assistant Housing Commissioner, 1968 A.L.J. 339. On the other hand counsel for the respondents relies on Banarasi Das v. Cane Commissioner, Uttar Pradesh, A.I.R. 1963 S.C. 1417. We have to decide whether the law laid down in the two decisions Relied on by counsel for the appellants or the law laid down in the third case %ill determine the constitutional legitimacy of sub-rule (4) of Rule 58. 10. In the first case relied on by counsel for the appellants an accommodation was let to the appellants by the State for a certain term. On the expiry' of the term the tenant refused to hand over possession. The State then sought to evict him under a State Act which provided for eviction. 10. In the first case relied on by counsel for the appellants an accommodation was let to the appellants by the State for a certain term. On the expiry' of the term the tenant refused to hand over possession. The State then sought to evict him under a State Act which provided for eviction. The Supreme Court found that the procedure provided for eviction under the Act was substantially different from the ordinary procedure regulating a proceeding for eviction in court and was accordingly substantially prejudicial to the tenant. So the majority of the Supreme Court held that the Act offended against Article 14 of the Constitution. It may be observed that in that case the accommodation was let under the ordinary law and not under the Act under which the tenant was sought to be ejected on the expiry of the term of his lease. It cannot therefore be said that he took the lease subject to the provisions of the Act under which he was being ejected. Again, in that case the tenant, when taking the lease, had not agreed that the Act could be applied to him. In the case before us the appellants have taken a lease under the Act under which they are being ejected. So it will be presumed that they took the lease subject to the provisions of the Act and the Rules made thereunder. Again, they have executed a lease in C. L. H. Form 35. It appears from that form that while taking a lease under the Act, a person agrees that he would abide by the terms and conditions mentioned in Rule 58. One of the conditions mentioned in Rule 58 is that on the expiry of the lease he shall deliver peaceful possession of the demised land to the Collector. Sub-rule (4) of Rule 58 is, we think, a condition of the lease (See Halsbury's Laws of England, 7, para. 1044; Words and Phrases, 8, pp. 622 and 625). It is a condition regarding re-entry on or resumption of, land. And he has agreed to be bound by it. In other words, he has agreed that if he does not deliver peaceful possession of the demised land to the Collector, the latter may evict him in accordance with the term incorporated in sub-rule (4). The second case follows the first case. And he has agreed to be bound by it. In other words, he has agreed that if he does not deliver peaceful possession of the demised land to the Collector, the latter may evict him in accordance with the term incorporated in sub-rule (4). The second case follows the first case. Indeed the learned Chief justice, in his separate opinion, has expressly said that if the matter were res integra, he would have followed the minority opinion in the first case which holds that Article 14 is not violated. But the learned Chief justice felt that he was bound by the majority opinion in the first case and so he held that the Act in the second (as also violated Article 14 (Sri Justice Bishambhar Dayal agreed with the learned Chief justice). The provisions of the Act and the Rules in the two cases are, it appears to us, materially different from the provisions of the Act and the Rules in the case before us. In the Industrial Housing Act Section 21 dealt with the eviction of the allottees from the industrial house. None of the grounds mentioned in that section for eviction is identical with the ground mentioned in clause (a) of Rule 58(3). Again, the allotment order is made in form 'B'. It mentions terms and conditions of allotment. None of those terms and conditions is similar to clause (a) of Rule 58(3). Form 'C' is the agreement executed by the allottee. It states that the allottee shall follow the terms and conditions mentioned therein. Twentyeight terms and conditions are mentioned. None of them is identical with clause (a) of sub-rule 58 (3) and sub-rule (4) of Rule 58. So the Industrial Housing Act and the Rules and the forms made thereunder are materially different from the Act and the Rules and the forms made under the Act before us. 11. In Banarsi Dass case on which counsel for the respondents relies the contention was that Rule 23 provided for two different types of procedures to be followed at the option of the Cane Commissioner. After dealing with the rule at some length Sri Justice Hidayatullah, speaking for the majority of the Supreme Court, said :" "The Cane Commissioner has the power to direct that the dispute be referred to arbitration but the rules show that there can be no arbitration unless the parties themselves agree. After dealing with the rule at some length Sri Justice Hidayatullah, speaking for the majority of the Supreme Court, said :" "The Cane Commissioner has the power to direct that the dispute be referred to arbitration but the rules show that there can be no arbitration unless the parties themselves agree. If it is to a sole arbitrator then the sole arbitrator must be acceptable to the parties concerned. If parties do not agree about the sole arbitrator the arbitration is by a Board of arbitrators consisting of one representative of each party and an umpire acceptable to both representatives. The Rule stops short of providing what is to happen if a party does not appoint his representative and the Arbitration Act furnishes no answer because it is inconsistent with the Rule. It is, therefore, obvious that the arbitration must be with the consent of parties and they must express this consent either by selecting an agreed sole arbitrator or by appointing their representatives on the Board. This choice is entirely theirs. If the parties do not agree thus far there can be no arbitration at all and the case must be disposed of by the Cane Commissioner himself. Where there are two procedures one for every one and the other if the disputants voluntarily agree to follow it, there can be no discrimination because discrimination can only be found to exist if the election is with someone else who can exercise his will arbitrarily." It appears to its that the case before us is to be decided on the basis of the aforesaid observation and not on the basis of the decision in the case of Northern India Caterers (Private) Limited'. We have already shown that the appellants took a lease in C. L. H. Form 35. They have signed that lease. They have agreed to the terms and conditions mentioned in Rule 58. Sub-rule (4) is a part of Rule 58. It is a condition. As they have agreed to this condition, sub-rule (4) is being applied to them on their own choosing. Sub-rule (4) may be compared to Section 69(l) (b), Transfer of Property Act which provides that where the mortgagor has agreed to the sale of mortgaged property out of court by the Government mortgagee, the mortgagee may sell the mortgaged property without resort to court. Sub-rule (4) may be compared to Section 69(l) (b), Transfer of Property Act which provides that where the mortgagor has agreed to the sale of mortgaged property out of court by the Government mortgagee, the mortgagee may sell the mortgaged property without resort to court. Such laws are to be justified on the basis of the parties agreeing to a particular procedural remedy. So we hold that sub-rule (4) does not violate Article 14. 12. In the end, we should point out another aspect of the case. As already dated, the appellants have agreed to their ejectment by the Collector under sub-rule (4) of Rule 58. They have got no right to retain the land on the expiry of the term of their lease. They have agreed to hand back peaceful possession to the Collector. Still they want this Court to help them wriggle out of their plighted word and retain wrongful possession over the land. Their conduct is not clean. They seek equity and will not do equity. If they were to institute a suit for a permanent injunction restraining the respondents from interfering with possession, they would get no relief from the civil court. There is no doubt about this. If the Government dispossesses them, they cannot institute a suit against the Government under Section 6, Specific Relief Act. Equity should follow the ordinary law of the land in the absence of any exceptional circumstances. The Act is framed to implement two important Directive Principles of State Policy: distribution of the ownership and control of the material resources of the community to subserve the common good. (Article 39 (b)) and promotion with special care of the economic interests of the weaker sections of the people. (Article 46). By their refusal to deliver peaceful possession of the land to the Collector on the expiry of the term of their lease the appellants seek to defeat or, at any rate, delay the achievement of these humanitarian ideals of the Constitution. So they want to deploy Article 226 of the Constitution to stifle Part IV of the Constitution. But as judges of this Court we have taken the oath to "uphold the Constitution." 13. Having regard to all these considerations of equity and sanctity of the Constitution we have no hesitation in telling the appellants that we shall not help them. So they want to deploy Article 226 of the Constitution to stifle Part IV of the Constitution. But as judges of this Court we have taken the oath to "uphold the Constitution." 13. Having regard to all these considerations of equity and sanctity of the Constitution we have no hesitation in telling the appellants that we shall not help them. See Bishan Das v. State of Punjab SIC S.C. 1520; State of Orissa v. Ram Chandra, SIC 685; Trilokchand v. M. B. Munshi, (1969) 1 S.C.C. 111 and State of West Bengal v. Birendra Nath, A.I.R. 1955 S.C. 601. 14. The appeal is accordingly dismissed with costs which we assess at R. 300/-.