Shri Kishan Singh & Ors Vs. The
State of Rajasthan & Ors [1955] INSC 44 (27 September 1955)
AIYYAR, T.L. VENKATARAMA AIYAR, N.
CHANDRASEKHARA DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H.
IMAM, SYED JAFFER
CITATION: 1955 AIR 795 1955 SCR (2) 531
ACT:
Fundamental Rights, Infringement of-Act
settling fair and equitable rent restricted to a part of the State-Settlement
of rent of different localities on different dates on decennial
average-Possibility of variation in rates of rentIf amount to denial of
equality before law-Deprivation of landlord's right to realise rents freely and
without hindrance, if invasion of right to property-Retrospective enforcement
of rates of rent, if amounts to violation of right to property and acquisition
without compensation-Such power conferred on Settlement Officer, if arbitraryConstitution
of India, Arts. 14, 19(1)(f), 31(2)-Marwar Land Revenue Act (XL of 1949), ss.
81, 82, 83, 84, 85, 86.
HEADNOTE:
The petitioners, who are jagirdars of Marwar,
sought to impugn the constitutional validity of ss. 81 to 86 of the Marwar Land
Revenue Act which embody a scheme for fixing fair and equitable rents payable
by cultivating tenants on the ground that they infringed their fundamental
rights under Arts. 14, 19(1)(f) and 31(2) of the Constitution.
Their contentions were that after the merger
of Marwar in the State of Rajasthan the Act had become discriminatory as it
applied only to the jagirdars of Marwar and not to the entire body of jagirdars
of the State of Rajasthan, that settlement of rents made with reference to
different areas on different dates on the basis of previous ten years' average
of collections might result in different rates of rent and lead to inequality
such as is prohibited by Art.
14, that the Act deprived the landlords of
their right to realise rents from the tenants freely and without hindrance and
invaded their right to hold property guaranteed by Art.
19(1)(f) of the Constitution, that the power
conferred on the Settlement Officer by s. 86 of the Act to enforce the rates of
rent retrospectively is an invasion of their right to hold property and amounts
to acquisition of property without compensation and that it confers absolute
and uncontrolled discretion on the Settlement Officer and is an encroachment on
the right to hold property.
Held, repelling these contentions, that Art.
14 only prohibits unequal treatment of persons similarly situated and a
classification might properly be made on territorial basis, if that was germane
to the purposes of the enactment and no tenancy legislation can be held to
contravene the article solely on the ground that it does not apply to the
entire State. Before the petitioners could succeed it was 532 incumbent on them
to show that conditions obtaining in other parts of the State were similar to
those in Marwar and this they had failed to do.
Bowman v. Lewis [1879] 101 U.S. 22: 25 Law.
Ed. 989, referred to.
That the provision in the Act for assessment
of rents with reference to a portion of the area to which the Act applies is
not a contravention of Art. 14. To hold otherwise would be to make it
impossible for any State to carry on its settlement operation.
Biswambhar Singh v. The State of Orissa and
others, [1964] S.C.R. 842, and Thakur Amar Singhji v. State of Rajasthan,
[1955] 2 S.C.R. 303, applied.
That the fundamental right to hold property
in the case of a, landlord in respect of his tenanted lands is no more than the
right to receive reasonable rents and no legislation which has for its object
the settlement of fair and equitable rents can contravene Art. 19 (1)(f) of the
Constitution even though it may give such rents retrospective operation.
That the provision in s. 86 of the Act
empowering the Settlement Officer to give retrospective operation to the rates
of rent does not contravene Art. 19(1)(f) and, therefore, no question as to
whether such a provision is not of a regulatory character and as such
prohibited by Art.
19(5) can at all arise.
That it is well settled that a law which regulates
the relation of a landlord with his tenant is not one which takes property
within the meaning of Art. 31(2) even though it has the effect of reducing his
rights. Consequently, there is no contravention of Art. 31(2) of the
Constitution.
Thakur Jagannath Baksh Singh v. United
Provinces, [1943] 6 F.L.J. 55: A.I.R. 1943 F.C. 29 and Thakur Jagannath Buksh
v. United Provinces, L.R. 73 I.A. 123, relied on.
That s. 86 of the Act does not confer an
absolute and uncontrolled discretion on the Settlement Officer and such power
as it gives does not constitute an encroachment on the right to hold property
within the meaning of Art. 19(1)(f) of the Constitution.
Thakur Baghubir Singh v. Court of Wards,
Ajmer and another, [1953] S.C.R. 1049, explained and distinguished.
ORIGINAL JURISDICTION: Petitions Nos. 621,
655 and 678 of 1955.
Under Article 32 of the Constitution for the
enforcement of fundamental rights.
N.C. Chatterjee (S. K. Kapur and Ganpat Rai,
with him) for the petitioners.
533 M. C. Setalvad, Attorney-General for
India (Kan Singh and P. G. Gokhale, with him) for respondent No. 1.
K.R. Chowdhury, for Goma, Ghisa and Rama,
respondents in Petition No. 655 and Dhira, respondent in petition No.678.
1955. September 27. The judgment of the Court
was delivered by VENKATARAMA AYYAR J.-These are applications under article 32
of the Constitution by certain jagir dars of Marwar, challenging the
constitutionality of sections 81 to 86 of the Marwar Land Revenue Act No. XL of
1949 (hereinafter referred to as the Act) on the ground that they infringe the
fundamental rights of the petitioners under article 14, article 19(1) (f) and
article 31(2) of the Constitution.
These sections provide for fixing fair and
equitable rent payable by the tenants and prescribe the procedure to be
followed there for. Section 81 of the Act provides that when any local area has
been brought under settlement operations by a notification under section 64,
the Settlement Officer or an Assistant Settlement Officer shall inspect every
village in the local area, divide it into soil-classes and assessment circles,
select rent rates for the area and publish them in such manner as may be
prescribed. If objections to these proposals are received, he has to consider
them, and submit his report to the Board of Revenue. The Board has the power to
sanction the proposals with or without any modifications, and it has also the
power to direct further enquiry into the matters. With a view to arriving at
fair and equitable rates, the Settlement Officer is required under section 82
to have regard to the collection of rent and cesses in the nature of rent
during the ten years preceding the settlement excluding such years as the
Government may, by notification in the Official Gazette, declare to be abnormal
the average of the prices of agricultural produce during the same period, the
nature of the crops grown and the quantity of the produce and their value.
Section 82(2) provides that the rent rates shall not 534 exceed one-third of,
the value of the produce of un irrigated lands and one-fourth of the value of
the produce of irrigated lands. Under section 84, the Settlement Officer shall
determine rents whether by way of abatement, enhancement or commutation payable
for all holdings in the occupation of tenants on the basis of the rates
sanctioned by the Board of Revenue. Section 86 enacts that any rent fixed by
order of the Settlement Officer shall be payable from the first day of July
next following the date of such order, "unless the Settlement Officer thinks
fit for any reasons to direct that it shall be payable from some earlier
date".
Acting under section 81 of the Act, the
Settlement Officer formulated certain proposals with reference to the rent
rates in the villages comprised in the jagirs of the petitioners, and they were
published in the Gazette on 12th December 1953. Objections to those rates were
filed by the petitioners on the 12th January, 1954. On 13th October 1954 the
Additional Settlement Commissioner submitted his final proposals to the Settlement
Officer, who forwarded the same to the Board of Revenue for sanction. After
making further enquiry, the Board passed an order on 4-12-1954 determining the
rent rates payable. Subsequent to this, an order was also passed under section
86 of the Act bringing the sanctioned rate into operation from 1-7-1954. This
order is not itself the subject of attack in these proceedings, and it cannot
be, seeing that Petition No. 621 of 1954 was filed on 24th November 1954 before
that order was passed, and Petitions Nos. 655 and 678 of 1954 merely repeat
verbatim the allegations in Petition No. 621 of 1954. Before us, the
petitioners conceded that they were not impugning the correctness of the order
passed under section 86 in so far as it gave operation to the rates of rent
from 1st July, on its merits, but that they were attacking the section as bad
only as a step in establishing that the scheme of the Act, of which section 86
is an integral part is, taken as a whole, an infringement of their fundamental
rights under articles 14, 19 and 31(2). We have now to consider 535 whether
sections 81 to 86 of the -Act are bad as infringing the above provisions of the
Constitution.
The contention that sections 81 to 86 of the
Act are void as being repugnant to article 14 is sought to be made out on two
grounds. It is stated firstly that the Act applies' only to what was prior to
its merger the State of Marwar, that the present State of Rajasthan comprises
Marwar and 17 other States which have merged in it, and that as the Act, as it
stands, is directed against the jagirdars in one area of the State and not the
whole of it, it has become discriminatory and void. This contention is clearly
untenable. What article 14 prohibits is the unequal treatment of persons
similarly situated, and therefore before the petitioners can claim the
protection of that article, it is incumbent on them to establish that the
conditions which prevail in other areas in the State of Rajasthan are similar
to those which obtain in Marwar. But of this, there has been neither allegation
nor proof. On the contrary, it is stated by the respondents in para 10 of their
statement that the tenants in the jagirs of Marwar were paying much more by way
of rent and cesses than those in the Khalsa area of the State, that with a view
to remove the inequality between the two classes of tenants within the State, a
law was passed in 1943 providing for settlement of rent, and that again on
10-1-1947 another law was passed abolishing all cesses (lags) and fixing the
maximum share of rent payable in kind. These special features, it is argued,
form sufficient justification for a separate legislation for this area, It is
also stated that the other States had their own rent laws suited to their
conditions. There are no materials on which we could hold that the impugned Act
is discriminatory in character, and we cannot strike it down merely on the
ground that it does not apply to the whole of the State of Rajasthan.
A similar question arose for decision in
Bowman v.
Lewis(1). There, some of the areas in the
State of Missouri were governed by a judicial procedure diff(1) [1879] 101 U.S.
22: 25 Law. Ed 989.
68 536 erent from that which prevailed in
others. Repelling the contention that this differentiation offended the equal
protection clauses of the Fourteenth Amendment, the Court observed:
"Each State has the right to make
political subdivisions, of its territory for municipal purposes, and to
regulate their local government. As respects the administration of justice, it
may establish one system of courts for cities and another for rural districts;
one system for one portion of its territory and another system for another
portion.
Convenience, if not necessity, often requires
this to be done, and it would seriously interfere with the power of a State to
regulate its internal affairs to deny to it this right If a Mexican State
should be acquired by a treaty and added to an adjoining State or part of a
State in the United States, and the two should be erected into a new State, it
cannot be doubted that such new State might allow the Mexican laws and
judicature to continue unchanged in the one portion and the common law and its
corresponding judicature in the other portion. Such an arrangement would not be
prohibited in any fair construction of the Fourteenth Amendment. It would not
be based on any respect of persons or classes, but on municipal considerations
alone and a regard to the welfare of all classes within the particular
territory or jurisdiction".
This Court has also repeatedly held that
classification might properly be made on territorial basis if that was germane
to the purposes of the enactment. Having regard to the fact that the conditions
of tenants vary from locality to locality, we have no hesitation in holding
that a tenancy legislation restricted to a portion of a State cannot be held on
this ground alone to contravene article 14.
The second ground urged in support of the
contention that article 14 has been infringed is that discrimination -must
result from the settlement of rent being taken up only with reference to
portions of the 537 area to which the Act applies and not to the whole of it,
because the rent rate is to be fixed on the basis of the average of the ten
years preceding the settlement; and if the proceedings are started for
different areas on different dates, that might result in different rates being
fixed, and that would make for inequality such as is prohibited by article 14.
We are unable to agree with this contention.
Settlement operations can be conducted only
by a specialised staff having technical knowledge and administrative
experience, and it might be beyond the capacity of the State to undertake them
for the whole area at one and the same time. To accede to the contention of the
petitioners would, in effect, be to prevent the States from carrying on
settlement operations. It was held by this Court in Biswambhar Singh v. The
State of Orissa and other8(1) and in Thakur Amar Singhji v. State of
Rajasthan(2) that a provision authorising the taking over of estates on
different dates was not repugnant to article 14, and the principle of those
decisions would apply to the present case as well. The contention that the
impugned provisions are in contravention of article 14 must, therefore, be
rejected.
It is then contended that the provisions in
question are repugnant to article 19(1) (f) of the Constitution, because they
deprive landlords of their right to realise rents from the tenants freely and
without hindrance, and are an encroachment on their right to hold property. The
provision in section 82 that the Settlement Officer should, in determining the
average collection for the previous ten years exclude from consideration
abnormal years as notified by the Government was particularly attacked as
a..device to reduce the rent payable to the landlord and an invasion of his
rights to the property. We are unable to agree with this contention. The
fundamental right which a citizen has to hold and enjoy property imports only a
right to recover reasonable rent when the lands are cultivated by a tenant, and
therefore a legislation whose object is to fix fair and equitable (1) [1954]
S.C.R. 842, 845.
(2) [1955] 2 S.C.R. 303, 538 rent cannot be
said to invade that right. The contention that the provision in section 82(1)
(a) that abnormal years as notified in the Gazette should be excluded in
determining average collections is calculated to reduce the rent, and is
therefore unreasonable is unfounded, because a declaration that a year is
abnormal is made not only when there are bumper crops but also when the yield
is very low, and the provision is intended equally for the benefit of the
tenant and of the landlord. A provision of this kind is usual in all tenancy
legislation, and there is nothing unreasonable or unfair about it.
It was next contended-and this was the
contention most pressed on us-that section 86 is bad as it confers on the
Settlement Officer a power to bring the rent rates into operation from a date
earlier than' the succeeding year and even retrospectively from a date prior to
the settlement, and that such a power was repugnant to both article 19(1)(f)
and article 31(2). The argument with reference to Article 19(1)(f) is that
section 86 is an encroachment on the rights of a person to hold property, and
can be valid only if it falls within article 19(5), that it is only a law of 'a
regulatory character that is protected by article 19 (5), that there could be
regulation only with reference to rights to be exercised in future,. and that a
law giving retrospective operation is consequently outside article 19(5). This
contention rests on an assumption for which there is no basis. The question
whether a law is valid under. Article 19 (5) can arise only when there is a
violation of the fundamental right declared in article 19 (1) (f), and if the
right to hold property imports, as we have held it does, only a fight to
recover reasonable rent from cultivating tenants, that right cannot be held to
have been invaded by a law fixing reasonable rent, even when it is retrospective
in operation. If the rent fixed is reasonable with reference to a period
subsequent to the settlement, it must be reasonable for the period prior to it
as well, and if the settlement is not an encroachment on the rights of the
holder as regards the future-and that is conceded-it cannot be an encroachment
as regards 539 the past. A consideration, therefore, of the question whether a
law under article 19(5) should be regulatory' and whether a law with
retrospective operation could be said to be regulatory would be wholly
irrelevant for the purpose of the present controversy.
The argument in support of the contention
that section 86 is repugnant to article 31(2) is that to the extent that it
gives retrospective operation, it deprives the landlord of the right to rent
which had accrued prior to the settlement, and that is taking property without
payment of compensation.
But it is well settled that a law which
regulates the relation of landlord with his tenant is not one which takes
property within article 31(2), even though it has the effect of reducing his
rights. In Thakur Jagannath Baksh Singh v. United Provinces(1), the question
arose for decision whether the provisions -of Act XVII of 1939, United
Provinces, under which the rent payable to a landlord became diminished were
obnoxious to section 299(2) of the Government of India Act, 1935. It was held
by the Federal Court that they were not, and in affirming this decision on
appeal, the Privy Council in Thakur Jagannath Baksh Singh v. United Provinces(2)
observed:
"The appellant relies on certain express
provisions of the Government of India Act. Thus he relies on section 299 of the
Act, which provides that no person, shall be deprived of his property in
British India save by authority of law, and that neither the Federal nor a
Provincial Legislature shall have power to make any law authorising the
compulsory acquisition of 'land for public purposes save on the basis of
providing for the payment of compensation. But in the present case there is no
question of confiscatory legislation. To regulate the relations of landlord and
tenant and thereby diminish rights, hitherto exercised by the landlord in
connection with his land, is different from compulsory acquisition of the
land".
It was finally urged that section 86 in so
far as it (1) [1948] 6 F.L..J. 55; A.I.R. 1948 F.C. 29.
(2) [1946] L.R. 73 I.A. 123.
540 conferred authority on the Settlement
Officer to give retrospective operation to the rent rates was bad, because the
exercise of that authority was left to his arbitrary and uncontrolled
discretion, that the Act laid down no rules and prescribed no conditions under
which the discretion had to be exercised, and that the power conferred in those
terms must be held to be unconstitutional. The decision in Thakur Raghubir
Singh v. Court of Wards, Ajmer and another(1) was relied on, in support of this
contention. There, the question was as to the validity of a power conferred on
the Court of Wards to take over the management of an estate "if a landlord
habitually infringes the right of a. tenant".
Under the Act, the decision whether the
condition aforesaid was satisfied depended on the subjective satisfaction of
the Chief Commissioner., and that -was final and not liable to be questioned in
civil courts. It was held that a power which could be exercised at the absolute
discretion of the authority was an encroachment on the rights of a citizen to
hold property under article 19(1)(f), and that it was not saved by article
19(5). But, in the present case, section 86 of the Act expressly lays down that
if a Settlement Officer decides to bring rates into operation from a date
earlier than the following 1st of July, it must be for reasons. There is no
force in the contention that section 86 does not lay down under what
circumstances such an order could be passed, because the very nature of the
thing requires that a large discretion should be left to the authority.
Discretion which is wide is not necessarily arbitrary. It was said that under
section 233 of the Act the civil courts are debarred from enquiring into the
reasonableness of the order; but that is because matters concerning revenue and
settlement are within the exclusive jurisdiction of revenue courts, and under
section 62 of the Act, the Board of Revenue has revisional jurisdiction over
all orders passed in connection with settlement. We think that the power
conferred on the Settlement Officer to fix an earlier date for giving operation
to the rent rate is reasonable and valid, (1) [1953] S.C.R. 1049.
541 and that it invades no fundamental rights
of the landlord.
For the reasons given above, we must hold
that the scheme embodied in sections 81 to 86 of the Act does not transgress
any of the Constitutional limitations, and is valid.
In the result, the petitions are dismissed
but in the circumstances, without costs.
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