PETITIONER:
MAHARANA SHRI JAYVANTSINGHJI RANMALSINGHJI ETC.
Vs.
RESPONDENT:
THE STATE OF GUJRAT
DATE OF JUDGMENT:
22/12/1961
BENCH:
DAS, S.K.
BENCH:
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.
JUDGMENT:
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. Some time 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 fulfil
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 fulfilment 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.