A sub-tenant of a disabled person cannot claim the benefit of Section 38 (2) of the M. B. Zamindari Abolition Act and become a Pakka tenant. Such a sub-tenant is liable to be evicted under Sections 75 and 76 of the Tenancy Act.

A.H. Khan, J.

1. This is a petition under Art. 227 of the Constitution of India and is directed against an order of the Revenue Board, dismissing the revision of the petitioner.

2. The facts of the case giving rise to this petition are that Mst. Kesar Bai, the non-petitioner filed an application before the Tehsildar for the eviction of the petitioner under Sec. 76 of the M. B. Tenancy Act, alleging that the petitioner was a sub-lessee and since he is not handing back the possession of the land, he must be treated as a trespasser and as such be evicted. The Tehsildar held that the petitioner was a trespasser and ordered that the non-petitioner be placed in possession of the land in dispute, of which she was a Maurusi tenant. Against this order the petitioner filed successive appeals before the S.D.O. and the Additional Commissioner. They were all dismissed. He then filed a revision before the Revenue Board which was also dismissed.

3. The petitioner resisted the claim of Mst. Kesar Bai on the ground that according to Sec. 38 of the M. B. Zamindari Abolition Act he is entitled to become a Pakka tenant.

4. In the first place, the petitioner had not hitherto made any deposit and as such he cannot claim the benefit of section 38 (2) of the M. B. Zamindari Abolition Act.

5. Secondly, according to the Proviso the Clause 2 of Sec. 38 of the Madhya Bharat Abolition Act, even if he were to deposit an amount with the Tehsildar, he is not entitled to become a Pakka tenant, because according to Section 74 of the Madhya Bharat Land Revenue and Tenancy Act, he is a sub-lessee of a disabled person namely, the non-petitioner, who is a widow. He thus remains a sub-tenant and he cannot avail himself of the benefit of Section 38 (2) of the M. B. Zamindari Abolition Act.

6. Mr. Dixit, learned counsel for the petitioner contends that according to the proviso to Clause 2 of Sec. 38 of the Madhya Bharat Zamindari Abolition Act, even if he remains a sub-tenant, he is not liable to be evicted. In other words he contends that the sub-tenancy is perpetuated in eternity. But I am afraid that this position is not tenable. According to Section 75 of the Madhya Bharat Land Revenue and Tenancy Act a sub-tenant is liable to be evicted. If the disabled person, cannot avail himself or herself of the benefit given, then the benefit is as good as not. The interpretation sought to be put by Mr. Dixit nullities the benefit conferred on a disabled person. Moreover, it is nowhere stated that a sub tenant shall always remain a sub-tenant of a disabled person.

7. In ground No. 3 of the petition. It is said that if the sub-tenant is evicted, his right as a sub tenant would be taken away and that it would be against Art. 13 of the Constitution of India. But reference to Art. 13 is entirely out of place. If the law conferred some right on a sub-tenant, then the law can also take it away.

8. For reasons stated above the interpretation put upon the relevant sections of the Madhya Bharat Land Revenue & Tenancy Act and Sec. 38 of the M. B. Zamindari by the Board is correct and there is no force in the petition. The petition is disallowed with Rs. 50 as costs to the non-petitioner.

Shivdayal J.- 9. I his petition arises out of a decree for ejectment of a subtenant under section 10 of the Madhya Bharat Land Revenue and Tenancy Act (hereinafter called the Tenancy Act).

10. Shri Dixit first contends that the petitioner was entitled to the conferral of pakka tenancy rights on depositing compensation under section 38 of the M. B. Zamindari Abolition Act (hereinafter called the Abolition Act) and until the time given in that section does not expire (that is, upto October 2, 196o, by virtue of the Madhya Pradesh Tenancy Act, which has come into force and has extended the time upto that date), the petitioner, who was admittedly a sub-tenant under the Qanoon Mal cannot be ejected. The argument is that the provisions of section 38 of the Abolition Act override those of sections 75 and 76 of t