V. Bhardwaj, J.

[1] This petition under Article 226 of the Constitution was originally filed by 19 persons who were all ex-intermediaries of the erstwhile Banaras State which merged with the State of Uttar Pradesh in November 1949. Subsequently the petition was amended and the names of 18 of the petitioners were removed leaving only one petitioner Markande Upadhya so that the petition has been heard on merits as a petition presented by him alone.

It appears that before the merger of the erstwhile Banaras State in the State of Uttar' Pradesh, the rights of zamindars and cultivators in the State of Banaras used to be governed by the Banaras State Tenancy Act (Act 3 of 1949) which came into force on 1-10-1949. When the Banaras State was merged in the State of Uttar Pradesh, this Banaras State Tenancy Act (3 of 1949) continued to remain in force under clause 6 of the Banaras State (Administration) Order, 1949, not having been repealed by the Banaras Application of Laws Orders, 1949, and replaced by any Act which was already in force in the rest of the State of Uttar Pradesh. The petitioner at the time of merger held 87 bighas and 5 biswas of sir, his zamindari rights being those of a "muafidar. He also had 2 bighas and 13 biswas of khudkasht. It is contended by the petitioner that the local rate assessed on him was below the amount which would be assessed on a land revenue of Rs. 250/-.

The U. P. Zamindari Abolition and Land Reforms Act was extended to the area which was comprised in the erstwhile Banaras State on 30-6-1953, under Notification No. 1830/I-A-1060-53, with certain modifications. Amongst the provisions of the U. P. Zamindari Abolition and Land Reforms Act which were modified was Section 10. In Section 10 as it applied to the State of Uttar Pradesh, every tenant of land recorded as* sir of an intermediary who on the date immediately preceding the date of vesting was assessed in Uttar Pradesh to a land revenue of more than Rs. 250/- annually or where no land revenue was assessed, was assessed to a larger amount of local rate than would be payable on a land revenue of Rs. 250/-annually or in the case of an under-proprietor, sub-proprietor or permanent tenure-holder, the rent payable by whom was more than Rs. 250/-annually was to be deemed to be a hereditary tenant thereof at the rate of rent payable by him on the said date and such land was not for the purposes of Section 18 to be deemed to be sir. Under this provision, if the holder of the sir on the date immediately preceding the date of vesting was assessed to land revenue of Rs. 250/- or less, or, if no land revenue was assessed, he was assessed to an amount of local rate equal to or larger than the amount which would be payable on a land revenue of Rs. 250 annually, or in the case of an under-proprietor, sub-proprietor or permanent tenure holder the rent payable by him was Rs. 250 or less, the tenant of the sir of such sirholder did not acquire the rights of hereditary tenant. The sirholder himself became the bhumidhar of that land under Section 18 and the tenant of such sir land became an adhivasi under Section 20.

When applying the U. P. Zamindari Abolition and Land Reforms Act to the areas which were comprised in the erstwhile Banaras State, the State Government amended Section 10 so as to do away with this limitation on the acquisition of rights of a hereditary tenant by the tenant of the sir land. The result was that in those areas, irrespective of the land revenue payable by or local rate assessed on the intermediary or the rent payable by the under-proprietor, sub-proprietor or permanent tenure-holder, the tenant of his sir land became a hereditary tenant, the result being that the sirholder lost his rights as such and did not acquire bhumidhari rights under Section 18.

This modification in Section 10 affected the rights of the petitioner who was a sirholder in the areas previously comprised in the Banaras State. If Section 10 had been applied without an