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

Citation: [1961] 1 S.C.R. 564; 1960 INSC 143

Court: Supreme Court of India

Bench: BHUVNESHWAR PRASAD SINHA , P.B. GAJENDRAGADKAR, K.N. WANCHOO, K.C. DAS GUPTA, J.C. SHAH

Judgment date: 1960-09-06

Case summary

1960 INSC 143. Supreme Court of India judgment dated 1960-09-06. THE UPPER GANGES SUGAR MILLS LTD. v. KHALLIL-UL-RAHMAN AND OTHERS. Read the judgment and...

Judgment text

1 S. C. R. SUPREME COURT REPORTS 565 564 SVPHEME COUHT HEPORTS (1961] 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. v. 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 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 1 occ11pant in his 01en 1'igl:t-U. 1 • Z111nindari Alo! iti"ori and J. a11d Reforms Act, i950, (U. }'. I of z950). s. 20(b).

The landlord granted a theka to the ccmp;rny for 10 years ending \\'ith 1350 F which \\JS rc11e\ve Compa. 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 h h C J h ed t is view t e ompa. ny wou d ave a. cquir 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 a 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, subject 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 this part of the Act is not a 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- 1 ther v. Board of Revenue, U. P. ( ) ). So long therefore as a 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 F 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 a 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 a result of which the Company continued to (1) 196o A. L. J. 241. 570 Sl'l'l:E:\! E COCHT HEPOHTS [l! l61 J remain in p0sRession that it was in possession on hohalf of t. hc court.. fn such circum8tances the posSPS· frll11f'(_\ . f I (' , , 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- Herted by it, even though if it had not obtained the stay orders it would not lnwe remained in· possesRion.

Learned coirnsd for the landlords in this connection reli tt entry and therefore -it must be held that the company was in occupation as a 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 a hereditary tenant under s. 12, which provides that a thekadar under certain circumstances becomes a hereditary tenant. To meet the Compa. ny's case under s. 12 the landlords contended th. a't the Company was not a thekadar in 1356 F 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 72 SUPRE:\1. E COCRT REPORTS [1961] (1) 1955 A. L. J. 408. correctness of that decision in the present rase.

But that case was not concnned with the nature of posses- GaH es · ] h ti · ' b h ]f / s1on, name y, w e 1er 1t was on a person s own e a 1 ·' ·or on behalf of someone else. The words in s. 20(b)(i) Klw! il-ut-llah"""' only speak of a. person being recorded as occupant and there is nothing in that section as to the nature of the occupancy, namely whether it is on behalf of J. the person recorded or on behalf of somebody else. That is a 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 remained 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 a 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 a 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 F 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 entitled to Adhivasi rights. On this view it is not necessary 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 circumstances 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 r96o the J'udgment prepared by my brother Mr. Justice Th u -G . b')' th h e ppcr anges Wanchoo -; b ut I regret my ma 1 1ty to agree at t e Suga' Mills 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. Das Gupta J. 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:- " 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 a "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 meaning of s. 20(b). The word "occupant" has not been defined in the Act and it has to be praperly interpreted on a consi-deration of t~e entire scheme and t. he purpose of the SCPRK\IE COURT REPORTS [ 1961] legislation. It was suggested on behalf of the land- G""~" lords (Appellants in r. A. Xo. 19fi of 1952) that" OCCU· I. Id. pant" COnnoteR a (JPJ"SO! l Wr. o is in pO~Se~sion in his own right and not on hehalf of some0ne elRe. This was the view t. aken hy tllf' .. \llalialmd High Co1Jrt in Swami Prasad v. Board of Revemie, U. l'. (1). The correctn! 'ss of this view haH not hf''·'n l'h;i,llengPd 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 a Thekadar. Chapter XI of the U. P. Tenancy Act (U. P. XVll of 1939) deals with a Thekadar. It seems rnasonablc to bold that in this Chapter, Thek&-dar is equated to a 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 a 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 a person in possession. in his own right and not on (1) 19(>o A. L. J- 24t behalf of somebody else, these entries in my opinion '9 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 ~~-; • J. 1 \ 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" occupant " 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 arguments 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 . ;\. -+

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