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Judgment
P.K. Goswami, C.J.—This second appeal is by the defendants having lost in both the courts below in a suit instituted by the plaintiff on 1st June, 1961 for their eviction from the agricultural lands measuring about 4 B. 16 K. 13 Ch. The plaintiff also got a decree for recovery of rent which is not at all disputed by the defendants.
The plaintiff''s case is that the defendants held the suit land as his tenants by executing a kabuliat on 11th February, 1953 for a period of three years and thereafter they were holding over. A rent suit was earlier instituted by the plaintiff against the defendants for recovery of rent and that was decreed. The plaintiff wants khas possession of the suit land which is adjacent to his homestead land and he claims that it is necessary for his own use. The defendants admitted the tenancy, but pleaded that they were tenants since long before 1953 for about 30 years in the case of R.S. Patta No. 14 and for about 12 or 13 years in case of R. S. Patta No. 20. Hence they acquired occupancy right over the suit land and are not liable for eviction.
The court below held that the notice of eviction was valid and that is not challenged before us. It found that the defendants were tenants since only 11th February 1953 on the strength of the kabuliat. Hence it also held that the defendants did not acquire occupancy right layer the suit land. It further held that the plaintiff required the land for his own use. The court also found that the plaintiff had less than 100 bighas of land and the defendants had more than 10 bighas under their own cultivation. On the two last findings of fact the court held that Section 23 of the Assam Fixation of Ceiling on Land Holdings Act, 1956 (Assam Act I of 1957) hereinafter called the ''Ceiling Act'', is no bar to the eviction of the defendants from the suit land.
The principal point which is canvassed before us by Mr. Mazumdar the learned counsel for the appellants, is that the learned court below erred in passing a decree of eviction in view of the provisions of Section 23(b) of the Ceiling Act. We may therefore turn to the material provisions of the Act:
Section 4(1):
"Notwithstanding anything to the contrary in any law, custom or agreement no person shall been titled to hold as owner or tenant, lands, which exceed the limit of 150 bighas in the aggregate:
X X X
Section 5:
Any person who, on the date of commencement of this Act holds as owner or tenant lands, which in the aggregate, exceed the limit fixed u/s 4 above shall within the prescribed period, submit to the Collector a return giving the particulars of all his lands in the prescribed form and stating therein his selection of plot or plots of lands (not exceeding in the aggregate the limit fixed u/s 4 above) which he desires to retain under the provision of this Act.
Under Section 6. the Collector can obtain Information regarding lands through other agency. u/s 7, the Collector has to prepare a draft statement and the procedure thereto and thereafter is detailed in the section. u/s 8, the State Government acquires the excess lands by publishing in the official Gazette, and, u/s 9 on publication of the notification all rights, title and interests of the persons in such excess lands stand transferred to the Government free from encumbrances. Chapter III provides for disposal of excess land and sections 16 to 18 deal with the manner of disposal of excess land. Chapter IV deals with excess land under annual lease and Chapter V with ceiling on future acquisition of land exceeding the ceiling fixed under the Act. Section 23 which occurs in Chapter VI with the title "Ceiling for resumption of land from tenants for personal cultivation by the landlord", reads as follows:
Notwithstanding anything to the contrary in any law, usage or agreement, no landlord shall be entitled to terminate the tenancy of any person on the ground for his requiring the land for his personal cultivation except under the following circumstances, namely:
(a) if the aggregate area of lands in actual occupation of a tenant does not exceed 10 bighas, then he shall not be ejected therefrom until he has been provided with land of equivalent value in the locality:
(b) if the aggregate area of lands in actual occupation of a tenant exceeds 10 bighas then the tenant shall not be ejected from a minimum area of 10 bighas as selected by him (tenant), until he has been provided with land of equivalent value in the locality but the landlord shall be entitled to resume for personal cultivation any area in excess of these 10 bighas. In no case, however, the aggregate area of lands so resumed from all his tenants taken together along with any other land already held under personal cultivation by the landlord on the date of resumption shall exceed an overall limit of 100 bighas;
(c) the right of resumption shall be exercisable by only those landlords whose income by cultivation of land is the principal source of income for their maintenance:
Provided that no tenancy of a tenant, who has acquired the right of occupancy under any law for the time being in force shall be terminated except under the provisions of that laws
X X X
Section 24:
No tenant shall, after the expiry of a period of 5 years from commencement of this Act, be ejected on the ground that the landlord requires the land for his personal cultivation under the provisions of Section 23 above. x x x x.
Section 27:
(1) A landlord who wants to resume any land for personal cultivation u/s 23 shall give notice to his tenant to that effect and thereupon the tenant shall select the area under his occupation which he is entitled to retain under the provisions of this Act, and shall inform the landlord in writing within 30 days of the service of the notice.
(2) The landlord may then, out of the area not so selected by the tenant, choose the area which he is entitled to resume and may terminate the tenancy thereof after giving the tenant not less than 60 day''s notice in writing.
(3) If no information as required under Sub-section (1) above is received by the landlord within 45 days of the service of the notice, the landlord shall be entitled to select in his discretion the land for resumption u/s 23, and to terminate the tenancy thereof after giving the tenant not less than 60 days" notice in writing.
(4) Notwithstanding anything to the contrary in any. law or contract, no tenant of the land which has not been selected and demarcated for resumption for personal cultivation by the landlord under the Sub-sections above and no tenant of the land which has been selected for resumption by the landlord but proceeding for ejection wherefrom has not been instituted within the period mentioned in Section 24 of this Act shall be ejected except on the grounds mentioned below and after giving at least 30 days'' notice in writing
(a) that he has done any act which is destructive or permanently injurious to the land and failed to repair the damage within 90 days of the service of the notice given by the landlord; or
(b) that he has failed to pay the rent lawfully due to the landlord within 90 days of its becoming due; or
(c) that he has kept the land fallow for two consecutive years without any reasonable ground.
The Ceiling Act came into force on 15th February. 1958 and the suit being instituted in 1961 the bar of Section 24 is not attracted. On the finding of the court below, the defendants had more than 10 bighas of cultivable land in their possession and the plaintiff had less than 100 bighas of such land in his possession. The Ceiling Act has been passed to make provision for imposition of limits on the amount of land that may be held by a person and, after acquisition of the land in excess of the ceiling fixed by the Act, to make equitable distribution of the same under the provisions of the Act. The Act allows the landlord to possess land within the limit of the ceiling fixed. It also protects the tenant from eviction from an area of 10 bighas or less of cultivable land in his possession. Unless such a protection is given to tenants, the entire object behind the provisions of the Ceiling Act will be frustrated. Chapter VI, which opens with Section 23, therefore contains salutary provisions in furtherance of the avowed object underlying this Act for putting a ceiling even for resumption of land from tenants for personal cultivation by the landlord.
It is contended on behalf of the respondents that the provisions under Chapter VI of the Act can be called in aid by tenants only against landlord who has more than 150 bighas of land and whose excess land has been acquired under the provisions of this Act. This submission seemed to have been accepted by one of us (Pathak, J.) in an unreported decision of this Court in Second Appeal No. 3 of 1965 disposed of on 15th September 1967 but, later on. his Lordship felt some doubt about the matter and referred this appeal to a Division Bench and that is how it has come before us. We have now given our anxious consideration to the entire matter and come to the conclusion that the landlord will have to comply with the provisions of Section 27 if he wants to resume any land for his personal cultivation u/s 23. It is difficult to introduce any limitation suggested by the learned counsel for the respondents in the definition clause of landlord in view of the unalloyed definition of ''landlord'' in the Act. and also in view of the integrated scheme and objects underlying the entire provisions of the Act. u/s 27(1), the tenant shall select the area of 10 bighas or less under his occupation and has to Inform the landlord in writing within 30 days of the service of notice of termination of tenancy. Chapter VI lays down certain limitations upon the landlord and also some pre-conditions before he is entitled to elect a tenant from excess land. u/s 27(4) however, the tenant can still be ejected after giving at least 30 days'' notice in writing if he commits any one of the lapses mentioned in (a) to (c) of that sub-section.
We may also observe that Rule 25 of the Assam Fixation of Ceiling on Land Holdings Rules, 1957 Lays down a procedure for resumption of land from tenant by landlord for personal cultivation u/s 23 of the Act. He has to make an application to the Civil Court having territorial jurisdiction over the land and it will dispose of the application in the manner of a suit for possession of immovable property under the Code of Civil Procedure. The order of ejection shall be carried out in accordance with the provisions of Order XXI of the Code of Civil Procedure.
The landlord, therefore, after the passing of the Ceiling Act, has to comply with the provisions of the Act and the Rules, if he wants to evict tenant from agricultural land. u/s 23(3), the right of resumption by landlord for personal cultivation shall be exercisable by only those landlords whose income by cultivation of land is the principal source of income for their maintenance. Under the proviso to that sub-section, the rights of occupancy acquired under other laws are protected in accordance with the provisions of those laws. The provisions of the Ceiling Act therefore are not in derogation of the rights which have already been conferred upon tenants under other laws, but only supplemental to such pro visions. These laws are under a class of welfare legislation and have to be viewed without however straining the language of the provisions, in defence of the rights of the tenants conferred by them.
Since, in the instant case, the plaintiff has not complied with the provisions under Chapter VI of the Act and Rule 25 of the Rules mentioned above and since it has not been shown that the provisions of Section 27 of the Act have been complied with by the plaintiff before institution of the suit, the suit is liable to be dismissed for non-compliance of the provisions of the Act and Rule 25.
In the result the judgment and decree of the court below are set aside and the plaintiff''s suit stands dismissed. The appeal is allowed. We will however, make no order as to costs.
M.C. Pathak, J.
I agree.