JUDGMENT

This Second Appeal raises the interesting question whether a lessee of agricultural land from the Government could, against the claim for possession by the Oevernnent on the expiry of the lease, rely upon the provisions of the Madras Cultivating Tenants' Protection Act (Act XXV of 1955). The State claims immanity and exemption from the provisions of the statute hereinafter referred to as the Act, and the Courts below have accepted the claim of the State.

The suit property, river Padugai Poramboke land of an extent of 3 acres and 25 cents, in Senappiratti Village, Karur Taluk, was leased out by the Tabsildar acting for the State Government by Public auction to the plaintiff for a period of three Faslis commencing from Fasli 1363. On the expiry of the period of lease, again, at a public auction the plaintiff became the lessee of the land for Fastis 1365 to 1368. Talcing the lease, the plaintiff duly executed a Muchlika on 3-1-1958 in favour of the Tabsildar, agreeing to pay the rent for the three Faslis and undertaking to surrender possession of the suit land after the expiry of the lease. When on the expiry of the 2nd lease period, the Tabsildar announced public auction of the leasehold right, the plaintiff objected to the auction being held, submitting that he was a cultivating tenant entitled to the benefits of the Act. Overruling this objection, the auction was proceeded with, and the 1st defendant in the suit out of which the second Appeal arises, became the successful bidder at the auction, of the leasehold right. However, he could not get possession, in view of the contention put forward by the plaintiff. Apprehending forceful eviction, the plaintiff filed the suit, now under consideration, for a declaration that he is entitled to the benefits conferred on cultivating tenants under the Act and for an injunction against the defendants from interfering with his possession of the suit land. The Court below, relying on certain early decisions of this Court prior to independence, and applying Section 3 of the Government Grants Act (Act 15 of 1895), would uphold paramountcy of the provision in the lease deed of the plaintiff that he should surrender possession of the land at the expiry of the lease period, over the provisions of the Act, granting a cultivating tenant immunity from dispossession on certain conditions.

Two questions were argued before me: (1) Claim of immunity of the Government from the operation of a Statute unless the statute in express terms or by necessary implication bound the Government ana (2) the para-mountey of the terms in a Government grant notwithstanding anything contained in any statute or enactment of Legislature, by virtue of Section 3 of the Government Grants Act.

It is not disputed that the plaintiff could claim to fall within the definition of a cultivating tenant under the terms of Madras Act XXV of 1955, if the Act could be availed of by him against the State. His claim that he took lease of the land for the purpose of agriculture for personal cultivation and was carrying on personal cultivation of the land, was not put in issue. Admittedly there was a tenancy agreement between the plaintiff and the State. Having entered on the land under the tenancy agreement, he is continuing in possession of the land after termination of the tenancy agreement. If the Act applied, under section 3 of the Act he cannot be evicted from his holding or any part thereof, by or at the instance of the landlord, whether in execution of a decree or order of a Court or otherwise. Recourse can be had only under the provisions of the Act. The State is manifestly his lessor. The Act does not expressly exclude the State from the definition of landlord. Nor is the State specifically included in the definition of landlord in the Act. The Act defines ‘landlord’ in relation to the land held by a cultivating tenant, as ‘the person entitled to evict the cultivating tenant from such holding or part’. If there is nothing else to consider, the State could be considered a landlord under the Act. There is no definition of the term “person” in the Act limiting it to natural persons, and it was not argued before me that the State should not be considered as a person. It is manifest that the word ‘person’ has beea employed compendiously to cover all juristic entitles that could evict a tenant. The State can, if the context warrants, be regarded as a person; see State Of Bihar v. Rani Sonabati Kumari A.I.R, 1961 S.C 211

I may immediately take up for consideration the Government Grants Act (Act XV of 1895), an Act stated as intended to explain the Transfer of Property Act, 1882 so far as it related to grants from the Government and to remove certain doubts as to the powers of tne Government in relation to such grants. The preamble to the Act states that, as doubts have arisen to the exteat and operation of the Transfer of Property Act, 1882, and as to the power of the Government to impose limitations and restrictions upon grants and other transfers of land made by it or aader its authority and it is expedient to remove such doubts, the law was enacted. Of the two principal sections in the Act, Section 2 provides that the Transfer of Property Act shall not apply to Government Grants. Section 3, on which reliance is placed, turns as follows.

“All provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor any rale of law, statute or enactment of the Legislature to the centrary notwithstanding.”

The argument for the State based on S. 3 is: The lease deed has provided that the plaintiff shall surrender possession on the expiry of the three year period of lease. It may be that Madras Act XXV of 1955 grants tenants, in certain circumstances, immunity from eviction and entitles them to continue in possession. By virtue of S. 3 of the Government Grants Act, the provisions, restrictions, conditions and limitations of the lease deed ought to prevail over the statutory rights conferred on tenants under Madras Act XXV of 19SS. Though a point can be raised whether S. 3 Government Grants Act should net be limited in its scope having regard to the express objeet of the Legislation, the contention is not only prima facie appealing, but is supported by authorities.

In S. Murugesa Gramani v. Province Of Madras, the applicability of the Madras City Tenants Protection Act (Act III of 1922) to a lease of a plot of land by the Government came up for consideration. The lease deed provided for forfeiture and re-entry in certain circumstances. The tenant contended that be could be evicted, if at all, only under the provisions of the City Tenants Protection Act. This Court held that the Crown Grants Act prevailed ever the City Tenants Protection Act and the terms of the lease could be enforced. As the lease provided that it should come to an end on the expiry of three years, the lessee was bound by the covenant and had ao right to be la possession after the expiry of the lease, notwithstanding the provisions of the City Tenants Protection Act. There is also a Division Bench decision of this Court in Ullattuthedi Chovi v. The Secretary of State for India 41 M.L.J 494, wherein it was held that, if the terms of a lease granted by the Crown provided for surrender of the demised land by the lessee on six months notice, he could not resist a suit in ejectment by the Crown after the requisite notice, on the ground that he must be paid the value of his improvements under the Malabar Compensation for Tenants' Improvements Act. There is an earlier decision of this Court in Kallingal Moosa Kutti v. The Secretary of State for India I.L.R 43 Mad. 65, wherein it was held that, under Ss. 2 and 3 of the Crown Grants Act, the Government had power to impose restrictions in a lease made by it, a power which was not affected by the provisions of the Malabar Compensation for Tenants' Improvements Act. These decisions may not be good law, after the categorical pronouncement of the Judicial Committee about the scope of S. 3 of the Crown Grants Act. In Jagannath Baksh v. Uuited Provinces A.I.R 1946 P.C 127 at 131, after setting out the general proposition that the Crown cannot deprive itself of its Legislative authority by the mete fact that in the exercise of its prerogative it makes a grant of land within the territory over which such Legislative authority exists, the Judicial Committee proceeded to consider S, 3 of the Crown Grants Act and observed:

“These general words cannot be read in their apparent generality. The whole Act was intended to settle doubts which bad arisen as to the effect of the Transfer of Property Act, 1882, and must be read with reference to the general context and could not be construed to extend to the relations between a sanad holder and bis tenants. Still less could they be construed to limit the statutory competence of the Provincial Legislature under the Constitution Act.”

We are not concerned in the instant case with any provisions of the Transfer of Property Act. The tenant does not rely on any provisions of the Transfer of Property Act for continuance in possession. He relies upon an independent enactment, Madras Act XXV of 1955. S. 2 of the Government Grants Act is out of way and the only question is whether S. 3 of the Government Grants Act (formerly Crown Grants Act) could be relied upon by the defendants. The decision of the Judicial Committee in Jagannath Baksh v. United Provinces A.I.R 1946 P.C 127, as to the limited scope of S. 3 hat keen followed by the Supreme Court in Collector of Bombay v. Nusserwanji, and the position now is, therefore, beyond question that S. 3 of the Government Grants Act saves a Government grant only in respect of provisions, restrictions, conditions and limitations over, which would be hit by the Transfer of Property Act. The Supreme Court observed:—

“Reading the enactment as a whole, the scope of S. 3 is that it saves “provisions, restrictions, conditions, and limitations over” which would be bad under the provisions of the Transfer of Property Act, such as conditions in restraint of alienations or enjoyment repugnant to the nature of the estate, limitations offending the rule against perpetuities and the like. But no question arises here at to the validity of any provisions, restrietion, condition or limitation over, contained in Ex. A on the ground that it is in contravention of any of the provisions of the Transfer of Property Act and there is accordingly nothing en which S. 3 could take effect”.

The Government Grants thus being unavailable, the State sought to stand on the archaic prerogative and immunity of “the Crown” from operation of statutes. It was suggested that the State, by virtue of the prerogative right which had been conceded to the Crown, was not bound by any statute, whereby any prerogative, right, title or interest belonging to it may be divested or abridged, unless the statute expressly named the State or bound it and property owned by it by clear indication. This plea, again, is not available to the defendants after the decision of the Supreme Court in State of West Bengal v. Corporation of Calcutta, and Union of India v. Jubbi, In State of West Bengal v. Corporation of Calcutta, the Supreme Court considered the correctness of the former, decision of the Court in Director of Rationing and Distribution v. Corporation of Calcutta, and, disagreeing with the majority view therein, hold:

“On the other hand, the normal construction, namely, that the general Aet applies to citizens as well as to State unless it expressly or by necessary implication exempts the State from its operation, steers clear of all the said anomalies. It prima facte applies to all States and subjects alike, a construction consistent with the philosophy of equality enshirned in our Constitution. The natural approach avoids the archaic and moves with the modern trends. This will not cause any hardship to the State. The State can make an Aet, if it chooses, providing for its exemption from its operation, Though the “State is not expressly exempted from the operation el an Act, under certain circumstances such an exemption may necessarily be implied. Such an Act, provided it does not infringe fundamental rights, will give the necessary relief to the State.”

During the course of the discussion, the Suprme Court observed,

“We have no Crown: the archaic rule based on the prerogative and perfection of the Crown has no relevance to a democratic republic: it is inconsistent with the rule of law based on the doctrine of equality;”

In the latest ease Union of India v. Jubbi a citizen applied under Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, for acquiring proprietary rights in Government lands set out in the application, claiming to be the cultivatiog tenant of those lands. He stated that he was the tenant of the Union of India in respect of the said lands, and that he was willing to pay compensation as providec by the Act. On the question of the applicability of a statute to the State and its immunity, the Supreme Court re-stated the present position thus:

“The position now therefore is that a statute applied to State as much as it does to a citizen unless it expressly or by necessar implication exempts the State from its operation.” Proceeding the Supreme Court observed: “It is conceded that neither S. 11 nor an; other provision in the Act contains an; express exemption. Broadly stated, if the Legislature intended to exclude the applicabi lity of the Act to the State it could have easily stated in Section 11 itself or by a separate prevision that the Act is not to be applied to the Union or to lands held by it In the absence of such a provision, in constitutional set up as the one we have in this country, and of which the overriding basis is the broad concept of equality, free from any arbitrary discrimination, the presumption would be that a law of which the avowed object is to free the tenant of landlordism and to ensure to him security of tenure would bind all landlords Irrespective of whether such a landlord is an ordinary Individual or the Union”.

The following remarks of the Supreme Gourt, when examining the question whether the statute in that case by necessary implication exempted the State, give a clear guidance for the present case also:

“it is clear that the object of the Act was to abolish big landed estates and alleviate the conditions of occupancy tenants by abolishing the proprietary rights of the land-owners in them and vesting such rights in the tenants. That being the paramount object of the Legislature, it is hardly likely that it would make any discrimination between the State and the citizen in the matter of the application of the Act. This is especially so because if such a discrimination were to be brought about through a construction suggested by the State it would result in an anomaly in the sense that whereas occupancy tenants of lands owned by citizens would have the “benefit of such a beneficent legislation occupancy tenants of lands owned and held by the State would not get such benefit. An intention to bring about such a discrimination against the latter class of tenants cannot be attributed to the Legislature whose avowed object was to do away in the interest of social and economic justice landlordism in the State”.

Now the Madras Cultivating Tenants Protection Act under consideration dees not specifically exempt lands lease by the State to a tenant from the operations of the Act. It is relevant here to note that the Madras Buildings (Lease and Rent Control Act, 1960, in S. 10, specifically provides that nothing cons tained in the section shall apply to a tenant whose landlord is the Government. This exemption may be seen even in the earlier Rent Control Enactment of 1949. I can see nothing special in the Act now under consideration to conclude that it exempts the State by necessary implication. The relationship that is postulated for applicability of the Act is that of landlord and tenant. A State can clearly be a landlord and the Madras State is the landlord her;. The object of Madras Act XXV of 1955 is the protection of a cultivating tenant from eviction. The preamble states that it is necessary to protect cultivating tenants in certain areas in the State of Madras from unjust eviction. What is unjust eviction has to be looked for in the Act itself; that eviction would be unjust which is not permitted by the Act. S. 3 of the Act puts an embargo en all evictions except under the provisions of the Act. Any removal of a cultivating tenant from the land, outside the provisions of the Act will be unjust, and what is there relevant in the context to infer that the Legislature intended to discriminate between tenants of Government lands and tenants holding from other landlords?

It is contended for the State that S. 4-A of the Act provides for a landlord to resume possession, from any cultivating tenant, half the extent of lands leased, for the purpose of personal caltivation by the landlord, and that, as personal cultivation involves contribution of one's own physical labour or that of the members of his family, an artificial person cannot be a landlord. This argument assumes that that every landlord must be entitled and qualified to assume possession of land for personal cultivation, an assumption net warranted. S. 4-A came in by an amendment of the Original Act in 1956. When deeming entitles complying with certain legal formalities as persons, law, by analogy to the extent and consistent with the purposes of the creation, takes rales applicable to ordinary persons and extends them to the artificial persons. All the rales that apply to natural persons may not be extended to artificial persons and need not necessarily be extended. There is no logical compulsion to make the analogy complete. The Act has been applied without question to lands owned by juridical persons Jike deities, charitable institutions and Trusts. The Public Trusts Act (Act LVII of 1961) does recognise personal cultivation by public Trusts, and the definition of personal cultivation is the same as in Act XXV of 1955. in fact, Act LVII of 1961 recognises the applicability of the Cultivating Tenants Protection Act to Public Trusts. It is unnecessary to consider whether the State cannot have personal cultivation if it should be held to be a necessary qualification for a landlord, and whether the fiction creating a person cannot, in the context, be extended to contribution of physiscal labour by the accredited limbs of that person, notwithstanding the strict requirement of the definition of personal cultivation. I sec no ground for straining to find implied exemption of the State from the provisions of the Act. It is no more a sovereign who has to hug at prerogatives and cling to exemptions. We have a democractic Republic, a service State with the ultimate sovereignty vested in the people. A good part of the functions of the State are non-sovereign in the traditional sense of the word and it functions in those spheres, very like a citizen. In the present case the State has granted a lease, and, in the matter of evicting the tenant who is now cultivating the land, for the purpose of inducting another tenant who may be prepared to pay more rent, how is the State different from other landlords like deities, charitable institutions, and so on?

My attention has not been drawa to any provision in the Aet other than S. 4-A which necessarily warrants exemption of the State from the provisions of the Act. There is nothing in the provisions of the Act suggestive of a distinction between lands held by citizens, Devasthanams, charitable institutions, trusts and the like and lands held by the State. It is certainly open to the State if it considers necessary in the larger interests of the State to get itself exempted by appropriate amendment of the statute. As the statute stands, the State can claim no exemption. It follows that the plaintiff is entitled to declaration as prayed for. But the injunction cannot be granted in absolute terms. If the plaintiff could be evicted under the provisions of Madras Act XXV of 1955, the State can certainly do so.

In the result, the decrees and judgments of the courts below are set aside and the suit is decreed accordingly. The Second Appeal is allowed with costs. Leave granted)

V.C.S