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TMI Blog1942 (1) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... cceded to arguments on behalf of the plaintiff which may be summarised thus: 2. First , the new legislation by cutting down the landlord's share of the produce from 22 seers in the maund to 18 seers in the maund would have the effect of diminishing the landlord's assets in his estate, thereby depriving him of his property contrary to Section 299, Government of India Act. Secondly, the new legislation would have the effect of amending the Permanent Settlement contrary to the assurance given to the zamindars. It was beyond the power of the local Legislature to do this. 3. Thirdly, the new legislation varies the provision of the Bengal Tenancy Act, 1885, an Act passed by the Central Legislature. The Provincial Legislature had not the power to do this without the sanction of the Governor-General in Council. 4. Fourthly, the new Act changes the law with regard to contract which is a matter on the Concurrent List in Schedule 7, Government of India Act. Such legislation will be ultra vires and inoperative unless the local Act is reserved for the assent of the Governor-General. Fifthly, agricultural contracts not being specifically mentioned in the Provincial List of subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their tenants. On the contrary, to prevent any misconstruction it was declared in Art. 7: It being the duty of the ruling power to protect all classes of people, and more particularly those who from their situation are most helpless, the Governor-General in Council will, whenever he may deem it proper, enact such regulations as he may think necessary for the protection and welfare of the dependent taluqdars, raiyats and other cultivators of the soil; and no zamindar, independent talukdar, or other actual proprietor of land shall be entitled on this account to make any objection to the discharge of the fixed assessment which they have respectively agreed to pay. In my opinion, the legislation which we are considering did not contravene any of the provisions of the Permanent Settlement Regulation. But assuming that it did, the question whether it had power to do so falls to be determined on a construction of the Government of India Act of 1935 as held in Jhalak Prasad Singh V/s. The Province of Bihar A.I.R. 1941 Pat. 306 just cited. It is suggested that the new legislation is an Act making provision for the extinguishment or modification of rights in land including rights or privi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Concurrent List of subjects in Schedule 7. Undoubtedly the Act alters the provisions of the Bengal Tenancy Act, 1885, an Act of the Central Legislature. We have to examine the application of the provisions of Section 107, Government of India Act, which deals with such repugnancy differently according as the subject of the new legislation is a subject on the Federal, Provincial or Concurrent Legislative List. If the matter is on the Federal List, the Provincial Government has no power to legislate for it. That is provided in Section 100, Sub-section (1). If the matter is on the Concurrent List, then under Section 100, Sub-clause (2) both the Federal and the Provincial Legislatures have power to make laws with respect to any such matters. If the matter is on the Provincial Legislative List, the Provincial Legislature has and the Federal Legislature has not power to make laws for the province in respect to the matter. If the matter is on the Concurrent List, the local Legislature has power to pass an Act, but in case of repugnancy between new legislation and an existing Indian law, then, if the Provincial law has received the assent of the Governor-General of His Majesty, it will pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be said to be comprehended in it; and in In the mater of the Hinhu Women's Right to PropertyA.I.R. 1941 F.C. 72 item 21 of List 2 was held to include succession to agricultural land, this subject being excluded from item 7 of List 3. I am, therefore, of opinion that Section 178B as introduced into the Bihar Tenancy Act by Bihar Act 8 of 1937 was within the competence of the local Legislature as being an. enactment dealing with a subject on the Provincial Legislative List. On that view Second Appeal No. 392 must be allowed, the decision of the Subordinate Judge set aside and that of the Munsif restored. THE defendant-appellants to have their costs of the appeal and the second appeal. In Second Appeal No. 137 similar points are raised and similar considerations will govern them as assuming the land in suit to the agricultural land, but a further point is taken, that the land in suit here is not agricultural land. This point was not taken in the Courts below; indeed the validity of Bihar Act, 8 of 1937 does not appear to have been challenged. But I propose to deal with the question as raised before this Bench. THE rent claimed property is an orchard containing 53 mango trees. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his reasoning was similar. It cannot be said that the fruit gathered is the result of any cultivation, but, on the contrary, it is the result of the absence of cultivation. 10. The case of an orchard is quite different. Orchard trees ordinarily are, and can be presumed to have been, planted by man after preparation of the ground which is cultivation and seasonal crops are gathered. Fruit trees also require seasonal attention such as pruning and digging of the soil around the roots, and it cannot be said that this ceases to be cultivation merely because the whole tree is not replanted every year. THE Judicial Committee of the Privy Council in Kaju Mal V/s. Saligram A.I.R. 1924 P.C. 1 have held that lands let out for cultivation of tea are lands let out for agriculture. In my opinion the land in suit is agricultural land; it is land from which by preparing the soil and planting and cultivating trees the raiyat expects to enjoy periodical returns in the way of produce for food. That being so, I would say that Section 23-A(b), Bihar Ten. Act, deals with a Provincial subject and cannot be inoperative by reason of any actual or supposed repugnancy to an all-India Act. The repugnan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs share of the produce on the basis of the record of rights. In the latter suit both the Courts below passed a modified decree for nine-twentieth share of the produce in accordance with provisions of Section 23-A(b) and 178-B, Bihar Tenancy Act. In the former suit the trial Court gave a decree for nine-twentieth share of the produce according to Section 178-B, Bihar Tenancy Act, but the lower Appellate Court decreed the claim for half share, holding that Section 178-B is ultra vires. 13. I shall first deal with the tenant's Appeal (No. 392). In this appeal the learned Advocate-General appeared suo motu on behalf of the Province of Bihar to support the validity of the legislation in regard to Section 178-B. This section runs thus: Nothing in any contract, express or implied, between a landlord and a raiyat made before or after the commencement of the Bihar Tenancy (Amendment) Act, 1937 shall entitle the landlord to more than nine- twentieths of the produce as rent in respect of an occupancy holding if rent is payable in kind by division of the produce. 14. The Bihar Act 8 of 1937 was passed by the Bihar Legislature under the provisions of the Government of India Act, 1935 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment making provision for the transference to public ownership of any land or for the extinguishment or modification of rights therein, including rights or privileges in respect of land revenue, shall be introduced or moved in either Chamber of the Federal Legislature without the previous sanction of the Governor-General in his discretion, or in a Chamber of a Provincial Legislature without the previous sanction of the Governor in his discretion. In my opinion both the grounds taken by the learned Advocate-General are well founded. To determine what rights were conferred on the zamindar by the Permanent Settlement we must look to the provisions of Regulation 1 of 1793. Any investigation into the previous history as to what basis was adopted for fixing the revenue is in my opinion quite irrelevant. Now, is there any provision in Regulation 1 of 1793 which gives the zamindar the right which is now claimed by the plaintiff? Dr. Mitter relies on Articles 3, 4, 5, and 6 of the Regulation which merely provide in substance that the revenue is to remain unaltered for ever. Assessment of revenue is a matter entirely between the Crown and the zamindar. What rent should be paid by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Federal Legislature or a Provincial Legislature, and no provision in any such Act, shall be invalid by reason only that some previous sanction or recommendation was not given, if assent to that Act was given: (a) where the previous sanction or recommendation required was that of the Governor, either by the Governor, by the Governor-General, or by His Majesty; (b) where the previous sanction or recommendation required was that of the Governor-General, either by the Governor-General or by His Majesty. The next argument of Dr. Mitter is that Section 178B relates to contract which falls within item 10 of the Concurrent List. That item comprises: Contracts including partnership, agency, contracts of carriage and other special forms of contract but not including contract relating to agricultural land. 19. This item thus expressly excludes contracts relating to agricultural land. It cannot, therefore, be argued with any show of reason that the contract referred to in Section 178-B falls under item 10. 20. On the other hand, the learned Advocate-General argues that the matter is covered by item 21 of the, Provincial Legislative List called List 2. That item runs as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s Appeal (No. 137 of 1941). In this case the Courts below have relied on the provisions of both Secs.23-A (b) and Section 178-B, Bihar Tenancy Act, though the trial Court does not mention these sections in its judgment. Of these two sections the more appropriate section applicable to the present case is Section 23-A (b). That section stands thus: Notwithstanding anything contained in Section 23, when a raiyat has a right of occupancy in respect of any land: (b) If the rent of such land is paid in any of the ways specified in Sub- section (1) of Section 40, the landlord and the raiyat shall have equal shares in the timber and [the landlord shall have nine-twentieths and the raiyat shall have eleven-twentieths in the flowers, fruits and other products of all trees or bamboos growing en such land whether planted before or after the commencement of the Bihar Tenancy (Amendment) Act, 1934, but the raiyat shall not be entitled to plant any tree or bamboo on such land without the consent of the landlord and neither the raiyat nor the landlord shall, without the consent of the other, be entitled to cut down or appropriate any such tree or bamboo. This section, without the words the landl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding must be deemed to be agricultural land, and it is unnecessary to express any opinion as to whether orchard generally can be said to be agricultural land. 24. Next , assuming that the holding cannot be said to be agricultural land, does the case really fall under item 10 of List 3? This item relates to contracts generally. On the other hand, item 21 of List 2 specifically refers to the relation of landlord and tenant and to the collection of rents. The ordinary rule of construction of statutes is that where in particular statute there are general as well as special provisions relating to a particular matter, the special provision will prevail. Here item 10 of List 3 is a general provision relating to contracts which, by reason of the comprehensive nature of the words used, may be applied to the matter covered by Section 23-A(b). But, on the other hand, we find in item 21 of List 2 specific provisions touching the relation of landlord and tenant and the collection of rents. In my view, therefore, this special provision, that is to say, item 21 of List 2 will apply to the present case. In my opinion the amendment to Section 23-A (b) made by the Bihar Act 11 of 1938 was perfec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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