Maharana Shri Jayvantsinghji
Ranmalsinghji Vs. The State of Gujrat [1961] INSC 365 (22 December 1961)
DAS, S.K.
DAS, S.K.
SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1962 AIR 821 1962 SCR Supl. (2) 411
CITATOR INFO :
RF 1963 SC 864 (30) RF 1970 SC 564 (43) F
1971 SC1992 (14) RF 1977 SC2121 (1) R 1979 SC1550 (14)
ACT:
Land Tenure, Abolition of-Amendment of
enactment-If creates a new class of permanent tenants-Constitutional
validity-If infringes fundamental rights of erstwhile tenure-holders- Bombay
Land Tenure Abolition Laws (Amendment) Act, 1958 (Bom. LVII of 1958), ss. 3, 4,
6-Constitution of India, Art. 14, 19 (1)(f), 31, 31-A.
HEADNOTE:
The petitioners, who were tenure-holders,
challenged the constitutional validity of the Bombay Land Tenure Abolition Laws
(Amendment) Act, 1958 and in particular ss. 3 and 4 read with s. 6 of that Act,
as infringing their fundamental rights guaranteed by Arts. 14, 19 and 31 of the
Constitution. Their case in brief was that those provisions by making certain
non-permanent tenants permanent as from the commencement of the Bombay
Taluqdari Tenure Abolition Act, 1949, enabled them to acquire occupancy right
by payment of six times the assessment or the rent under s. 5A of that Act
instead of 20 times to 200 times the assessment under s. 32H of the Bombay
Tenancy and Agricultural Lands Act, 1948, 412 as amended in 1956, and thereby
substantially deprived the petitioners of the rights acquired by them on the
'tillers' day, April 1, 1957, when they ceased to be tenure-holders. It was
urged that the impugned Act was a piece of colourable legislation in that it
had confiscated, under the guise of defining a permanent tenant or changing a
rule of evidence, a large part of the purchase price the petitioners were
entitled to from their tenants, and that the State Legislature had not the
competence to enact it as it was not saved by Art. 31A of the Constitution.
^ Held, (Sarkar and Mudholkar, JJ.,
dissenting), that ss.3, 4 and 6 of the Bombay Land Tenure Abolition Laws
(Amendment) Act, 1958, in so far as they deemed some tenants as permanent
tenants in possession of Taluqudari land, were unconstitutional and void. Under
the guise of changing the definition of a permanent tenant and changing a rule
of evidence, they really reduced the purchase price that the petitioners were
entitled to receive under s. 32H of the Bombay Tenancy and Agricultural Lands
Act, 1948, as amended in 1956, from some of their tenants on the "tillers'
day." Per Sinha, C.J., and Das, J.-There can be no doubt that s. 4 of the
impugned Act, properly construed, created a new class of permanent tenants not
contemplated by s. 83 of the Bombay Land Revenue Code, 1879, and not in
existence on the 'tillers' day", and the combined effect of ss. 3, 4 and 6
of the impugned Act was that if the tenure holder did not make an application
under s. 6 within six months from the commencement of the impugned Act for a
declaration that a tenant under him was not a permanent tenant, the name of the
tenant would be recorded as a permanent tenant if he fulfilled the conditions
laid down by s. 4 and thereafter he would be deemed under s. 3 to be a
permanent tenant and under s. 4 all the provisions of the Taluqdari Abolition
Act 1949, would apply to him. The result of this combined effect would be to
deprive the tenure-holder of any real opportunity of contesting the claims of
the tenant and deprive him of the purchase price prescribed by s. 32H of the
Bombay Tenancy and Agricultural Lands Act, 1948.
The right of the petitioners to the said
purchase price from those of their tenants who were non-permanent on April 1,
1957, was a right of property guaranteed by Art. 19 (1) (f) and the impugned
sections adversely affected that right with retrospective effect Section 6,
tested in the light of Art. 19(5), could not be said to impose a reasonable
restriction in the interest of the general public.
413 Bombay Dyeing and Manufacturing Co. Ltd.
v. State of Bombay, [1958] S.C.R. 1122, applied.
Sri Ram Ram Narain Medhi v. The State of
Bombay. [1959] Supp. 1 S.C.R. 489, referred to.
Article 31A of the Constitution had no
application. The relation between the tenure- holders and the tenants had
changed from that of landlord and tenant to that of creditor and debtor on
April 1, 1957, and the impugned Act which affected such rights, did not come
within the protection of that Article. In view of the true scope and effect of
ss. 3, 4 and 6, the impugned Act could not fall within any entry of List II or
List III of the Seventh Schedule to the Constitution and was a piece of
colourable legislation.
K.C. Gajapati Narayan Deo v. State of Orissa
[1954] S.C.R. 1, referred to.
Per Sarkar and Mudholkar, JJ.-Section 4 of
the impugned Act did not expand the definition of a permanent tenant and did
not take away any property that was vested in the landlord on the "tillers
day". Nor did it confer any new property on the tenant. It only applied to
and rescued a permanent tenant faced with the task of proving the nature of his
tenancy, by raising a presumption of permanency in his favour. If in fact his
tenancy was not permanent and had been extinguished by law but he was
tentatively recorded as permanent, the landlord could rebut the presumption in
a proceeding under s. 6 (1) by producing the documents in his possession or
otherwise by showing that the tenancy was not in fact permanent and, therefore,
had been extinguished by s. 32(1) of the Bombay Tenancy and Agricultural Lands
Act, 1948, and claim compensation or the purchase money under s. 32H(1)(II) of
the Act, that right of his not having been affected in any way by the impugned
Act. If he failed, he would get the purchase price according to s. 5A of the
Bombay Taluqdari Tenure Abolition Act, 1949, which would not be and was not
challenged.
Dhirubha Devisingh Gohil v. State of Bombay,
[1955] 1 S.C.R. 691, referred to.
The impugned Act dealt with matters arising
out of the relationship between landlord and tenant. Its provisions were not
intended to apply where such relationship did not subsist. The Act was,
therefore, within the competence of the Legislature under entry 18 of List II
of the Seventh Schedule to the Constitution and was thus not a piece of
colourable legislation.
414 There was, therefore, no infringement of
Art.
31(1) and the Act was within the protection
of Art. 31A of the Constitution and its Constitutional Validity could not be
challenged under Art. 14 and 19(1)(f) of the Constitution.
Held, further, that the distinction made
between tenure villages and non-tenure ones was a classification based on the
extent of availability of the material for raising the inference or the
presumption and such classification had a reasonable nexus with the object
sought to be achieved by the Act.
Per Ayyangar, J.-There was no basis for the
argument that s. 4 of the impugned Act merely intended to provide a rule of
evidence for determining who was a permanent tenant under s. 83 of the Bombay
Land Revenue Code, 1879, and did not extend the category of such tenants. It
enacts a positive rule of law by which a person in possession of holding of a
tenure-land must be "deemed" to be a permanent tenant on fulfilment
of the three specified conditions. This is evident from the provisions of s.
6(1) under which every person who satisfied the definition of a permanent
tenant under s. 4 was entitled automatically and without applying for to be
entered as a permanent tenant in the record of rights by the Mamlatdar unless
the tenure-holder filed an objection in writing. Obviously such objection could
only be on grounds open to him under s. 4. Section 4(b) and s.6(1) of the
impugned Act had to be read together as forming an integrated whole. The entire
object and purpose of the impugned enactment was not, therefore, to enact a
rule of evidence for determining who were permanent tenants under the
pre-existing law but to define and create a new class of permanent tenants who
satisfied s. 4 of the Act.
ORIGINAL, JURISDICTION: Petition Nos. 120 of
58 etc.
Petition under Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
G. S. Pathak, J.B. Dadachanji, S.N. Andley,
Rameshwar Nath and P.L. Vohra, for the petitioners (in Petns. 120 and 147 of
1958).
S. B. Dadachanji, S.N. Andley, Rameshwar Nath
and P.L. Vohra, for the petitioner (in Petn. No.
149/58).
J.B. Dadachanji, S.N. Andley, Rameshwar Nath
and P.L. Vohra, for the petitioners (in Petns.
Nos. 148 and 150/58).
415 C.K. Daphtary, Solicitor-General of
India, N.P. Nathwani, R. H. Dhebar and T. M. Sen, for the respondents.
N.P. Nathwani and I. N. Shroff for
respondents Nos. 5 and 6 (in Petns. Nos. 120, 148 and 156 of 1958).
1961. December 22.-The Judgment of Sinha, C. J.,
and Das, J., was delivered by Das, J., the judgment of Sarkar and Mudholkar JJ.,
was delivered by Mudholkar, J., and Ayyangar, J., delivered a separate
judgment.
S. K. Das, J.-In these 13 writ petitions
arises a common question of law, namely, the constitutional validity of some of
the provisions of the Bombay Land Tenure Abolition Laws (Amendment) Act, 1958
(Bombay Act LVII of 1958) and in particular, of the provisions contained in ss.
3 and 4 read with s. 6 thereof. We shall hereinafter refer to this Act as the
impugned Act, 1958.
Put very briefly, the case of the petitioners
is that as a result of the provisions of the impugned Act, 1958, certain
non-permanent tenants were deemed to be permanent tenants as from the
commencement of the Bombay Taluqdari Tenure Abolition Act, 1949 (Bombay Act
LXII of 1949), hereinafter referred to as the Taluqdari Abolition Act, 1949 and
thereby became entitled to acquire on payment of six times the assessment or
six times the rent instead of at least the minimum of twenty times the
assessment, the rights of an "occupant" within the meaning of s. 5A
of the Taluqdari Abolition Act, 1949. This result, it is contended, has
substantially deprived the petitioners of the rights which they acquired on
tillers' day (April 1, 1957) by reason of the provisions contained in s. 32 and
other relevant sections of the Bombay Tenancy and Agricultural Lands Act, 1948
(Bombay Act LXVII of 1948) as amended from time to time. It is 416 stated that
this deprivation has resulted in the violation of certain fundamental rights of
the petitioners, such as those guaranteed under Arts. 14, 19 and 31 of the
Constitution. On behalf of the petitioners it has also been contended that
apart from the question of violation of their fundamental rights, the impugned
Act, 1958 is a piece of colourable legislation in the sense that under the
guise of changing a rule of evidence, it has in effect taken away the
petitioners' property without payment of compensation and given it to another;
it is, therefore, a piece of legislation which does not come within any entry
of the two legislative lists under which the State Legislature was competent to
make laws.
To appreciate the points urged in support of
the petitions which have all been heard together, it will be necessary to
consider the effect and inter-; action of some of the provisions of four
principal Acts, namely, (1) the Bombay Land Revenue code 1879 (Bombay Act V of
1879), hereinafter referred to as the Revenue Code; (2) the Bombay Tenancy and
Agricultural Lands Act, 1948, as amended from time to time, hereinafter called
the Tenancy Act, 1948; (3) the Taluqdari Abolition Act 1979; and (4) the
impugned Act, 1958. We shall presently read the relevant provisions of these
Acts. But before we do so, it is necessary to state some facts. The facts are
similar, though not the same, in all the petitions. It will be sufficient to
state the facts of one of the petitions (Petition no. 120 of 1958) in detail in
order to focus attention on the main question of law which is the same in all
these petitions and which we have indicated briefly in the preceding paragraph.
The petitioners are all ex-Taluqdars. In
Petition No. 120 of 1958 the petitioner was a Taluqdar of two estates known as
Sanand and Koth in the Ahmedabad district of the then State of 417 Bombay and
now of the State of Gujarat. These two estates comprised 24 Taluqdari villages.
The petitioner was the absolute proprietor of all the lands comprised in the
two estates, subject to payment of land revenue to the State (Government under
the petitioner there were tenants-it is stated, some permanent and some
non-permanent. In the year 1949, the Bombay Provincial Legislature enacted the
Taluqdari Abolition Act, 1949 which came into force on August 15, 1950. As a
result of the provisions of that Act, the Taluqdari tenure as such was
abolished and certain properties, such as, wells, tanks, waste lands,
uncultivated lands, etc., were acquired by the State; and the Taluqdar was
converted into mere "occupant" as defined in the Revenue Code and was
to pay land revenue in accordance with the provisions of that Code.
Section 3 (16) of the Revenue code defined an
"occupant" as meaning "a holder in actual possession of
unalienated land, other than a tenant; provided that where the holder in actual
possession is a tenant, the landlord or superior landlord, as the case may be,
shall be deemed to be the occupant." In 1955 the Taluqdari Abolition Act,
1949 was amended and s. 5A was inserted. This section, in effect, gave a
permanent tenant in possession of Taluqdari land the right to become an
occupant if he paid six times the assessment for acquiring the right of
occupancy. In other words, if a permanent tenant of an ex-Taluqdar paid the
required amount as stated in s. 5A, he became an occupant. himself in place of
the ex- Taluqdar and came into direct relation with the State in the matter of
payment of land revenue, and acquired all the rights of an occupant under the
Revenue Code. The right which was conferred by s. 5A was available at first for
a limited period only, but it was extended till 1962 as stated at the Bar. It
is necessary to state now what is meant by "permanent tenant".
Section 16 of the Taluqdari Abolition 418 Act, 1949 made the provisions of the
Revenue Code applicable thereto and an attempt was made to harmonize the
provisions of the Taluqdari Abolition Act, 1949 with the provisions of the
Revenue Code; therefore, for understanding what is a "permanent
tenant" we have to go to the Revenue Code, s. 83 whereof, so far as it is
relevant, reads as follows:
"83 x x x x x And where by reason of the
antiquity of a tenancy, no satisfactory evidence of its commencement is
forthcoming, and there is not any such evidence of the period of its intended
duration, if any, agreed upon between the landlord and tenant, or those under
whom they respectively claim title, or any usage of the locality as to duration
of such tenants, it shall, as against the immediate landlord of the tenant, be
presumed to be co-extensive with the duration of the tenure of such landlord
and of those who derive title under him.
And where there is no satisfactory evidence
of the capacity in which a person in possession of land in respect of which he
renders service or pays rent to the landlord received, holds or retains
possession of the same it shall be presumed that he is in possession as tenant.
x x x x It will be noticed that the
expression "permanent tenant" does not occur in the section. What is
stated therein is that in certain circumstances the duration of the tenancy of
a tenant as against his immediate landlord shall be presumed to be co-
extensive with the duration of the tenure of such landlord. The two
circumstances mentioned are, (1) where by reason of the antiquity of the
tenancy no satisfactory evidence of its commencement is forthcoming, and (2)
where there is no such evidence 419 of the period of its intended duration, if
any, agreed upon between the landlord and tenant, or any usage of the locality
as to duration of the tenancy. Sometime later, by Bombay Act, XIII of 1956, the
definition of a "permanent tenant" was inserted in s. 2(10A) of the
Tenancy Act, 1948.
That definition was in these terms:
"`permanent tenant' means a person- (a)
who immediately before the commencement of the Bombay Tenancy and Agricultural
Lands (Amendment) Act, 1955 (hereinafter called `the Amending Act, 1955')- (i)
holds land as mulgenidar or mirasdar; or (ii) by custom, agreement, or the
decree or order of a Court holds the land on lease permanently; or (b) the
commencement or duration of whose tenancy cannot satisfactorily be proved by
reason of antiquity;
and includes a tenant whose name or the name
of whose predecessor-in-title has been entered in the record of rights or in
any public record or in any other revenue record as a permanent tenant
immediately before the commencement of the Amending Act, 1955." Section
87A of the Tenancy Act, shall, which was also inserted by Bombay Act XII of
1956 by s. 47 thereof, said:
"Nothing in this Act, shall affect the
provisions of any of the Land Tenures Abolition Acts, specified in Schedule III
to this Act, in so far as such provisions relate to the conferment of right of
An occupant in favour of any inferior holder or tenant in respect of any land
held by him." 420 In Schedule III to the Tenancy Act, 1948, was given a
list of Land Tenures Abolition Act, including the Taluqdari Abolition Act,
1949.
Therefore, the effect of s. 87A aforesaid was
that nothing in the Tenancy Act, 1948, affected the provisions of the Taluqdari
Abolition Act, 1949, in so far as the provisions in s. 5A of the Taluqdari
Abolition Act 1949, conferred the right of an occupant in favour of a permanent
tenant in possession of any taluqdari land on payment of the sums mentioned
therein. The arguments before us have proceeded on the footing that before the
coming into force of the impugned Act, 1958, the status of a permanent tenant
in possession of any taluqdari land was to be determined by the provisions in
s. 83 of the Revenue Code; in other words by the two circumstances mentioned in
that section.
What was the position with regard to tenants
who were not permanent ? No right was conferred on them by s. 5A of the
Taluqrlari Abolition Act, 1949, which section was inserted in that Act in 1955
by Bombay Act I of 1955. The rights of these non-permanent tenants were
governed by the Tenancy Act, 1948, which underwent some fundamental changes in
1956 (see Bombay Act XIII of 1956). The changes relevant for our purpose were
contained in s. 32 and some of the succeeding sections. The effect of these
sections was considered by this court in Sri Ram Ram Narain Medhi v. The State
of Bombay (1). After summarising the provisions contained in ss. 32 to 32R,
this Court said:
"The title of the landlord to the land
passes immediately to the tenant on the tillers' day and there is a completed
purchase or sale thereof as between the landlord and the tenant. The tenant is
no doubt given a locus penitentiae and an option of declaring whether 421 he is
or is not willing to purchase the land held by him as a tenant. If he fails to
appear or makes a statement that he is not willing to purchase the land, the
Tribunal shall by an order in writing declare that such tenant is not willing
to purchase the land and that the purchase is ineffective. It is only by such a
declaration by the Tribunal that the purchase becomes ineffective. If no such
declaration is made by the Tribunal the purchase would stand as statutorily
effected on the tillers' day and will continue to be operative, the only
obligation on the tenant then being the payment of price in the mode determined
by the Tribunal. If the tenant commits default in the payment of such price
either in lump or by instalments as determined by the Tribunal, s. 32M declares
the purchase to be ineffective but in that event the land shall then be at the
disposal of the Collector to be disposed of by him in the manner provided
therein. Here also the purchase continues to be effective as from the tillers'
day until such default is committed and, there is no question of a conditional
purchase or sale taking place between the landlord and tenant. The title to the
land which was vested originally in the landlord passes to the tenant on the
tillers' day or the alternative period prescribed in that behalf. This title is
defeasible only in the event of the tenant failing to appear or making a
statement that he is not willing to purchase the land or committing default in
payment of the price thereof as determined by the Tribunal. The tenant gets a
vested interest in the land defeasible only in either of those cases and it
cannot therefore be said that the title of landlord to the land is suspended
for any period definite or indefinite." 422 The tillers' day referred to
above was the first day of April, 1957. The argument on behalf of the
petitioners is that according to the decision of this Court, the title of the
petitioners to lands held by tenants who were entitled to the benefit of ss. 32
to 32R passed immediately to the tenants on the tillers' day and there was a
completed purchase or sale thereof as between the petitioners and the tenants.
So far as permanent tenants in possession of taluqdari lands were concerned,
they were governed by s. 5A of the Taluqdari Abolition Act, 1949, and nothing
in the Tenancy Act, 1948, affected their right under that section. But
non-permanent tenants in possession of taluqdari lands became purchasers of
their lands on the tillers' day with an obligation to pay the purchase price
mentioned in s. 32H of the Tenancy Act, 1948. Section 32H, in so far as it
bears upon non-permanent tenants, says:
"32H. (1) Subject to the additions and
deductions as provided in sub-sections (1A) and (1B), the purchase price shall
be reckoned as follows, namely:- (i) in the case of a permanent tenant X X X
(ii) in the case of other tenants, the purchase price shall be the aggregate of
the following amounts, that is to say,- (a) such amounts as the Tribunal may
determine not being less than 20 times the assessment and not more than 200
times the assessment;
(b) the value of any structures, wells, and
embankment constructed and other permanent fixtures made and trees planted by
the landlord on the land;
(c) the amount of the arrears of rent, if any
lawfully due on the tillers' day or the postponed date;
423 (d) the amounts, if any, paid by or
recovered from the landlord as land revenue and other cesses referred to in
clauses (a), (b), (c) and (d) of sub-section (1) of section 10A, in the event
of the failure on the part of the tenant to pay the same.
Explanation 1.- * * * Explanation 2.- * * *
(1A) Where a tenant to whom subsections (1) and (2) of section 10A do not
apply, has, after the commencement of the Bombay Tenancy and agricultural Lands
(Amendment) Act, 1955, paid in respect of the land held by him as tenant land
revenue and other cesses referred to in sub-section (1) of that section, on
account of the failure of the landlord to pay the same, a sum equal to the
total amount so paid by the tenant until the date of the determination of the
purchase price shall be deducted from the aggregate of the amounts determined
under sub-section (1).
(1B) (a) On the amount arrived at in
accordance with the provisions of sub- sections (1) and (lA) there shall be
calculated interest at 4-1/2, per cent, per annum for the period between the
date on which the tenant is deemed to have purchased the land under section 32
and the date of the determination of the purchase price.
(b) (i) The amount of interest so calculated
shall be added to, and (ii) the amount of rent, if any, paid by the tenant to
the landlord and the value of any products of trees planted by the landlord if
such products are removed by the landlord during the said period shall be
deducted from, the amount so arrived at.
424 (2) The State Government may by general
or special order, fix different minima and maxima for the purpose of sub-clause
(a) of clause (ii) of sub-section (1) in respect of any kind of land held by
tenants in any backward area. In fixing such minima and maxima, the State
Government shall have regard to the rent payable for the land and the factors
specified in sub-section (3) of section 63A." The difference in the
purchase price mentioned in s. 5A of the Taluqdari Abolition Act, 1949, and the
purchase price mentioned in s. 32H of the Tenancy Act, 1948, is noticeable.
Under s. 5A of the Taluqdari Abolition Act, 1949, the purchase price for the
right of occupancy is approximately six times the assessment fixed for the
land. Under s. 32H, however, the minimum is 20 times the assessment and the
maximum 200 times the assessment. These minima and maxima are liable to
reduction in the case of land held by tenants in any backward area.
Now, the main grievance of the petitioners is
this. So far as non-permanent tenants were concerned, the title of the
petitioners to their lands passed on April 1, 1957, to the tenants and the
petitioners ceased to be landlords. All that they became entitled to on that
day was the purchase price mentioned in s. 32H. By one stroke of the pen as it
were, the impugned Act, 1958, made almost all non-permanent tenants into
permanent tenants and thereby deprived the petitioners of the higher purchase
price which they were entitled to get under s. 32H and the succeeding sections
of the Tenancy Act, 1948. In petition No. 120 of 1958 the petitioners has
stated that he would lose about Rs. 14 lacs as a result of the provisions of
the impugned Act, 1958.
We may now read some of the provisions of the
impugned Act, 1958. The Act is entitled "an Act 425 further to define
permanent tenants, inferior holders and permanent holders for the purposes of
certain Land Tenure Abolition laws and to provide for certain other
matters." In view of the argument advanced before us on behalf of the
respondents that the impugned Act, 1958 merely changes a rule of evidence, it
is worthly of note that the long title itself states that the Act is an Act
further to define permanent tenants.
Section 2 of the Act is the interpretation
section and the expression 'Land Tenure Abolition law' means in relation to a
permanent tenant, Acts specified in Part I of the Schedule. The Taluqdari
Abolition Act, 1949 is one of the Acts mentioned in Part I of the Schedule. The
expression 'tenure- holder' means inter alia a taluqdar and 'tenure- land'
means inter alia taluqdari land. Sections 3, 4 are 6 and important for our
purpose and should be read in full.
"3. A person shall, within the meaning
of the relevant Land Tenure Abolition law, be deemed to be an inferior holder,
a permanent holder or, as the case may be, a permanent tenant, on the date of
the abolition of the relevant land tenure, if his name has been recorded in the
record of rights or other public or revenue record as an inferior holder,
permanent holder or permanent tenant in respect of any tenure-land- (a) on the
date of the abolition of the relevant land tenure, or (b) in pursuance of
orders issued during the course of any proceedings under the relevant Land
Tenure Abolition law or, as the case may be, the Bombay Land Revenue Code,
1879- (i) before the commencement of this Act, or 426 (ii) after the commence
of this Act in cases in which inquiries were pending at the commencement of
this Act, or (c) in pursuance of an order issued by the Mamlatdar in respect of
an entry under section 6 of this Act.
4. For the purposes of the relevant Act
specified in Part I of the Schedule, a person- (a) who on the date of the
commencement of that Act was holding any tenure-land and (b) who and whose
predecessors in title, if any, were, immediately before that date for such
continuous period of twelve years or more, holding the same tenure-land, or any
other tenure-land, as a tenant or inferior holder under the tenure-holder for
the time being on payment of an amount exceeding the assessment of the land,
shall unless it is proved by the tenure-holder that he would not have been a
permanent tenant on the basis of continued possession of the land under clause
(b), be deemed to be a permanent tenant of the land under clause (a) and all
the provisions of that Act shall apply to him as they apply to a permanent
tenant.
Explanation.-The assessment for the purpose
of this section shall be reckoned as provided in clauses (a) and (b) of section
5. 6. (1) The rights of an inferior holder, permanent holder or permanent
tenant under sections 4 and 5 shall be entered in the record of rights unless
the tenure holder applies in writing to the Mamlatdar within six months from
the date of the commencement of this Act for a declaration that any holder, or
tenant under him is not an inferior holder, a 427 permanent holder or, as the
case may be, a permanent tenant.
(2) Any such application shall be disposed of
as if it were an application in respect of a disputed case under section 135D
of the Bombay Land Revenue Code, 1879." The constitutional validity of the
aforesaid provisions has been challenged before us on behalf of the petitioners
on the following grounds.
(1) The Bombay State legislature was not
competent to enact the impugned Act, which is a piece of colourable legislation
inasmuch as under the guise of defining a permanent tenant, or changing a rule
of evidence, it has really confiscated a large part of the purchase price which
the petitioners were entitled to under s.
32H of the Tenancy Act, 1948 from some of
their tenants;
(2) The impugned Act contravenes the rights
of the petitioners guaranteed by the Constitution under Arts. 14, 19 (1) (f)
and 31 there of; and (3) Article 31A does not save it.
On behalf of the respondents the main
argument is that the impugned Act, 1958, merely changes a rule of evidence for
determining who are permanent tenants in possession of taluqdari lands; it does
nothing more than that and is not, therefore, bad on any of the grounds urged
on behalf of the petitioners. It is clear that if the impugned Act merely
changes a rule of evidence for determining who are permanent tenants in
possession of taluqdari lands, then the points urged as to the violation of the
petitioners' fundamental rights under Arts. 14, 19 (l) (f) and 31 would not at
all arise. If, on the contrary, it is found that the impugned Act is not a
piece of legislation which changes a rule of evidence but is a device by which
the petitioners have been deprived of their property 428 without payment of
compensation, then it would be a piece of colourable legislation not within the
competence of the State Legislature. The legislation would then fall on the
main ground that it is a piece of colourable legislation, the subject matter of
which is not covered by any entry in List II or List III.
Therefore, the crux of the matter is what is
the true scope and effect of the provisions of the impugned Act, 1958. To this
question we now address ourselves.
It may be stated at the very outset that the
constitutional validity of the relevant provisions of the Taluqdari Abolition
Act, 1949 and the Tenancy Act, 1948 as amended by Bombay Act, XIII of 1956 has
not been challenged before us. In Dhirubha Devisingh Gohil v. The state of
Bombay and Sri Ram Ram Narain Medhi v. The State of Bombay, it was held by this
Court that the relevant provisions of those two Acts were Constitutionally
valid. What has been challenged before us is the constitutional validity of the
relevant provisions of the impugned Act 1958, particularly the provisions in
ss. 3,4 and 6 which we have quoted earlier. What is the scope and effect of
those provisions? Section 3 in effect states that a person shall, within the
meaning of the relevant Land Tenure Abolition law, be deemed to be a permanent
tenant on the date of the abolition of the relevant land tenure, if his name
has been recorded in the record of rights or other public or revenue record as
a permanent tenant in respect of any tenure land in any of the three following
circumstances- (a) on the date of the abolition of the relevant land-tenure; or
(b) in pursuance of orders issued during the course of any proceeding under the
relevant land tenure abolition law or the Revenue Code 429 either before or
after the commencement of the impugned Act, 1958; or (c) in pursuance of an
order issued by the Mamlatdar in respect of an entry under s. 6 of the impugned
Act, 1958. It is worthy of note that s. 3 does not create a mere presumption,
as is referred to in s. 135J of the Revenue Code. Section 135J of the Revenue
Code states inter alia that an entry in the record of rights shall be presumed
to be true until the contrary is proved. Section 3 of the impugned Act, 1958
states, however, that a person shall be deemed to be a permanent tenant on the
date of the abolition of the relevant land tenure if his name has been recorded
in the record of rights in respect of any tenure land in any of the three
circumstances mentioned as (a), (b) and (c) therein. In other words, if any one
of the three circumstances mentioned in the section exists, then by a fiction
of law a person who fulfils that circumstance must be deemed to be a permanent
tenant. Section 4 says in effect that a tenant(a) who on the date of the
commencement of the Taluqdari Abolition Act, 1949 was holding any tenure land,
and (b) who and whose predecessors in title, if any, were immediately before
that date for such continuous periods as aggregate to a total continuous period
of 12 years or more, holding the same tenure land, or any other tenure land
shall unless it is proved by the tenure- holder that he would not have been a
permanent tenant on the basis of continued possession of the land under (b)
above, be deemed to be a permanent tenant of the land under (a), and all the
provisions of the Taluqdari Abolition Act, 1949 shall apply to him as they
apply to a permanent tenant. There is a third condition mentioned in s.
4, namely, the amount which the tenant pays
must exceed the assessment of the land. This condition does not, however have
any importance in the discussion which follows and no further reference to it
is necessary.
430 There is no difficulty in understanding
cl. (a) of s. 4 but cl. (b) is not so clear. The expression "continuous
periods as aggregate to a total continuous period of twelve years or more"
is neither very elegant nor very clear. Perhaps, the expression means that one
particular continuous period may be of less than twelve years but there may be
more than one such continuous period and in such a case the totality of such
continuous periods must aggregate twelve years or more; if however, one
continuous period extends over twelve years or more, there is no difficulty,
and the question of the aggregate totalling twelve years does not arise. The
question of the aggregate totalling twelve years will arise when there are more
continuous periods than one, of less than twelve years duration each. The
possessions for such continuous periods may be of the same tenure-land or of
different tenure-lands.
If however, the aggregate of continuous
periods of possession of the same tenure-land or of any other tenure-land comes
to twelve years or more, then cl. (b) of s. 4 is fulfilled. It further appears
that conditions mentioned in (a) and (b) are cumulative. In other words, for
the application of s.4, a tenant must be in possession of tenure-land on the
date of the commencement of the Taluqdari Abolition Act, 1949 (August 15, 1950)
and further more must have been in possession of the same tenure-land or of any
other tenure-land for continuous periods aggregating more than twelve years
immediately before the said date. A person who fulfils the aforesaid two conditions
shall be deemed to be a permanent tenant of the land unless it is proved by the
tenure-holder that he would not have been a permanent tenants of the basis of
possession referred to in cl.(b). The expression "unless it is proved by
the tenure-holder that he would not have been a permanent tenant on the basis
of continued possession of the land under clause (b)" has again given rise
to some difficulty. Two views have been can- 431 vassed before us. One view is
that the expression means that the tenure-holder can only contest the
correctness of the claim of twelve years' possession and show that the tenant
was not in possession of the land or lands concerned or that the continuous
period or periods of possession did not aggregate twelve years. The other view
is that the tenure-holder can show that the tenancy commenced on a particular
date or that there is satisfactory evidence of the duration of the tenancy, and
therefore, under s. 83 of the Revenue Code the tenant would not be a permanent
tenant merely by reason of twelve years' possession.
Section 4 as worded is somewhat obscure and
if one were to go merely by the words used, one would be inclined to accept the
first view. On that view, the Section undoubtedly would go much further than
merely introducing a rule of evidence; it would create a new class of permanent
tenants not contemplated by s. 83 of the Revenue Code. The latter section talks
of two circumstances which determine the status of a tenant: one relates to
commencement of the tenancy and the other to its intended duration. Under s. 83
the onus will be on the person who claim a permanent status as a tenant to
prove that either the commencement of the tenancy is not known or that its
intended duration was not agreed upon between the landlord and tenant or was
not governed by any usage of the locality. Section 4 of the impugned Act, 1958
gives a go-by to these circumstances. It brings in different considerations
altogether. In effect it says that if a person was in possession of any
tenure-land on August 15, 1950 (the date of commencement of the Taluqdari
Abolition Act, 1949) and was further more in possession of the same tenure-land
or any other tenure-land for a continuous aggregate period of twelve years, he
would be deemed to be a permanent tenant, unless the tenure-holder proved that
he was not in possession for a continuous aggregate period of twelve years 432
as laid down in cl. (b) of the section. This means that instead of the two
circumstances relating to commencement and duration a new consideration is
brought in, namely, whether the tenant has been in possession for a continuous,
aggregate period of twelve years. If he has been, then he is a permanent
tenant. If he has not been in such possession, then he is not a permanent
tenants. In other words, s. 4 of the impugned Act, 1958, completely changes the
definition of a permanent tenant and creates a new class of permanent tenants
who were not permanent tenants on April 1, 1957. If this view is correct, and
we think that there is a good deal to be said in favour of this view, then s. 4
of the impugned Act, 1958 in spite of giving the tenure-holder an opportunity
of proving that the tenant was not in possession for an aggregate continuous
period of twelve years under s. 4 read with s. 6, undoubtedly changes the very
definition of permanent tenant and by that change wipes out a large part of the
purchase price which the petitioners were entitled to get on April 1, 1957 from
some of their tenants. It is not disputed that on this view of s. 4, the
impugned legislation would be unconstitutional inasmuch as it would bring
within the category of permanent tenants persons who were non-permanent tenants
under the previous law and there by deprive the tenure-holders of part of the
purchase money which they were to get from them.
It has been contended that the second view
with regard to the expression "unless it is proved by the tenure-holder
that he would not have been a permanent tenant on the basis of continued
possession of the land under clause (b)" is preferable on the ground that
cl. (b) is one of the conditions which the tenant must fulfil before he can get
the benefit of s. 4 and there would not be much sense in allowing the
tenure-holder to disprove a condition which the tenant must fulfill before he
can get 433 the benefit of s. 4. We find it difficult to accept this view. On a
pure question of construction of the words used in s. 4, we see nothing wrong
in allowing the tenure-holder to prove that the tenant was not in possession
for continuous periods aggregating twelve years. Let us, however, assume that
the second view as to the interpretation of s. 4 of the impugned Act, 1958, is
preferable to the first view. What then is the position? The position then is
that a tenant who fulfils the two conditions mentioned in cls. (a) and (b) must
be deemed to be a permanent tenant unless the tenure-holder proves the
commencement and/or duration of the tenancy. From this point of view it may be
argued that s. 4 merely changes a rule of evidence and throws the onus on the
tenure-holder to prove that in spite of twelve years' continuous possession
mentioned in cl. (b), the tenant is not a permanent tenant by reason of the
circumstance that the commencement of the tenancy or its intended duration is
known. Under s. 6 the rights of a permanent tenant under s. 4 shall be entered
in the record of rights unless the tenure-holder applies in writing to the
Mamlatdar within six months from the date of the commencement of the impugned
Act, 1958, for the declaration that the tenant under him is not a permanent
tenant. If any such application is filed by the tenure-holder, it shall be
disposed of as if it were an application in respect of a disputed case under s.
135D of the Revenue Code. What is the effect of s. 6 ? It was conceded by the
learned counsel appearing for the respondent State and also the respondent
tenants that the tenure- holder has only one opportunity of saying that a
tenant under him is not a permanent tenant and the tenure-holder must avail
himself of that opportunity within six months from June 10, 1958, the date on
which the impugned Act, 1858, came into force. The combined effect of ss. 3, 4
and 6 appears to us to be this. If the tenure-holder has made no application
434 within six months from June 10, 1958, for a declaration that a tenant under
him is not a permanent tenant, every tenant under him who fulfils the
conditions mentioned in cls. (a) and (b) of s. 4 at once gets recorded in the
record of rights as a permanent tenant. As soon as he is so recorded, he must
be deemed under s. 3 to be a permanent tenant by a fiction of law and under s.
4 all the provisions of the Taluqdari
Abolition Act, 1949, will apply to him as they apply to a permanent tenant.
This combined effect of ss. 3, 4 and 6 of the impugned Act, 1958 does in our
opinion deprive the tenure-holder of any real opportunity of contesting the
claims of his tenants and makes them permanent tenants once they are recorded
in the record of rights, thereby depriving the tenure-holder of the purchase
price which he was entitled to get from them under s. 32H of the Tenancy Act,
1948.
On behalf of the respondents it was stated at
the Bar that the petitioners had made applications for a declaration under s. 6
of the impugned Act, 1958, and that those applications are still pending. We
have no materials in support of this statement. No affidavit has been made on
behalf of the respondents to this effect; nor do we know if those applications
related to all the non- permanent tenants of the petitioners. What we know is
that in a stay application made by the petitioner in petition No. 120 of 1958
it was averred that the petitioner had filed several declaratory suits before
the Mamlatdar under s. 70(b) of the Tenancy Act, 1948, for a declaration that the
tenants concerned were not permanent tenants. Those suits were however, filed
prior to the coming into force of the impugned Act, 1958.
The petitioner asked for a stay of those
suits on two grounds: firstly, that after the coming into force of the impugned
Act, 1958, the suits would become infructuous, and secondly, that the Mamlatdar
concerned would have no jurisdiction to adjudicate upon the constitutional 435
validity of the provisions of the impugned Act, 1958, and in view of those
provisions would be bound to hold that the tenants had become permanent
tenants. This Court passed no order on the application for stay. But the
petitioner, it appears, moved the Mamlatdar to stay the hearing of the suits
pending the disposal of the writ petition in this Court and the suits were
stayed.
In a second petition filed on behalf of the
petitioner it was stated that after the coming into force of the impugned Act,
1958, the petitioner received a notice to show cause why the non-permanent
tenants under him should not be declared to be permanent tenants and the record
of rights amended accordingly. The petitioner applied to the Revenue Officer
concerned to stay the proceedings in view of the writ petition pending in this
Court. This request was, however, turned down. The petitioner then came to this
Court and it appears that an order was made to the effect that any
investigation which might be necessary for the proceedings pending before the
Revenue Officer might be continued, but no final order or entry should be made
till the disposal of the writ petition. Such an order appears to have been made
in respect of a number of villages and the petitioner stated that he had
thousands of tenants in 24 villages, some of whom were permanent, some
protected, and some ordinary. Nothing was stated in those petitions or in the
replies thereto as to whether the tenure-holder had made an application for a
declaration within the meaning of s. 6 of the impugned Act, 1958. All that has
been stated in the application is that in response to a notice received from
the Revenue Officer, the petitioner, as a tenure-holder, had moved this Court
for a stay of the proceedings. If the petitioner had filed no application for a
declaration within the meaning of s. 6 of the impugned Act, 1958, and within
the time allowed by that section, then it is obvious 436 that the Revenue
Officer dealing with the suits under s. 70(b) of the Tenancy Act, 1948, pending
before him, or the Revenue Officer dealing with other proceedings before him,
must give effect to the provisions of ss. 3, 4 and 6 of the impugned Act, 1958.
It is, therefore difficult to see how the pendency of the suits or other
proceedings before the Revenue Officers concerned can be of any assistance to
the petitioners. The question, therefore, boils down to this. Section 6 of the
impugned Act, 1958 does give one opportunity to the petitioners to make an
application for a declaration that any tenant under him is not a permanent
tenant, but that opportunity was to be availed of within six months from June
10, 1958.
Once that opportunity is lost, the
tenure-holder cannot claim that a tenant who fulfils cls. (a) and (b) of s. 4
is not a permanent tenant. Our attention was drawn to sub-ss. (3), (4) and (5)
of s. 5A of the Taluqdari Abolition Act, 1949. Those sub-sections say in effect
that if any question arises whether any person is a permanent tenant, the State
Government or an officer authorised by the State Government in that behalf
shall decide the question; where such officer decides such question any person
aggrieved by the decision may file an appeal to the State Government within 60
days from the date of the decision; and the decision of the State Government
shall be final.
It was not suggested before us that the
aforesaid sub-sections would give the tenure-holder a second opportunity of
contesting the claim of the tenant, and it seems to us quite clear that the
tenure- holder who had failed to make an application within the time mentioned
in s. 6 of the impugned Act, 1958, would not be in a position to take advantage
of sub-ss. (3), (4) and (5) of s. 5A of the Taluqdari Abolition Act, 1949. If
ss. 3, 4 and 6 of the impugned Act, 1958, are good and valid in law, then
whichever be the authority that has to decide the claim of the tenant, it must decide
it in accordance with those provisions.
437 In these circumstances, can it be said
that the opportunity given by s. 6 is a real opportunity and does it amount to
merely changing a rule of evidence ? We think that this question must be
answered in the negative.
It is to be noted that on April 1, 1957 the
petitioners ceased to be tenure-holders of the lands held by non-permanent
tenants and as held by this Court, ss. 32 to 32R of the Tenancy Act, 1948,
clearly contemplated the vesting of the title in the tenants on the tillers'
day, defeasible only on certain specified contingencies. This Court held that
those sections were designed to bring about an extinguishment, or in any event
a modification of the landlord's rights in the estate within the meaning of
Art.
31A (1) (a) of the Constitution. If that was
the true effect of ss. 32 to 32R of the Tenancy Act, 1948, then on April 1,
1957 the petitioners were left only with the right to get the purchase price
under s. 32H. That right of the petitioners was undoubtedly a right to
property. In Bombay Dying and Manufacturing Co. Ltd. v. The State of Bombay (1)
this Court observed, with regard to unpaid wages of an employee, that when an
employee had done his work, the amount of wages earned by him become a debt due
to him from the employer and this was property which could be assigned under
the law. The provisions of the Bombay Labour Welfare Fund Act (Bombay Act XL of
1953) were under consideration in that case. Section 3 of the Act transferred
inter alia all unpaid accumulation of wages to a fund known as the Bombay
Labour Welfare Fund. This Court held that s. 3 (1) of the Act in so far as it
related to unpaid accumulation in s. 3(2) (b) was unconstitutional and void by
reason of the right guaranteed under Art. 19(1) (f) of the Constitution and was
not saved by cl.(5) thereof. We think that the same principle must apply in the
438 present case. The right of the petitioners to the purchase price under s.
32H of the Tenancy Act, 1948, from those of their tenants who were non-
permanent on April 1, 1957, was a right of property in respect of which the
petitioners have a guarantee under Art. 19 (1)(f). The provisions in ss. 3,4
and 6 of the impugned Act, 1958, in so far as they laid down that in certain
circumstances a tenant shall be deemed to be a permanent tenant from the date
of the Taluqdari abolition Act, 1949, adversely affected the right of the
petitioners with retrospective effect; it practically wiped off a large part of
the purchase price which the petitioners were entitled to get.
If s. 6 of the impugned Act, 1958, is to be
tested on the touchstone of reasonable restrictions in the interests of the
general public as laid down in cl. (5) of Art. 19 of the Constitution, it must
be held that it does not impose a reasonable restriction. We have found it very
difficult to understand why and how it is reasonable that the tenure-holder
must make an application within six months from the commencement of the
impugned Act, 1958, for a declaration that his tenants are not permanent
tenants. The petitioners have three kinds of tenants-permanent tenants,
protected tenants, and ordinary tenants. On April 1, 1957 the petitioners
ceased to be tenure holders in respect of all tenants other than permanent
tenants and became entitled only to the purchase price under s. 32H. If any
tenant claimed on that date that he was a permanent tenant, he had to establish
his claim in accordance with s. 83 of the Revenue Code. Such a claim could be
contested by the tenure-holder whenever made by the tenant.
But by the impugned Act, 1958, all this was
changed, and unless the tenure holder made an application within six months of
the commencement of the impugned Act, 1958, he was not in a position to say
that a particular tenant who was in possession of tenure-land for continuous
period aggregating twelve years on and before August 15, 439 1950, was not a
permanent tenant. We are unable to hold that the six months' limit imposed by
s. 6 of the impugned Act, 1958, is in the circumstances, a reasonable
restriction within the meaning of Art.
19(5) of the Constitution. It is a little
difficult to understand how the tenure-holder could know which of his
non-permanent tenants would claim to be permanent on the coming into force of
the impugned Act, 1958. Obviously, the tenure-holder had to anticipate that all
his non- permanent tenants might claim to be permanent, and therefore it was
incumbent on him to make an application for a determination that none of his
non-permanent tenants were permanent, and unless he did so he would lose his
right to get the purchase price under s. 32H of the Tenancy Act, 1948. We are
clearly of the view that the time limit imposed by s. 16 of the impugned Act,
1958, is, in these circumstances, and unreasonable restriction and cannot be
justified under Art.
19(5) of the Constitution.
In view of this finding it is unnecessary to
consider the effect of Art. 31 of the Constitution. On behalf of the respondent
State reliance was sought to be placed on Art. 31A of the Constitution. That
Article, in our opinion, has no application to the present cases, inasmuch as
there was no acquisition by the State of any estate or any rights therein or
the extinguishment or modification of any such rights. On April 1, 1957, the
tenure-holders had ceased to be tenure- holders in respect of lands held by
non-permanent tenants. The relation between the tenure-holders and the tenants
had changed from that of landlord and tenant to that of creditor and debtor.
When, therefore, the impugned Act, 1958, affected the right of the petitioners
as creditors to get a certain sum of money from the debtors, it did not provide
for the acquisition by the State of any estate or of any rights therein; nor
did it provide for the extinguishment or modification of any such 440 rights.
Therefore, Art. 31A has no application and cannot save the impugned Act, 1958.
It has been contended before us that while
implementing the provisions of s. 5A of the Taluqdari Abolition Act, 1949, it
was found that because of the failure or inability of the ex- Taluqdar to
produce old records concerning the tenants it was difficult for the tenants to
take the benefit of that provision; therefore, it became necessary for the
Legislature to define permanent tenant in such a way that the tenure- holder
might not defeat the provisions of s. 5A.
That it was stated, was the reason for
enacting ss. 3, 4 and 6 of the impugned Act, 1958. We are unable to accept this
argument as correct. If the reason was as stated above, then the tenure-holder
should have been given a chance to contest the claim of the tenant whenever he
made a claim of being a permanent tenant. It appears to us that the true scope
and effect of the provisions in ss. 3, 4 and 6 of the impugned Act, 1958 is to
considerably reduce the purchase price payable to the petitioners and this has
been secured by the device of defining permanent tenant in such a way that the
tenure-holder has no real opportunity of contesting the claim of the tenants.
In that view of the matter, the impugned Act, 1958, does not fall within any
entry of List II or List III of the Seventh Schedule to the Constitution and is
a piece of colourable legislation. What is colourable legislation was explained
by this Court in K. C. Gajapati Narayan Deo v. The State of Orissa (1). This
Court said that the idea conveyed by the expression "colourable
legislation" is that although apparently a legislature in passing a
statute purported to within the limits of its powers, yet in substance and in
reality it transgressed those powers, the transgression being veiled by what
appears, on proper examination, to be a mere pretence or disguise. We are of
the view that, that is what has happened in the present case. Under the guise
of defining a 441 permanent tenant or changing a rule of evidence what has been
done is to reduce the purchase price which became payable to the tenure-holders
on April 1, 1957.
For these reasons we must hold that ss. 3, 4
and 6 of the impugned Act, 1958 in so far as they deem some tenants as
permanent tenants in possession of taluqdari land are unconstitutional and
void. Under the guise of changing the definition of a permanent tenant, they
really take away a large part of the right of the petitioners to get the
purchase price under s. 32H of the Tenancy Act, 1948, from some of their
tenants. The petitions must accordingly be allowed with costs.
As the petitions have been heard together
there will be only one hearing fee.
MUDHOLKAR, J,-Writ petition No. 120 of 1958
was heard along with writ petitions Nos. 147 to 158 of 1958. But a common
argument was advanced before us on behalf of the petitioner in each case by Mr.
G.S. Pathak and by the Solicitor General on behalf of the State of Gujarat and
by Mr. Nathwani on behalf of the tenants.
The petitioners in these cases were Talukdars
of certain villages in that part of the former state of Bombay which is now the
State of Gujarat.
The rights of Talukdars in different parts of
Gujrat to Taluqdari villages were regulated by the Ahmedabad Taluqdars Act,
1862 (Bom. 6 of 1862) and the Broach and Kaira Incumbered Estates Act, 1881
(XXI of 1881) and the Gujarat Taluqdars Act, 1888.
The Bombay Taluqdari Tenure Abolition Act,
1949 (herein referred to as the Abolition Act) repealed the aforementioned
Taluqdari Acts and s. 3 thereof abolished the Taluqdari tenure wherever it
prevailed. That section further abolished all incidents of the said tenure
attaching to any land comprised in a Taluqdari Estate. Section 5 of that Act
made all the taluqdars "occupants" of the lands in their 442
possession, within the meaning of the expression "occupant" occurring
in the Bombay Land Revenue Code (hereafter referred to as the Code). Like
"Occupants" in other areas of the Bombay State these persons became
liable to pay land revenue to the Government subject to the provisions of
cl.(b) of sub-s.2 of s.5. Nothing, however, turns on these provisions. Section
16 of the aforesaid Act makes the provisions of the Code applicable to
taluqdari villages subject to certain modifications with which we are not
concerned. The validity of the Abolition Act was challenged before this Court
but that challenge failed vide Dhisubha Devisingh Gohil v. The State of
Bombay(1).
Vast areas of lands in these villages were in
the occupation of inferior holders, permanent tenants, protected tenants,
ordinary tenants etc.
It is not disputed that the provisions of Ch.
VII of the Code which deals with "superior holders and inferior
holders" govern the relationship between the tenure holders and permanent
tenants. In addition to these provisions there are those in the Bombay Tenancy
and Agricultural Lands Act, 1948 (hereafter referred to as the 'Tenancy Act')
which deal with the relationship between landlord and tenant and till April 1,
1957, it is these provisions which exclusively governed the relationship
between the tenure-holder and tenants other than permanent tenants and inferior
holders.
It would be necessary to refer to some of the
provisions of this Act while dealing with the arguments advanced before us.
By Bombay Taluqdari Abolition (Amendment) Act
1 of 1955 which came into force on March 1, 1955, the Abolition Act was amended
and a new provision was added therein, viz: s. 5A the relevant portion of which
reads thus:
"(1) Notwithstanding anything contained
in section 5 a permanent tenant in possession 443 of any taluqdari land, and
also an inferior holder holding such land on payment of annual assessment only,
shall be deemed to be occupants within the meaning of Code, in respect of such
land in their possession and shall be primarily liable to the State Government
for the payment of land revenue due in respect of such land, and shall be
entitled to all the rights and shall be liable to all the obligations in
respect of such land as occupants under the Code or any other law for time
being in force:
Provided that- (a) such permanent tenant
shall be entitled to the rights of an occupant in respect of such land on
payment to the taluqdar or the cadet as the case may be :- (i) of the occupancy
price equivalent to four multiples of the assessment fixed for such land, and
(ii) for the extinguishment or modification of any rights of the taluqdar or
cadet, as the case may be, including the right of reversion in the lands, of a
further sum equivalent to two multiples of such assessment;
x x x (2) The right conferred under sub-
section (1) shall not be exercisable after a period of (five) years from the
date on which the Bombay Taluqdari Tenures Abolition (Amendment), Act 1954
comes into force.
x x x This section for the first time
conferred upon a permanent tenant the right to acquire the status of an
occupant in respect of the land held by him as a permanent tenant of the
tenure-holder upon payment of a certain sum of money as the price of occupancy
to the tenure-holder within five years of the commencement of the Amending Act
of 1955.
444 It was accepted before us that the period
fixed by s. 5A has been extended upto the year 1962.
Section 5A of the Act has never been
challenged, and the argument before us proceeded upon the footing that it is a
perfectly valid piece of law.
Though the Abolition Act by s. 5A thus
conferred upon the permanent tenants in the taluqdari villages the right become
occupants, it did not define what a permanent tenant was. By an amendment made
by Bombay Act XVIII of 1958, it was provided that certain persons would be
permanent tenants but that does not really define what a permanent tenant is.
This absence of definition of a permanent tenant did not, however, create any
difficulty because in Bombay that term has been understood to mean the tenant
described in paragraph 2 of s. 83 of the Code. Indeed, in the petitions
themselves it is stated that s.83 of the Code defines a permanent tenant. The
second paragraph of that section is in these terms:
"And where by reason of the antiquity of
a tenancy no satisfactory evidence of its commencement is forthcoming, and
there is not any such evidence of the period of its intended duration, if any,
agreed upon between the landlord and tenant, or those under whom they
respectively' claim title or any usage of the locality as to duration of such
tenancy, it shall, as against the immediate landlord of the tenant, be presumed
to be co-extensive with the duration of the tenure of such landlord and of those
who derive title under him." Under this section, therefore, a permanent
tenant is one whose tenure is co-extensive with that of his landlord and a
tenant is to be presumed to be such a tenant when by reason of antiquity, the
commencement of the tenancy cannot be proved and there is no satisfactory
evidence of the agreed duration of the tenancy or of any usage of the locality
as 445 to such duration. The Bombay Tenancy and Agricultural Lands Act, 1956
(13 of 1956) which among other provisions, has amended s. 2 of the Tenancy Act
has given a definition of the expression in the new sub-s.10A thereof but it is
not necessary to reproduce it as no argument based on it is advanced before us
as indeed none could be advanced.
That Act made extensive and far-reaching
amendments in the Bombay Tenancy Act. Several sections thereof were recast
including s.32.
Amongst the Provisions added are ss. 32A to
32-R which appear in the second part of Chapter 3 of that Act, dealing with
"Purchase of land by tenants" to which we will refer hereafter. By
virtue of s.32, sub. s. 1, on April 1, 1957, called the "tillers'
day" every tenant, including permanent tenant was, subject to the other
provisions of that section and of the succeeding sections deemed to have
purchased the tenancy land in his possession from the landlord free of all
encumbrances subsisting thereon. Section 87A, which also was added to the
Tenancy Act by the Amending Act of 1956, provided that nothing in the Tenancy
Act was to affect the provisions of any of the Land Tenure Abolition Acts
specified in Schedule II (which includes the Abolition Act in question) in so
far as such provisions relate to the confinement of the right of an occupant
upon a permanent tenant in respect of land held by him.
In consequence of this the provisions of s.
32-H of the Tenancy Act which deal with the purchase price payable by permanent
tenants will not apply to such permanent tenant. He would, therefore, have only
that right which is conferred upon a permanent tenant by s. 5-A of the Abolition
Act.
The result of this is that he would not be
bound to pay the purchase price at once under s. 32-H of the Tenancy Act and
can make his election to acquire or not to acquire the right of an occupant
within the period allowed by s. 5-A (as extended from time to time).
446 The records relating to tenancies in
taluqdari villages used to be maintained by the tenure-holders. It is from
these records that information could be obtained as to the nature of the
tenancies of the tenants in those villages.
While implementing the provisions of s. 5-A
of the Abolition Act it was found that because of the refusal, failure or
inability of the taluqdar to produce old records concerning the tenants it was
difficult for the tenants to take the benefit of that provision. Therefore, the
legislature passed Bombay Act No. 57 of 1958 called the Bombay Land Tenure
Abolition Laws (Amendment) Act, 1958. The long title of the Act runs thus:
"An Act further to define permanent tenants, inferior holders and
permanent holders for the purposes of certain Land Tenure Abolition laws and to
provide for certain other matters." Section 4 of this Act states who are
to be deemed to be permanent tenants for the purpose of the Land Tenure
Abolition laws specified in Part II of the Schedule to the Act.
The validity of this Act (hereafter referred
to as the impugned Act) and in particular of the provisions of s. 4 is
challenged before us.
We will reproduce hereafter this section and
certain other provisions of the Act which have a bearing upon the arguments
addressed before us.
According to Mr. Pathak s. 4 of the Act in
effect expands the category of permanent tenants by bringing within its fold
persons who were merely ordinary tenants prior to the enactment of this
provision. So far as an ordinary tenant is concerned it is Mr. Pathak's
contention that on the tillers' day he became an occupant of the land or at any
rate the landlord (or tenure-holder) lost his interest therein and that
thereafter the latter became entitled to receive from the tenant the purchase
price by the combined operation of s.
32(1) and s. 32-H(1) (i) of the Tenancy Act.
Section 32(1) so far as material runs thus:
447 "On the Ist day of April, 1957,
(hereinafter referred to as 'the tillers' day') every tenant shall, subject to
the provisions of the next succeeding sections, be deemed to have purchased
from his landlord, free of all encumbrances subsisting thereon on the said day,
the land held by him as tenant, if (a) such tenant is a permanent tenant
thereof and cultivates the land leased personally;
(b) such tenant is not a permanent tenant but
cultivates the land leased personally; and (i) the landlord has not given
notice of termination of this tenancy under section 31: or (ii) notice has been
given under section 31, but the landlord has not applied to the Mamlatdar on or
before the 31st day of March, 1957 under section 29 for obtaining possession of
the land; (or) (iii) the landlord has not terminated this tenancy on any of the
grounds specified in section 15, or has so terminated the tenancy but has not
applied to the Mamlatdar on or before the 31st day of March, 1957 under section
29, for obtaining possession of the lands;
... ... ... ...
..." Section 32-H, so far as material,
runs thus:
"(1) Subject to the additions and
deductions as provided in sub-sections 1A and 1B, the purchase price shall be
reckoned as follows, namely:- (i) In the case of a permanent tenant who is
cultivating the land personally 448 the purchase price shall be the aggregate
of the following amounts, that is to say,- ... ... ... ...
..." (ii) In the case of other tenants
the purchase price shall be the aggregate of the following amounts, that is to
say,- (a) such amount as the Tribunal may determine not being less than 20
times the assessment and not more than 200 times the assessment;
... ... ... ...
..." According to the petitioner in W.
P. 120 of 1958 the total area of land held by him in his villages is 62,588
acres out of which only 703 acres are in his personal cultivation and the rest
is held by tenants who are non-permanent tenants. He contends that by the
operation of s. 4 of the impugned Act most of these persons are likely to be
placed in the category of permanent tenants with the result that the
petitioners would be compelled to accept purchase price at a much lower rate,
that is, they would get only six times the assessment instead of between 20 and
200 times the assessment, as may be determined by the tribunal. According to
him his estimated loss would be over Rs. 14,00,000. On behalf of the State it
is denied that the petitioner would be put to any such loss.
The substance of the argument of Mr. Pathak
is that the right to claim compensation under s.32H(1)(ii) from the ordinary
tenants having vested in the petitioner it cannot be taken away by the Bombay
legislature by extending the definition of "permanent tenant" so as
to include within it those who were merely ordinary tenants on the
"Tillers' Day". He formulated his grounds of attack on the legislation
as follows:
(1) The Bombay legislature was not competent
to enact the impugned Act as the subject 449 matter thereof is not covered by
any entry in List II.
(2) The impugned Act is colourable
legislation as it amounts to a device adopted for the purpose of confiscating
money, the right to claim which had vested in the landlord as purchaser on
April 1, 1957, and that the State legislature had no power to make a law with
respect to this matter.
(3) The impugned Act being outside the
legislative competence of the Bombay legislature, taking away of the
petitioner's money was a contravention of Art. 31(1) of the Constitution.
(4) The acquisition of money is not for a
public purpose as taking money from one and giving to another is not a public
purpose.
(5) Even assuming that the acquisition was
for a public purpose no compensation has been provided by the Act or could
indeed be provided by the Act and, therefore, Art.
31(2) is contravened.
(6) The impugned Act contravenes Art.
19(1)(f) of the Constitution inasmuch as it authorises
the confiscation of money.
(7) The Act infringes Art. 14 of the
Constitution as there are other classes of tenure-holders similarly situate to
whom the impugned Act does not apply.
All these grounds of attack, except the last,
rest upon one assumption and that assumption is that s.
4 of the impugned Act extends the definition
of permanent tenants and brings within its fold persons who were till April 1,
1957, that is, the "tillers' day", ordinary tenants. If this
assumption is invalid then the whole edifice which Mr. Pathak has built upon it
must tumble down. Let us 450 consider what exactly s. 4 of the impugned Act
does. In order to appreciate Mr. Pathak's argument properly it would be
desirable to reproduce that section as well as ss. 3 and 6. These sections run
thus:
Section 3 : "A person shall, within the
meaning of the relevant Land Tenure Abolition law, be deemed to be an inferior
holder, a permanent holder or, as the case may be, a permanent tenant, on the
date of the abolition of the relevant land tenure, if his name has been
recorded in the record of rights or other public or revenue records as an
inferior holder, permanent holder or permanent tenant in respect of any tenure-
land- (a) on the date of the abolition of the relevant land tenure, or (b) in
pursuance of orders issued during the course of any proceedings under the
relevant Land Tenure Abolition law or, as the case may be, the Bombay Land
Revenue Code, 1879- (i) before the commencement of this Act, or (ii) after the
commencement of this Act in cases in which inquiries were pending at the
commencement of this Act, or (c) in pursuance of an order issued by the
Mamlatdar in respect of an entry under section 6 of this Act." The
relevant Land Tenure Abolition law for our purposes is the Bombay Tenancy
Abolition Act and tenure land means taluqdari land.
Section 4 runs thus:
"For the purposes of the relevant Act
specified in part I of the Schedule, a person- 451 (a) who on the date of the
commencement of that Act was holding any tenure land, and (b) who and whose
predecessors in title, if any were, immediately before that date for such
continuous periods as aggregate to a total continuous period of twelve years or
more, holding the same tenure-land or any other tenure-land, as a tenant or
inferior holder under the tenure-holder for the time being on payment of an
amount exceeding the assessment of the land, shall unless it is proved by the
tenure-holder that he would not have been a permanent tenant on the basis of
continued possession of the land under clause (b), be deemed to be a permanent
tenant of the land under clause (a) and all the provisions of that Act shall
apply to him as they apply to a permanent tenant." Section 6 runs thus:
"(1) The rights of an inferior holder,
permanent holder or permanent tenant under sections 4 and 5 shall be entered in
the record of rights unless the tenure-holder applies in writing to the
Mamlatdar within six months from the date of the commencement of this Act for a
declaration that any holder or tenant under him is not an inferior holder, a
permanent holder or, as the case may be, a permanent tenant.
(2) Any such application shall be disposed of
as if it were an application in respect of a disputed case under section 135D
of the Bombay Land Revenue Code, 1879." Thus according to s. 3 a person
whose name is recorded in the record of rights or other public revenue records
as a permanent tenant in respect of tenure land he will be deemed to be a
permanent 452 tenant within the meaning of the expression occurring in the
Abolition Act.
As already stated, for ascertaining the
meaning of the expression one has to go to para. 2 of s. 83 of the Code. No
doubt, it merely raises a presumption as to permanent tenancy but from that
para. we can deduce the essential feature of a permanent tenancy.
The argument is that s. 3 being a deeming
provision in so far as the Abolition Act is concerned, gives new definition of
a permanent tenant. What the section says is that certain persons will be
deemed to be permanent tenants for the purpose of the Abolition Act. Who are
these persons ? Are they chosen arbitrarily and put in that class though they
could not possibly have been so put under the previous law ? A bare perusal of
clauses (a) to (c) of s. 3 shows that only tenants who have been found on
enquiry to be permanent tenants, at least presumptively, are to be regarded as
permanent tenant, for the purpose of the Abolition Acts and their status as
permanent tenants can no longer be questioned. In regard to persons whose cases
fall under clauses (a) and (b) all that the section has done is to take away
the right of the tenure-holder to challenge in a collateral proceeding their
status as permanent tenants. As regards tenants falling under cl. (c) what the
provision has done is to require the tenure holder to object to the recording
of such person as permanent tenant within a certain time before the mamlatdar.
If he fails to avail himself of the opportunity the door is shut to his saying
thereafter that the person is not a permanent tenant. It is to be noted that
tenants who are to be regarded as permanent tenants for the purposes of the
Abolition Act have been so found in enquiries held by revenue courts and not
persons arbitrarily selected or persons who could not reasonably be regarded as
permanent tenants.
453 The inclusion of persons as permanent
tenants in the register of rights may be prior to the commencement of the
Abolition Act or after its commencement. The proceedings for the inclusion may
have been instituted prior to the commencement of the Abolition Act or may be
instituted under the impugned Act. If they hold in favour of the tenant he will
be deemed to be a permanent tenant.
The landlord cannot then be permitted to say
that he is not a permanent tenant. It is difficult to see how this disability
imposed upon a landlord to dispute the fact that a person is a permanent tenant
be regarded as enlarging the definition of a permanent tenant. It is true that
s. 135.J of the Code granted the landlord a right to challenge the correctness
of an entry in the record of rights in collateral proceedings without reference
to time and that right is abrogated by the impugned Act but even so doing that
cannot be regarded as taking away a vested right. Within what time, in what circumstances
and in which manner a particular fact is open to challenge is only a matter of
procedure and it cannot be disputed that there is no vested right in procedure.
The effect of the provision thus is that in
proceedings under the Abolition Act for conferral of a right of an occupant the
claimant's status as a permanent tenant cannot, if he satisfies the requirement
of any of the three clauses of s. 3 of the impugned Act be open to question by
the tenure-holder. Would the position have been any different if the impugned
Act had not been passed ? Let us consider s. 5A of the Abolition Act by itself.
Suppose a person recorded as a permanent tenant in the record of rights claimed
to enforce the right conferred by this section to obtain the right of an occupant
in proceedings thereunder.
These proceedings would be taken before a
revenue officer and he would be bound to act on the entry in the record 454 of
rights until and unless it was lawfully substituted by another. No suit lies
for correcting an entry in the record of rights. Only in a collateral
proceeding could it have been challenged and the jurisdiction of a civil court
be invoked. Where no such suit or proceeding is pending when the proceedings
under s. 5A are going on the tenure-holder cannot be permitted to go behind the
entry. However, as an additional safeguard the Abolition Act has provided in s.
5A itself a remedy and that is to approach the State Government or an authority
empowered by it in this behalf for deciding to question.
Clause (b) of s. 3 of the impugned Act, as
also cl. (c), expressly contemplate cases where there is a dispute as to the
status of a person and if it has been decided in favour of the person claiming
to be a permanent tenant he is to be deemed to be a permanent tenant for the
purposes of the Abolition Act. True that thereafter the tenure-holder cannot
challenge the fact even in a collateral proceeding but that would be by reason
of the provisions of s. 5A itself which have not been challenged. No doubt
after the commencement of the impugned Act no new proceedings under s. 5A of
the Abolition Act are permissible but that is because an alternative remedy is
available under s. 6 of the impugned Act.
We must now examine s. 4 in detail. It
provides that a person who, on the date of the commencement of the Abolition
Act was holding any tenure land and who, and whose predecessors in title, if
any, were immediately before that date "for such continuous periods as
aggregate to a total continuous period of 12 years or more" holding the
same tenure land or any other land as a tenant be deemed to be a permanent
tenant "unless it is proved by the tenure-holder that he would not have
been a permanent tenant on the basis of continued possession of the land under
clause (b)". It is difficult to appreciate how it expands the definition
of permanent tenant. True, it says that such a 455 tenant will be deemed to be
a permanent tenant but it does not stop there. It goes on to say that he will
be so deemed unless the tenure-holder can show that he cannot be so deemed !
What does s.4 mean when it says that a tenant shall be deemed to be a permanent
tenant ? Clearly, the legislature had in mind the provisions of s. 83 of the
Code which by virtue of s. 16 of the Abolition Act apply to all ex-taluqdari
villages. To repeat, the impugned Act does not define "permanent
tenant" anywhere and that it is from para 2 of s. 83 of the Code that we
must infer that a person whose tenancy is co-extensive with that of the
landlord is a permanent tenant. A tenure-holder can get rid of the presumption
raised by this provision if he can show the precise date of the commencement of
the tenancy or if he can show that the tenancy is terminable in particular
circumstances or on a particular date. We find nothing in s. 4 which directly
or indirectly modifies the requirements of the definition of "permanent
tenant". No doubt, para 2 of s. 83 of the Code sets out certain conditions
for raising a presumption of permanent tenancy and s. 4 of the impugned Act modifies
them. But by doing so, it is difficult to see how it alters the basic
requirements of a permanent tenancy as deducible from para 2 of s. 83 of the
Code. All that s. 4 does is to alter the conditions for raising the presumption
but that cannot amount to altering the definition of "permanent
tenant." According to Mr. Pathak, however, the section permits the
landlord to prove only that the tenant and his predecessors in title were not
in possession for a continuous period of twelve years or more, on the date of
the commencement of the Abolition Act and that if they fail to prove this, the
presumption raised by the section would be irrebuttable. Thus according to him
s. 4 makes a person who is in possession as a tenant for over twelve years, a
permanent tenant even if the date of the commence- 456 ment of his tenancy was
known or the duration thereof was for a definite period. In our opinion,
reading the section that way would lead to an absurdity. It is admitted on both
hands that s. 4 is intended to be availed of only in proceedings under s.6 to
which a landlord would be a party.
Clause (b) of that section which enacts the
second condition which has to be fulfilled by a person before he can avail
himself of the presumption under that section prescribes the minimum "duration"
of a tenancy and does not deal with the question of its commencement or terms.
Either the tenant fulfils that condition or he does not. If he does not fulfil
it no further question arises and he must be deemed to be an ordinary tenant
and nothing more. Therefore, if the tenant satisfies the condition, it would be
meaningless to give to the tenure-holder an opportunity of disproving the very
thing which had been proved in his presence and upon proof of which the tenant
has been able to enlist the presumption created by the section in his aid. Such
a construction would render the provision absurd or at best useless.
If the section was capable of being read in
the way Mr. Pathak wants, it would read thus: "A person who has been in
possession of tenure land at the commencement of the Abolition Act and was
holding the same or any other land under the same tenure holder for a
continuous period of 12 years he shall unless the tenure holder proves that he
was not holding the land or lands for the continuous period of 12 years, be
deemed to be a permanent tenant". Surely this would be making nonsense of
the section. We are wholly unable to accept such a reading. We think,
therefore, that the tenure-holder can prove under the section that on the basis
of twelve years continued possession the tenant would not have been a permanent
tenant for other reasons. These other reasons must be the reasons which in
spite of the 457 length of possession would show that he is not a permanent
tenant because the tenancy commenced at a certain time or because a term had
been agreed upon for the tenancy or fixed by usage.
It may be, as the learned Solicitor General
says, that the language used by the legislature is not felicitous. Even so, we
think that it would not at all be far-fetched to construe it as meaning that
the tenure-holder has the right to establish for getting over the presumption,
that the tenancy originated at a definite point of time or was of a finite
duration. The language used by the legislature is in our view capable of only
such construction.
Then it is said that even if s. 4 is
construed as giving an opportunity to the tenure- holder to prove otherwise
than by disproving that the tenant had been in continuous possession of land
under him for twelve years that he is not a permanent tenant, that opportunity
is illusory and really nonexistent and, therefore, s. 4 in effect extends the
definition of a permanent tenant. This contention is based on s. 6 of the Act
which, it may be stated gives the tenure holder a period of six months from the
commencement of the impugned Act to move the Mamlatdar in writing for a
declaration that the tenant is not a permanent tenant within s. 4. It may be
stated that the respondents concede that s. 6 has that effect.
We are, however, unable to agree that s. 6
makes the opportunity to rebut the presumption raised under s. 4 by continuous
possession for twelve years illusory or non-existent. We have first to point
out that we do not find this point taken in the petitions. Secondly, we fail to
appreciate why the six months' time prescribed should be considered as if no
time had really been given to the tenure-holder which would be the effect of
accepting the petitioners' contention.
458 Since six months is not a short period,
within that time it is easily possible for the tenure- holder to move the
required application. Then it is said that it is illusory because there may be
a very large number of tenants and the tenure-holder could be required to make
numerous applications.
Even so, we do not see why it should not have
been reasonably possible to lodge these applications within the period allowed.
All that the tenure- holder has to do is to name the tenant concerned and state
that he wants a declaration that the tenant is not a permanent tenant. It is
also said that the tenure-holder has to make the application in anticipation of
the tenant making a claim to be a permanent tenant. But we are unable to
appreciate how this by itself can make the opportunity to rebut non-existent.
We find no practical difficulty in the tenure-holder making the application in
anticipation.
Furthermore, the question has to be
considered according to the realities of the case.
It is admitted in the petitioners' affidavit
in opposition that the preparation of the record of rights in respect of the
tenants in the taluqdari villages commenced soon after the Abolition Act came
into force, that is, soon after August 15, 1950. Many of the tenants have
already been recorded as permanent tenants and since this could only have been
done with reference to the provision of s. 83 of the Code the petitioners can
have no grievance against such entries. Further, s. 3(b)(ii) of the impugned
Act takes into account the fact that the proceedings in respect of the
preparation of the record of rights were pending at the commencement of this
Act. In these proceedings the tenure holder must already have objected-of
course where he thought fit-to the tenant being recorded as a permanent tenant.
These again would cover quite a number of cases. It is only in regard to the
remaining cases that 459 applications under s. 6 would be required. We think it
right also to point out that the rights under s. 4 of the impugned Act can be
claimed by a tenant who pays for his holding an amount exceeding the assessment
of the land. This we suppose would further reduce the number of tenants to whom
s. 6 would apply. We have no materials on which to show that these would form a
very large number. As we have already stated the petitioners not having raised
the present point out of s. 6, they have not given any materials to show the
cases of how many tenants are outstanding.
Therefore, on the facts on this case, the
petitioners cannot legitimately urge any practical difficulty in making
applications under s. 6. We may also state here that many claims by tenants to
be permanent tenants must have long ago been raised because under s. 5A of the
Abolition Act, as originally framed, a tenant had five years from its
commencement, that is, from August 15, 1950, within which to exercise his
right. At the date of the impugned Act this period had been extended upto
February 28, 1960. The impugned Act came into force on June 10, 1958.
Therefore, at the date of the impugned Act the tenant had about one year and
nine months within which to exercise the right given to him by s. 5-A of the
Abolition Act. It is apparently for this reason that s. 6 of the impugned Act
fixed the period of six months. It is true that later the period under s.5-A
was extended but that was by Act XVIII of 1960 which came into force on April
8, 1960 and had, therefore, no bearing on the legislature fixing the time under
s. 6 of the impugned Act.
According to one of our brethren the
definition of "permanent tenant" is enlarged because even though the
point of time when the tenancies of persons over certain lands commenced were
known these persons are also included in the definition of "permanent
tenant" under the impugned Act and cl. (b) of s. 4 is said to do this. We
may point out 460 that this was not one of the arguments advanced at the Bar
and the respondents had no opportunity of meeting it. That apart, it is clear
that this clause has to be read with Expl. II to s. 5-A of the Abolition Act.
As already stated s. 5-A was not attacked as unconstitutional. Explanation II
thereto provides as follows:
"For the purpose of this section, a
permanent tenant includes a tenant who holds a taluqdari land in exchange of
another taluqdari land of which he was, and but for the exchange would have
been a permanent tenant and who has been in continuous possession thereof since
the date of exchange." We may assume that the Explanation extends the
definition of "permanent tenant" but its validity has not been
challenged by the plaintiffs. Clause (b) of s. 4 of the impugned Act merely
takes note of the practice in tenure villages of changing the holdings of
tenants from time to time and it is apparently for this reason that there was
no challenge to s. 4 of the impugned Act on this ground. It is only the persons
who or whose predecessors in title were tenants in tenure villages from time
immemorial who will get the benefit of the impugned Act and no others. No new
persons will thus be brought in by s. 4(b) and so it is idle to say that it
enlarges the definition of permanent tenant.
It is said that s. 4 widens the definition of
permanent tenant by including tenants the commencement of whose tenancies is
definitely known. But does it do that ? The tenant in a tenure village is a
person holding tenure land. It is not necessary that he and his predecessors in
title should have been holding the same parcel of land since the commencement
of their tenancy. The practice of exchanging parcels of lands prevailed in
tenure villages and Expl. II to s. 5-A has been founded upon it. Section 83 of
the Code refers to the per- 461 manency of the relationship of landlord and
tenant and not to the existence of permanent tenancy with respect to a specific
parcel of land. These provisions have to be read along with s. 4 of the
impugned Act because this Act cannot stand or was not intended to stand by
itself. It adds certain provisions to the Abolition Act and the Code and these
provisions must necessarily be assimilated to those of the main Act. Looked at
this way it is clear that what s. 4 contemplates is a person the commencement
of the tenancy of whose predecessors in title is unknown but who has been in
possession of the same or different parcels of tenure land for a period of not
less than twelve years prior to the commencement of the Abolition Act. It may
be possible to say when he came into possession of a parcel of land `X' where
it was taken by him within or more than twelve years of the commencement of the
Abolition Act but that is not the same thing as saying that the relation between
him and tenure-holder came into existence on that date for the first time. If
in fact it came into existence more than twelve years before the Abolition Act
came into force, may be with respect to different parcels of land from time to
time, he is entitled to be regarded as a permanent tenant, unless of course it
can be shown by the landlord that he or his predecessor in title was first
inducted as a tenant in the tenure village at a definite period of time or that
the tenancy was of a finite duration.
Thus, in our judgment, s. 4 of the impugned
Act does not expand the definition of a permanent tenant. Therefore, it cannot
be said that it has the effect of taking away from the landlord any property
which had vested in him on the tillers' day. It may be that a tenant who, prior
to the enactment of s. 4, was merely recorded as an ordinary tenant because he
could not show that the origin of his tenancy was lost in the mists of anti-
462 quity and that now availing himself of this provision, he can get himself
recorded as a permanent tenant by showing his continuous possession for twelve
years. But s. 4 does not, as we read it, say that he becomes a permanent tenant
in these circumstances in every case. He would not become one if the landlord
shows that his tenancy commenced on a particular date beyond those twelve years
or is of a finite duration.
Section 32H(1) does not confer upon the
landlord the right to claim the price of occupancy at the rates prescribed in
sub-s. (1)(ii) from a person because he is recorded as an ordinary tenant but
only from one who is in fact other than a permanent tenant. If, in fact, he was
a permanent tenant, or can be presumed to be a permanent tenant though till the
coming into force of the impugned Act he was not recorded as such no right to
claim the price of occupancy on the footing that he is not a permanent tenant
of tenure land vested in the tenure-holder by virtue of that provision. Section
87-A of the Tenancy Act renders s. 32H(1)(i) inappropriate to such a tenant. No
question of infringement of the right under Art. 19(1) (f) therefore arises in
such cases.
It was also said that s. 6 of the impugned
Act is void because it puts an unreasonable restriction upon the
tenure-holder's right to hold property and, therefore, offends Art. 19(1)(f) of
the Constitution. This point does not appear to have been taken in the
petitions. In any case, if our construction of s. 4 is right, then the impugned
Act would be saved by Art. 31-A of the Constitution and its validity would not
be open to attack on the ground that it violated Art.
19(1)(f) of the Constitution.
Furthermore, it is difficult to appreciate
how the tenure-holder's right to hold property is affected by s. 6. His right
of property with which we are 463 concerned, is as occupant of certain land
having some permanent or other tenants under him. Section 5-A of the Abolition
Act gives the permanent tenants the right to convert themselves into occupants
and thereby cease to be tenants of the tenure-holder. The validity of this
provision is not at all challenged. A tenant may claim the benefit under this
section only if he establishes that he is a permanent tenant. It is plainly
conceivable that in many cases the tenure-holder may dispute that the tenant is
a permanent tenant.
On such dispute being raised, the tenant has
to prove that he is a permanent tenant. All that s. 6 does is to fix a time
limit within which the tenure-holder shall have the right to dispute that
certain permanent tenants are not permanent tenants. That does make those who
were not permanent tenants, such tenants. Therefore, s. 6 can in no way be said
to affect the tenure- holder's right to property.
Further, it would appear that in most cases
the tenure-holders themselves including the petitioners, have actually applied
to the mamlatdars for a declaration in their favour under this provision and
those applications are pending.
The learned Solicitor-General informed us
that as a matter of fact upon the basis of the records made available by the
tenure-holders tentative entries were made in the record of rights immediately
after the coming into force of the impugned Act and that thereupon the
tenure-holders have applied to the mamlatdar well within six months for a
declaration under that provision.
Thus, according to him the section affords
and has afforded a real opportunity to the tenure-holders to rebut the
presumption created by s. 4. We agree with him.
To summarise, the position is that s. 4 of
the impugned Act by merely enacting the presumption does not take away any
property of the tenure-holder. His property such as it is, is left in tact.
That section 464 does not confer any new property upon a tenant. It only comes
to the rescue of a permanent tenant who is faced with the task of proving the
nature of his tenancy, by raising a presumption of permanency in his favour. If
in fact his tenancy is not permanent and has been extinguished by law but he is
tentatively recorded or is sought to be recorded as permanent, the landlord
can, in a proceeding under s.6(1) rebut the presumption by producing the
documents in his possession or otherwise that the tenancy is not in fact
permanent and, therefore, has been extinguished by the operation of s.32(1) of
the Tenancy Act. If he proves this he will be entitled to claim compensation or
purchase money at the rates permissible under s. 32H(1)(ii) of that Act. That
right of his is not affected in any way by the impugned Act. If he does not
succeed in establishing that, then he will be only entitled to get purchase price
at the rate provided in s.5A of the Abolition Act. That, however, would be by
virtue of the operation of s.5A of the Abolition Act-a provision which, as we
have already said has not been challenged-and not because any provision of the
impugned Act deprives him of a right to claim a higher purchase price.
The impugned Act is plainly applicable only
to matters arising out of a relationship between landlord and tenant. Its
provisions are not intended to apply where such relationship does not subsist.
Therefore, the law must be held to be within the competence of the legislature
by virtue of entry 18 of List II of the Constitution which is to the following
effect :
"Land, that is to say, rights in or over
land, land tenures including the relation of landlord and tenant, and the
collection of rents; transfer and alienation of agricultural land; land
improvement and agricultural loans; colonization." 465 There can be no
question of regarding the impugned Act as colourable because it directly falls
under Entry 18 and deals with matters which have a bearing upon the
relationship of landlord and tenant. The law being thus within the competence
of the Bombay legislature, Art.31(1) of the Constitution cannot be said to have
been infringed. The first three points urged by Mr.
Pathak accordingly fall to the ground. The
fourth, fifth and sixth points are also based on the assumption that the
impugned Act confers upon the persons whose tenancy rights were extinguished on
April 1, 1957, rights of permanent tenancy. Upon the construction which alone
can properly be placed on s. 4 it cannot be said to confer any new rights on
such persons. To repeat, the section applies to permanent tenants and permanent
tenants alone. Therefore, the three contentions raised by Mr. Pathak do not
fall for consideration.
The seventh point urged by Mr. Pathak is that
ss. 4 and 5 of the impugned Act do not apply to other occupants under the
Bombay Land Revenue Code, who are similarly situate and that the result of this
would be that they will be entitled to higher purchase price than that
permissible under s. 5A of the Abolition Act. This, according to him, is a
classification without any reasonable connection with the objects sought to be
achieved by the statute. If our construction of s. 4 is correct, Art. 31-A of
the Constitution would protect the law and the petitioners would be precluded
from challenging it on the ground that it infringes Art 14. Apart from that we
may point out that though the impugned Act applies only to tenure villages and
not to non-tenure villages, there is, in fact a ground of distinction between
villages of the two types. That ground is the availability or otherwise of the
records. In the former all the relevant records were with the tenure-holders
themselves, but as stated in the statement of 466 "objects and
reasons" were not produced by them and this created difficulties in
completing the record of rights. In the latter the records having been
maintained by the Government were available and therefore, no difficulty was
experienced in completing the record of rights. The classification is thus
based on the extent of the availability of the material for raising an
inference or a presumption and, therefore, has a reasonable nexus with the
object sought to be achieved by the impugned Act.
Upon this view it is not necessary to
consider the other points urged by Mr. Pathak on the authority of various
decisions because the very basis of those arguments is, in our opinion,
unsound. The petitions are, therefore, dismissed with costs. As there was only
one common argument we direct that there will be only one set of costs.
AYYANGAR, J.-I entirely agree with the order
proposed to be passed by my Lord the Chief Justice and my learned Brother S.K.
Das J. The only reason for my separate judgment is because of the views I
entertain regarding the import of the Bombay Land Tenure Abolition Laws
(Amendment), Act 1958 (Bombay Act LVII of 1958) hereinafter referred to as the
impugned Act, and in particular of s. 4 thereof.
The facts of the case and the relevant
statutory provisions bearing upon it are set out in extenso in the judgments of
my learned brethren and they do not need to be repeated Before entering on a
consideration of the proper construction of the impugned Act it is necessary to
state that I did not understand the learned Solicitor-General to contest the
position that if the impugned Act extended the definition of the term permanent
tenant beyond that which obtained under s.83 of the Land Revenue Code, and
brought into that category tenants who before then were comprehended within the
class of "other tenants".
467 under s.32H(1)(ii) of Bombay Act 13 of
1956, its constitutional validity could be sustained, having regard to the
decision of this Court in Sri Ram Ram Narain Medhi v. State of Bombay(1)
holding that the effect of the 1956 legislation was to replace the relationship
of landlord and tenant by that of vendor and purchaser as between the
tenure-holder and his tenants. His submission was accordingly directed to
establishing that the impugned Act while not modifying in any manner the basic
requirements needed to constitute a person a "permanent tenant" under
s. 83 of the Code, merely shifted the onus of proof on to the tenure-holder on
certain stated facts being found.
It is this view which has found favour with
my learned brother Mudholkar J. On the Construction of the relevant provisions
of the impugned Act, he has held that the status or character of a permanent
tenant or the definition of that term has not been altered in any manner, and
that whereas before the impugned enactment the onus was upon the tenant to
prove all the necessary elements to establish his claim to be a permanent
tenant, the change effected by the Act of 1958 was to throw on the landlord the
burden of proving the origin of the tenancy and its terminable character in the
event of its being proved that the tenant had been in possession of his holding
for twelve Dears before August 15, 1950. If this construction of the effect of
the impugned Act were accepted I agree it would go a considerable way towards
establishing the constitutional validity of the impugned provision.
I feel myself however unable to accept the
construction of s.4 of the impugned Act which was put forward before us by the
learned Solicitor- General for the State and Mr. Nathwani on behalf of the
contesting tenants. To start with, the long 468 title of the Act itself states
that the Act is one for further to "define" permanent tenants. No
doubt, where the operative words of the provision are clear that only a
shifting of the onus of proof is effected, the long title of the Act cannot be
called in aid to vary their proper interpretation, but that is not the position
here.
On the other hand as I shall show presently,
the operative provisions of the enactment appears to me designed to clearly
carryout the purpose set out in the long title, viz., to "define" or
to redefine the class of persons who shall be considered to be "permanent
tenants" for the purposes of obtaining the benefits conferred upon
"permanent tenants" under the law that existed before that date.
The operative provisions of the impugned Act
relevant to the present enquiry are ss. 3, 4 and 6 and they read :
"3. A person shall, within the meaning
of the relevant Land Tenure Abolition Law (in the context the Taluqdari
Abolition Act, 1949), be deemed to be ....... a permanent tenant on the date of
the abolition of the relevant land tenure, if his name has been recorded in the
record of rights or other public or revenue record as..... permanent tenant in
respect of any tenure-land (a) on the date of the abolition of the relevant
land tenure, or (b) in pursuance of orders issued during the course of any
proceedings under the relevant Land Tenure Abolition law or, as the case may be,
the Land Revenue Code, 1879- (i) before the commencement of this Act, (ii)
after the commencement of this Act in cases in which inquiries were pending at
the commencement of this Act, or 469 (iii) in pursuance of an order issued by
the Mamlatdar in respect of an entry under section 6 of this Act."
"4. For the purposes of the relevant Act specified in Part I of the
Schedule, a person- (a) who on the date of the commencement of that Act was
holding any tenure-land, and (b) who and whose predecessors in title, if any
were, immediately before that date for such continuous periods as aggregate to
a total continuous period of twelve years or more, holding the same tenure-land
or any other tenure-land, as a tenant...... under the tenure- holder for the
time being on payment of an amount exceeding the assessment of the land shall
unless it is proved by the tenure- holder that he would not have been a
permanent tenant on the basis of continued possession of the land under clause
(b), be deemed to be a permanent tenant of the land under clause (a) and all
the provisions of that Act shall apply to him as they apply to a permanent
tenant.
Explanation.-The assessment for the purpose
of this section shall be reckoned as provided in clauses (a) and (b) of section
5." "6. (1) The rights of ...........(a) permanent tenant under
sections 4 and 5 shall be entered in the record of rights unless the
tenure-holder applies in writing to the Mamlatdar within six months from the
date of the commencement of this Act for a declaration that any holder or
tenant under his is not....... a permanent tenant.
(2) Any such application shall be disposed of
as if it were an application in respect of a 470 disputed case under section
135D of the Bombay Land Revenue Code, 1879." to extract only the portion
pertinent to the controversy before us.
It will be seen that by force of s. 3 persons
are deemed to be permanent tenants under the Taluqdari Abolition Act, 1949, if
the name of such tenant is recorded in the record of rights or other public records
as "a permanent tenant" in any one of the three events specified in
cls. (a), (b) and (c) of the section. In so far as reference is made to persons
already recorded in the record of rights before the passing of the Act, the
characteristics for determining who a permanent tenant was would obviously have
been based on the pre-existing law and they would have been permanent tenants
under the law apart from the "deeming" provision. The position of
those recorded under cl. (b) might be similar, and it is unnecessary to enter
into a discussion as to whether in cases where an enquiry commenced before the
commencement of the Act but is completed thereafter, the tests brought in by s.
4 of the Act could be availed of to determine the status of the tenant. If one
proceeded on the assumption that the provisions of the impugned Act are not to
be brought in into an enquiry already started there would be no difference
between cls. (a) and (b) of s. 3-and in both cases they would be actual and not
statutorily deemed "permanent tenants".
Sub-cl. (c) however stands on a different
footing.
It brings in, if my construction of s. 4(b)
is correct, a new class of "permanent tenants" - persons who were
before the date of the impugned enactment non-permanent tenants in whom by
virtue of the provisions of Bombay Act 13 of 1956 the interest of the landlord
stood transferred and by whom the purchase-price specified in s.32H(1)(ii) was
payable, into the category of "permanent tenants." 471 Section 3(c)
refers to an entry made by a Mamlatdar under s. 6, but when one looks at s. 6
he is referred to s. 4 as containing or defining the class of tenants whom the
Mamlatdar is enjoined to enter in the revenue records as a "permanent
tenant." Turning now to s. 4, it would be seen that persons are deemed to
be "permanent tenants" if they satisfied three cumulative conditions
: (a) they must be holding tenure-land on the date of the commencement of that
Act, viz., The Taluqdari Abolition Act, i.e., on August 15, 1950, (b) they or those
from whom they claim should immediately before August 15, 1950, have been
continuously in possession of that or any other tenure-land for twelve years,
(c) the amount of rent payable by them should exceed the assessment leviable on
the land calculated according to s. 5. The effect of condition (a) would be to
exclude from the category of permanent tenants those who came into occupation
or were inducted on the land of which they could claim to be permanent tenants,
after August 15, 1950. But every tenant who was in possession of tenure-land on
that date could apparently qualify for obtaining the status of a permanent
tenant, being deemed to be such, if he satisfied the other two conditions. As
regards condition (b), there is obscurity and contradiction attending the
expression "continuous periods aggregating to a total continuous period of
twelve years".
Aggregation would obviously mean an addition
of integers, and when units of time are the integers as is apparent from the
context, in plain words it would mean the addition of broken periods. To posit
continuity in such a case, might possibly suggest that it refers to cases where
a tenant is in possession of different parcels of tenure-land throughout the
twelve-year period, though he is not in possession of any particular parcel
continuously for a period of 12 years, and that the terms of the section would
be satisfied and he would be deemed to have been in "continuous 472
possession" of the land of which he was in possession at the commencement
of the Taluqdari Abolition Act for the purpose of qualifying for permanent
tenancy of that parcel. An analysis of the circumstances attendant on this
condition would reveal the following : (1) Let us take it that during the
period twelve years before August 15, 1950 a tenant had been in possession of
three distinct parcels of tenure land `A', `B' and `C' at different periods but
continuous, i.e., there being no point of time at which he was not in
possession of one or the other of these three parcels and that on the date of the
commencement of the Act he is in possession of parcel `C'. It is possible that
such a situation might arise from exchange of holdings with the consent of the
tenure-holder by a person who was a permanent tenant under the existing law.
But the provision on its terms is not confined to exchanges by such tenants,
but is of wider application. If the proper construction of this unclear
provision of s. 4 be as above, any tenant who satisfied the other conditions of
the section, would be deemed to be a permanent tenant in respect of parcel `C'.
It will at once be seen that the origin of
his tenancy of holding `C' is ex concessis known.
Surely, such a tenant would not be a
permanent tenant within s. 83 of the Bombay Land Revenue Code. It has only to
be added that he would not fall within the definition of a permanent tenant
even under s. 2(10A) of the Tenancy Act inserted by Bombay Act 13 of 1956. The
argument, therefore that s. 4 was merely intended to and provided a rule of
evidence for determining who a permanent tenant was under s. 83 of the Bombay
Land Revenue Code, 1879 and did not extend such category of persons by an
artificial definition, would appear to be negatived even by the first paragraph
of s. 4(b).
This conclusion is strengthened by the
provision made at the end of s. 4(b) of the impugned Act as regards the grounds
upon which the landlord or 473 the tenure-holder could disprove the right of a
tenant to the status of a permanent tenant. That provision reads:
"Unless it is proved by the tenure- holder
that he would not have been a permanent tenant on the basis of continued
possession of land under clause (b)......" The learned Solicitor-General
submitted that to read this portion of s. 4 (b) as meaning that the landlord
has to disprove what the tenant has already proved would be to give it no
meaning at all and that consequently it should be held that in order to give
some rational meaning to the words quoted they refer to tenure-holder having to
prove that the tenant was not a permanent tenant under s. 83 of the Bombay Land
Revenue Code. To put it differently, the construction suggested was that on the
conditions laid down in s. 4(b) being fulfilled, viz., continuous possession of
tenure- land by a tenant for twelve years computed as described, the onus was
shifted to the tenure- holder to prove that the tenant did not fall within the
category of persons described in s. 83 of the Code. I find myself unable to
accept this interpretation of the section. Even if one started with the
presumption that what the impugned Act sought to achieve was not to
"define" a permanent tenant but merely to shift the onus of proving
the status-the conditions of s. 83 of the Code being assumed to be still the
determinant, I do not find words in s. 4 to support the interpretation which
the learned Solicitor-General desires the Court to accept. There is no
reference to s. 83 in the impugned Act and the class of persons who are termed
"permanent tenants" are expressly stated to be those who are deemed
to be such. That itself would be some indication that the class is an
artificial creation brought into existence by the Act. That apart, I have
already pointed out that the opening words of the 474 first paragraph of s.
4(b) contemplate cases where the origin of the tenancy of the parcel in respect
of which permanent tenancy is claimed is known.
Lastly, the words in which the content of the
right of the tenure-holder to dispute the "deemed" permanent tenancy
are couched are wholly incompatible with his having a right to establish that
the tenant does not satisfy the requirements of s. 83 of the Code. The words
used are "that the tenant would not have been a permanent tenant on the
basis of continued possession of land under clause (b)". The conditions on
the fulfilment of which a person is deemed to be a permanent tenant are, as
already pointed out, three and of these two are set out in sub-cl. (b), viz.,
the "continuous" possession of tenure-land and the rent of the land
being higher than the revenue assessment. In my opinion the argument about the
irrationality of the literal construction of the quoted words or s. 4(b) stems
from the assumption that s. 4 contemplates an enquiry or proceeding initiated
by the tenants who by evidence establish the matters set out in s. 4 and it is
on that basis that the submission is made that the legislature could not have
made a provision for the same matters being disproved by the tenure- holder.
Even if the basis be assumed to be correct, I do not see any absurdity in the
provision. But that apart, in my judgment s. 4(b) does not contemplate or
provide for any application by the tenant and therefore there is no question of
the tenant having established that the conditions of s. 4(b) have been
satisfied.
Section 4(b) enacts a positive rule of law by
which a person in possession of a holding of tenure-land on August 15, 1950 is
"deemed" to be a permanent tenant on the fulfillment of three
conditions, the tenure-holder being entitled to establish that the conditions
of that section have not been satisfied when proceedings for that purpose are
initiated by him. The 475 provision for proceedings being initiated by the
tenure-holder to take advantage of the right granted to him by s. 4(b) is to be
found in s. 6.
What has just been stated is amply borne out
by the terms of s. 6, for it enacts that the rights of a permanent tenant under
s. 4 "shall be entered in the record of rights unless the tenure- holder
applies in writing to the Mamlatdar within six months from the commencement of
the Act of a declaration that the tenant under him is not a permanent
tenant" (to quote only the material words). It will therefore be seen that
the concept of permanent tenant as envisaged under s. 4 is incorporated into
the texture of s. 6. Every person who satisfies the definition of a permanent
tenant under s. 4 is therefore automatically entitled without application by
him, to be entered in the revenue records as a permanent tenant by the
Mamlatdar unless the tenure-holder applies in writing objecting to the entry.
Obviously the objections which he could raise and which would be the subject of
adjudication under s. 6 are those set out as being open to him under s. 4. In
this connection it has to be noticed that s. 6 does not specify the grounds
upon which the tenure-holder might object to a tenant being treated as a
permanent tenant and it is on the absence of those provisions that the learned
Solicitor-General bases his argument suggesting that the objections of the
tenure-holder would extend to disproving that the tenant was a permanent tenant
under s. 83 of the Code. It is not possible to accede to this submission. It is
common ground that no enquiry is contemplated under s. 4(b) and that the right
of the tenure-holder to object to the entry of the tenant as a permanent tenant
is by taking advantage of the provision in s. 6. It would therefore follow that
s. 4(b) and s. 6 are integrated provisions, the one laying down the grounds of
objection open to the tenure-holder, and s. 6 making provision for the forum in
which and 476 the procedure by which such objections could be urged. To put the
matter slightly differently s. 4(b) specifies the grounds of objection open to
a tenure-holder but does not indicate where and in which proceeding the
objections could be raised- while s. 6 indicates that the authority to decide
is the Mamlatdar and that the proceeding would be initiated by an objection
petition filed by the tenure-holder. Both s. 4(b) and s. 6 would be truncated
unless they were read as forming an integrated whole. It is in this manner that
a reconciliation is possible between the terms of ss. 4 and 6 which so to speak
form together provision for determining, after investigation.
the class of persons who shall be entitled to
claim rights as permanent tenants. Section 4 having defined a permanent tenant
in positive terms, s. 6 steps in and sets up a procedure and creates a forum in
which that positive provision might be tested and if not displaced would be
given effect to. In the view I have expressed the reference to the enquiry
being under s. 135D of the Code would not make any difference, because the
officials and Tribunals or Courts vested with authority under s. 135D of the
Code and the related provisions would have still to consider whether the tenant
had or had not qualified to be a permanent tenant by the application of the
criteria enacted by s. 6. I am therefore clearly of the opinion that the entire
object and purpose of the impugned enactment which is given effect to by its
operative provisions enacts not a rule of evidence for determining who
permanent tenants are under the pre-existing law, but to define, create and as
it were, add a new class of "permanent tenants", i.e., those who
satisfy the requirements of s. 4.
If this were the proper construction of the
impugned enactment it was not seriously contested that the enactment would be
void and unconstitutional and liable to be struck down. I agree therefore that
these petitions should be allowed.
477 BY COURT : In accordance with the opinion
of the majority, these petitions are allowed with costs. As the petitions have
been heard together there will be only one hearing fee.
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