The revenue officer does not have the discretion to refuse a declaration of occupancy tenancy under Section 40 of the Central Provinces Tenancy Act, even in cases where the conditions laid down in the section are fulfilled.

Sinha, C J—This is an application under Article 226 of the Constitution for a writ of certiorari in respect of an order passed by respondent no. 1 as a member of the Board of Revenue in respect of proceedings taken under section 40 of the Central Provinces Tenancy Act (I of 1920).

2. It appears that the petitioner is a sub-tenant of respondent no. 2, who is the absolute occupancy tenant in respect of the khasra numbers stated in the petition filed by the petitioner before the Sub-Divisional Officer, Jabalpur, for a declaration being made in his favour that he was an occupancy tenant of those lands on the ground that respondent no. 2 had been habitually sub-letting the same. The Sub-Divisional Officer got an enquiry made by an Extra-Assistant Commissioner, who reported that the petitioner had proved that he was a sub-tenant of the second respondent in respect of the khasra numbers detailed in the order of the Sub-Divisional Officer and that he should be declared to be an occupancy tenant of the same. The Sub-Divisional Officer upon that report made an order on the 22nd April 1948 to the effect that the petitioner be declared to be an occupancy tenant of the fields aforesaid at the rent already fixed at the time of the settlement.

3. An appeal was preferred from that order, and the appellate tribunal, the Additional Deputy Commissioner of Jabalpur, dismissed the appeal holding that the provisions of section 40 of the Act had been attracted to the case. A second appeal was then brought before the Board of Revenue by the second respondent, and in the grounds of appeal it appears that the only ground taken by way of attack against the concurrent orders of the Courts below was that the lands had been under a lease made before the first day of November 1939 within the meaning of the second proviso to section 40 of the Act.

4. It appears that the learned member of the Board of Revenue who dealt with the case on second appeal has grievously erred in taking into consideration matters wholly extraneous to the provisions of the section in question, viz., section 40. The following excerpts from the order would show how he considered the matter in controversy: Thus it is clear that the grant of occupancy tenancy status to a sub-tenant is discretionary. New the question is in what types of cases should the revenue officer refuse to confer occupancy tenancy status on a sub-tenant. In the Explanation in section 40 it is stated that it is not necessary to make the presumption in the case of a minor or any other person subject to a legal disability or physical infirmity or a woman. In this case obviously a certain amount of leniency is indicated. The counsel for the respondent said that it is quite necessary to confer the occupancy tenancy status on sub-tenants if habitual subletting is proved, in all cases in which the tenant is not a minor or a person subject to a legal disability or physical infirmity or a woman. I cannot agree with this view. The discretionary power is unfettered.

5. And then he adds in a later portion of the order: I am, therefore, of opinion that in all cases where personal cultivation is either impossible or very difficult a lenient view should be taken and declarations should be refused in really deserving cases.

6. The learned member of the Board of Revenue then proceeded to consider whether there had been rack-renting in the case. He found that though the recorded rent payable by respondent no. 2 was Rs. 14 a year the fact that he was realizing Rs. 82 from the petitioner for about 20 years preceding the date of the application was not an instance of rack-renting. In our opinion, whether or not there had been rack-renting is a matter entirely irrelevant to the present controversy.

7. Section 40 is in these terms:

(1) Subject to rules made under section 109, a Revenue Officer may, either of his own motion or on an application made by a sub-tenant holding land from a tenant, declare such sub-tenant to be an occupancy ten