P L D 1976 Lahore 328 (PLP)

(c) the petitioner is a leassee and not a tenant (3) Previously I had heard this case on 1st August 1975 when the learned advocate general appeared for the state. However while writing judgment I realised that the consequences of this judgment will be far reach ing and of great public importance. I, therefore, fixed this case for rehearing and also sent for Mr. Muhammad Ismail Loona, the learned Legal Adviser of the Punjab Land Commission. I heard them all again on 10th Septem ber 1975.

4. The fate of the entire case of the petitioner depends on the decision of Issue No.

4. It is contended by the learned counsel that para. 25(l) of M. L. R. 115 gives a protection to the tenants so that they cannot be ejected except under a decree or order passed by the Revenue Court for the specific grounds given therein. It reads as under:- "25(1)-A tenant shall not be ejected from his tenancy unless it is established in a Revenue Court that he has- (a) failed to pay the rent in accordance with the terms of his tenancy; or (b) used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it; or (c) failed to cultivate; or arrange for the cultivation of the land com prised in the tenancy in accordance with the terms thereof, or if there are no express terms in this behalf, in accordance with the customary manner of cultivation in the locality; or (d) sublet his tenancy."

5. The first point to be determined is as to what the Legislature meant by the word tenant 7 The word `tenant' has not been defined in M. L. R.

115. However, by a notification issued by the Land Commission, under para. 4(8) of M. L. K. 1.15, on 23rd April 1973, the definition of this term as given in section 4(26) of the West Pakistan Land Revenue Act, was adopted. This reads as under:- "4(26)-`tenant' means a person who holds land under another person, and is, or but for a special contract, would be, liable to pay rent for that land to that other person, and includes the predecessors and successors in interest of such person, but does not include- (a) a mortgagee of the rights of a land-owner, or (b) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the provisions of this Act, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or (c) a person who takes from Government a lease of unoccupied land for the purpose of subletting it." On 8th June 1973, another notification clarifying the one noted above was also issued. This is as follows:- "In continuation of Notification No. DSL-142/73/1828-LC(II), dated tree 23rd April 1973, the Land Commission of the (Punjab is pleased to clarify that the word `tenant' as used in paragraph 25 of Martial Law Regulation 115 does not include a lessee, who is covered by the definition of `landlord' as given in subsection (12) of section 4 of the West Pakistan Land Revenue Act, 1967 (West Pakistan Act XVII of 1967)." Apparently, the petitioner fulfils all the qualifications of a tenant as given in section 4(26) above. The saving clauses (a), (6) and (c) also do not exclude him from this definition, as his land is not unoccupied Government Land, for the purpose of subletting it. The definition of 'tenant' under the Tenancy Act is also similar to the one under the Land Revenue Act. The Land Revenue Act on the other hand has been made applicable to all the proceedings arising cinder the Colonization of Government Lands Act vide its section

7. A 'tenant' has been defined in the Colonization of Government Lands Act as follows: "'Tenant' means any person holding land in colony as a tenant of Government, and includes the predecessors and successors-in-interest of a tenant." The outcome of the above discussion is that `tenant' as defined in the Land Revenue Act has the same qualifications as required of a `tenant' under the Colonization of Government Lands Act.

6. Under the Colonization of Government Lands Act a grantee of the Government Lands has throughout been mentioned as a `tenant' and grant a 'tenancy.' According to section 10(4) such a person will be deemed to be a tenant and shall have a right or title in the land only after such a order has been passed and he has been put in possession of the land with the permission of the Collector. Under section 11 the grant of tenancy is a trans of land within the meaning of the Crown Grants Act, 1895. According to section 12, temporary absence of a tenant shall not infringe the condition residence. Section 15 terms the purchaser of Government land a tenant till he pays the full amount. Similarly, the subsequent sections also make it quite clear that the grantee of State land under the Statement of Conditions issued under this Act is a tenant. This tenancy is heritable also as provided therein. Nowhere, in this Act the term `lessee' has been used. Out of these tenants the only category that is excluded from the definition as given in section 4(26) of the Land Revenue Act above is the one described in clause (c).

7. The learned Advocate-General while relying on the definition of the word, `tenant' as given in section 4(26) of the Land Revenue Act, had laid emphasis on the term 'or but for special contract', to say that as the peti tioner was holding land under a special contract he is not a tenant. The argument of the learned Advocate-General is not valid. The term 'but for a special contract' is about the payment of rent and not about excluding such person from the definition of the term. According to this phrase a person who is liable to pay rent as well as the one, who would be liable to pay rent unless there was a special contract, is a tenant. It, therefore, enlarges the definition rather than restricting it. The only difference this phrase makes is that if a person is not paying rent due to a special contract and would have otherwise been liable to pay, if that contract was not there, he is also a tenant. In any case this discussion is not very necessary in this case as admittedly the petitioner was paying rent.

8. The learned counsel for the respondent then submitted that the petitioner is a lessee and not a tenant. According to him the lessee is a person who holds land under another for a fixed term. This contention is not supported by the definition referred to above. No provision of law or a precedent judgment was cited to reinforce this argument. The petitioner, as said above, does fulfil all the requirements of a 'tenant'. Section 40 of the Tenancy Act is specifically meant to cater for such a situation. Had such a person not been a tenant, he would have neither been described as a tenant under section 40 nor would there be a remedy provided under that Act. It to be noted that the definition of a `tenant' m the Tenancy Act is the same as in the Land Revenue Act.

9. The learned Advocate-General then pleaded that the lessee is a person who holds land on payment of an agreed rent in cash. This con tention is also not supported by the definition of the term 'tenant' read with the definition of the word 'rent' under the same Act. It is as follows:- 4(21)-'Rent' means whatever is payable to a landlord in money or kind by a tenant on account of the use or occupation of land held by him but shall not include any access or other contribution or due or any free personal service." There is thus no distinction in the status of persons paying rent in cash o kind. Even according to the dictionary a 'lessee' is 'a tenant under a lease'. A lease on the other hand means a contract between parties by which on conveys lands or tenements to other for life, for a term of years or at will C usually in consideration of rent or other periodical compensation. It is, therefore, quite clear that the terms 'lessee' and 'tenant' are synonomous and one cannot be distinguished from the other on the basis of payment of rent in cash or kind. According to Wharton's Law Lexicon a 'tenant' means:- "one that holds land of any one inclusive of the sovereign; it is therefore applicable to every subject holding land in this country; but the word is always used relatively, and as the relation to the sovereign is seldom called in question, it more commonly signifies one who holds of another subject, as (formerly) of the lord of a manor, or of a landlord: the owner is seldom characterized as tenant except where it is necessary to particularize the quantity of his estate. The term is frequently used to denote a lessee." Section 10(4) of the Colonization of Government Lands Act specifically terms every grantee of Government land as a 'tenant'. The petitioner thus is not at all a 'lessee' to be denied the protection of para. 25 of M. L. R. and would in no case be covered by the notification of 8th June referred to in para. 5 above.

10. The learned counsel also relied on the notification dated 8th June 1973, reproduced above to say that it specifically excluded a lessee from the operation of para. 25 of M. L. R. 115 and that a lessee can no longer claim any benefit under that provision The notification lays down that a tenant as used in para. 25 of M. L. R. 115 does not include a lessee who is covered by the definition of 'landlord'. It thus makes it absolutely clear that not all but only those lessees will be excluded who are covered by the $ definition of 'landlord'. I, therefore, need refer to the definition of 'landlord' as given in the West Pakistan Land Revenue Act, 1967, which, is as follows:- "4(12)-'Landlord' means a person under whom a tenant holds land, and to whom the tenant is, or but for the special contract, would be liable to pay rent for that land, and shall include a lessee of such person, and the predecessors and successors-in-interest of such person." This definition makes it straight that there cannot be a 'landlord' without a tenant. Therefore, only such a lessee shall be included in the term 'landlord', who has a tenant under him. The 'tenant' on the other hand is one who is liable to pay rent to his landlord. The second notification only creates an exception to the class of tenants as defined under section 4(26) of the Land Revenue Act. Thus in order to avail himself of the protection under para. 25' a person must be holding land under another as provided in section 4(26) ,but no other person should hold the same land under him as a tenant. The distinction between the definition of 'landlord' and 'land-owner' as given in -section 4(13) of the Land Revenue Act also brings out the point conspicuously. Thus the lessee who has been excluded from the benefits of para. 25 of M. L. R. 115 is a sub-landlord and not a tenant. It would, therefore, not be, correct to say that the 'lessee' i.e. actual tiller of the land has been deprived e of the protection. Further, this notification is in continuation of one dated 23rd April 1973, referred to above and has been apparently issued neither with the approval of the President nor under his direction, as provided in para. 4(8) of M. L. R.

115. Mr. Loona did say that while approval obtained in the case of the notification dated 23rd April 1973 he was not sure if any such approval or direction was given with regard to the second one. The second notification is, therefore, not valid. 10-A. The notification is invalid and inoperative even on another ground. It was meant to clarify the import of para. 25 of M. L. R. 115 and not to amend it. Further, not only that it fails to show the need for its issuance o -the difficulty that it was likely to surmount but it rather defeats the very purpose of para. 25 of M. L. R. 115 i.e. protection of tenant against ejectment. As it tends to deprive a class of tenants of a guarantee against summary ejectment it is ultra vires of the Martial Law Regulation No. 115.

11. The learned Advocate-General also relied on a judgment of Sind & Baluchistan High Court in Wali Dad v. Deputy Commissioner Karachi (P L D 1975 Kar. 202) where their Lordships held that a lessee is not the same person as a tenant or a Hari. In that case also their Lordships had to interpret a similar instruc tion issued by the Sind Land Commission which reads as under: "A question has been raised by some interested persons whether the word 'tenant' as used in paragraph 25 of Martial Law Regulation 115 also includes a 'lessee'. The Sind Land' Commission is pleased to clarify that the word "tenant' as used in paragraph 25 of Martial Law Regulation 115 does not include a lessee who is covered by the definition of 'Landlord' as given in subsection (12) of section 4 of the West Pakistan Land Revenue Act, 1967 (West Pakistan Act XVII of 1967). Construing this press note their Lordships held that term 'Landlord' as defined in section 4(12) of the West Pakistan Land Revenue Act includes a lessee and thus the term 'tenant' used in M. L. R. 115 is not used in the generic sense but is confined to a cultivator i.e. a 'hari' and not a lessee. Firstly, the facts of the case do not make it quite clear if the petitioner in that case was himself cultivating the land or had a sub-lessee (Hari). Secondly, with great respect, I may say that their Lordships perhaps were either not ,called upon or did not feel the necessity to discuss the difference of these two words in that judgment. They have also not gone into the import of the definition of 'Landlord'. 11-A. As discussed above, only such lessee in this definition is excluded who is covered by the definition of 'landlord' but not that of the 'tenant'. -So the tenant who answers the requirements as given in section 4(26) of the Land Revenue Act still has the protection of para. 25 of M. L. R. 115 and I ,the exclusion is only of that lessee who is not cultivating the land himself. The sum and substance of the whole discussion is that there is no distinction between a lessee and a tenant as discussed above. Secondly, the Colonization of Government Lands Act specifically terms its grantees as 'tenants' and no 'lessees'. Thirdly, the 'lessee' referred to in that notification is not a 'tenant' but a 'landlord'. What has been adopted is the definition of 'tenant' under, section 4(26) and what has been excluded is the 'lessee' who is included in the definition of 'landlord' as given in section 4(12) of the Land Revenue Act, 1967.

12. The next point that falls for determination is whether a tenant whose lease expired in Rabi, 1972 would be entitled to this protection at all. Martial Law Regulation 115 was promulgated on 11th March 1972, when the lease of the petitioner still subsisted. The petitioner thus became seized of this right and, would be entitled to it even after the expiry of his tenancy. The petitioner, therefore, is a 'tenant' as covered by para. 25 of M. L. R. 115.

13. The power of ejectment from the State land is provided in section 32. of the Colonization of Government Lands Act. It reads as under:- "

32. Power of re-entry in case of squatters and trespassers.-When tile Collector is satisfied that any person has taken or is in possession of land in a colony to which he has no right or title, the Collector may, in addition to any other powers he may possess, forthwith re-enter upon the land and resume possession of it and take possession of crops, trees and buildings thereon on behalf of Government without payment of any compensation whatsoever. The learned counsel for the petitioner submitted that this section has become inoperative and ineffective in view of para. 3 of M. L. R. 115 which reads as under:- "

3. Regulation to override other laws, etc.-The provisions of this Regulation, and any rule or order made there under, shall have effect. notwithstanding anything to the contrary in any other law or any order or decree of a Court or Tribunal or other authority, or in any rule of custom or usage, or in any contract, instrument, deed or other document M. L. R. 115 is a special enactment. It came into force after the Coloniza tion of Government Lands Act. It deals with the same subject under para 25, as section 32 above deals. Para. 25, M. L. R. 115 shall, therefore, prevail and section 32 shall stand impliedly repealed.

14. In view of the above, the Issue No. 4 should have been decided in favour of the petitioner. The petitioner would have a cause of action as well when he was threatened with ejectment as well as a locus stand! to file the suit. As the petitioner was in possession, therefore, the same should have been protected. He was, thus, entitled to the grant of temporary injunction. The result is that the revision petition is accepted and the suit of the petitioner decreed. As it was a case of first impression, involving not an easy question of law, there will be no order as to costs. S. A. H. Petition accepted.