MAHARANA SHRI JAYVANTSINGHJI RANMALSINGHJI ETC. v. THE STATE OF GUJRAT
Citation: [1962] SUPP. 2 S.C.R. 411; 1961 INSC 359
Court: Supreme Court of India
Bench: BHUVNESHWAR PRASAD SINHA , S.K. DAS, A.K. SARKAR, N. RAJAGOPALA AYYANGAR, J.R. MUDHOLKAR
Judgment date:
Case summary
1961 INSC 359. Supreme Court of India judgment dated 1961-12-22. MAHARANA SHRI JAYVANTSINGHJI RANMALSINGHJI ETC. v. THE STATE OF GUJRAT. Read the judgment...
Judgment text
2 S. C. R. SUPREME COURT REPORTS 411 for attendance of the company "in person", but apart from that we wish to point out that the resolution made by the two companies do not appear to us to delegate the powers of the directors to Arjun Prasad. The conclusion of the High Court that the votes cast by Arjun Prasad on behalf of the two companies. , viz. , Bhandani Brothers and the Hindustan Coal Company, were not valid votes is, in our opinion, correct. The appeals are accordingly dismis~ed with costs. One set of hearing fee. Appeals d;ismisse,d. MAHARANA SHRI JAYVANTSINGHJI RANMALSINGHJI ETC. v. THE STATE OF GUJRAT (B. P. SINHA, c. J. , s. K. DAS, A. K. SARKAR, N. RAJAGOPALA AYYANGAR and J. R. MUDHOLKAR, JJ. ) Land Tenure, Abolition of-Amendment of enactment-If creates a new cla.! s of permanenl. tenanl8-0onslitutional validity-If infringes fundamental rights of erstwhile tenure· holdera--Bombay Land Tenure Abol-ition Laws (Amendment) Act, 1958 (Bom. LYII of 1958), ss.
3, 4, 6-0on•titution of India, Arts. U, 19 (1)(/), 31, 31-A. The petitioners, who were tenure-holders, challenged the constitutional validity of the Bombay Land Tenure Aboli- tion Laws (Amendment) Act, 1958 and in. particular ss. 3 and 4 read withs. 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 timea to 200 times the as>essment under s. 32H of ~e Bombay Tenancy and Agricultural Lands Act, 1948, 1951 . 4rjun Prarad v. Sha•lital SiuJllkarl•I Shah 1961 Denmber 32. IHI Mo},o,ana 8/ari J oywntJ iltglej i R. -lriogJiii etc. v. T"' Slot. of Gufrat 412 SUPREME COU. KT REPORTS [1962] St:Pl'.
a' amended in 1956, and thereby substantially deprived the petitioners of the rifhts acquired by them on the 'tillers' day, April 1, 1957, when they ceased to be tenur rs were cnti1lcd to from their tenants, and that the Stat : Legislature had not the competence to enact it as it was not saved by Art. 31A of the C orutitution. 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 chang- ing the definition of a permanent trnant and changing a rule of evidence, they really reduced the purchase price that the petitioners "'·ere entitled to receive under s. 32H of the Bombay Tenancy and Agriculrural L•n termination of the purchase price.
(b) (i) The amount of interest so calcula- ted 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 land- lord if such products are removed by the landlord during the said period shall be dedu- cted from, the &mount so arrived at. IHl Makarana Shri. J aytJant. singhji Ronmalsinghji etc. v. The Stat, of Gujarat _ Das J. IHI . 11•- 84ri Jlf1H"Jli11(4i& '" • .... ,. ,,"ii tic. v. ·n. 81a1uj Gwjrut Das J. 424 SUPREME OOURT REPORTS [ 1962) SUPP. (2) The State Government may by ·gene- ral or special order, fix diffen'nt minima and maxima for tho purpose of sub-clause (a) of clause (ii) of sub·section (1) in respect of any kind of land hold by tenants in any back- ward 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 secticn 63A. " The differenoe in the purchase price mentioned in s.
5A of the Taluqdari;Abolition Act, 19411, and the purchaao prico mentioned in s. 32H of the Tenancy Act, l 948, 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 assess- ment and the maximum 200 times the assessment. These mmima and maxima are liable tO reduction in the case of land held by tenants in any back- ward area. Now, the main grievance of the pttitioners is this. So for as non-permanent tenants were conce· rned, the title of the petitioners to their lands passed on April I, 1957, to the tenants and the petitioners ceased to be l~ndlords. All that they became etitled to on that day was the purchase price men- tioned in s. S2H.
By one stroke of the pen as it were, the impugned Act, 1958, made 11lmost all non-permanPnt tanants into permanent tenants and thereby deprived the petitionerB of the higher purchase price which they were entitled to got under s. 32H and the aucoeedinf eeotiona of the Tenanoy Aot. 19i8. In petition No. 120 of 1968 the petitionm has stated th&t he would loee about Rs. 14 laos as a reeult of the provisiona of the impugned Act, 1968. We may now read some of the provisions of \he impugned Aot, 1958. The Aot is entWed "an Act 2 S. C. R. SUPREME COURT REPORTS 425 further to define permanent tenants, inferior holders aud permanent holders for the purposes. of certain Land Tenure Abolition laws and to provide for cer- tain other mi. tters.
" In view of the argument advan- ced before us on behalf of the respondents that the impugned Act, 1958 merely changes a rule of evi- dence, it is worthly of note that the long title itself states that the Act is an Act further to define pc1ma- nent tenants, Section 2 of the Act is the interpretation section and the expression 'Land Tenure Abolition law' means in relation to a permanPnt tenant, Acts specified in l'art I of the Schedule. The Taluqdari Abolition Act, l! I±! ) is one of the Am,s mentioned in Part I of the t:lchedule. The expression 'tcnure- holder' means inter alia a taluqdar and 'tenure- land' means inter alia taluqdari land Sections 3, 4 are U aud 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 det'med to be an inferior holder, a permanent ho-Ider or.
as the C l's of the 1ekvant 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 elate for such continuous period of twelve years or more, holding the same tenure-land, or any other tenure-Janel, 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, ehall unless it is proved by the tenure-holder that he would not have been a permanent tenant on the basis of continued posseesion of the land under clause ( b ), be beemed to be a permanent tenant of the land under clause (a) and all the provisions of that Act shall apply to him 118 they apply to a permanent tenant. Explanation. -The assesament for the purpose of this section shall be reckoned as provided in clauses (a) anel (b) of section 5. 6.
(I) The rights of an inferior holder, permanent holder or permanent tenant under sections 4 and 5 shall be entered in the record of rights unleBB the tenure holder applies in writing to the Mamlatelar within six months from the date of the commencement of this Act for a declaration that any holder or tenant uneler him is nut an inferior holder, a \ z s. o. R. SUPREME COURT REPORTS 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 I 35D of the Bombay Land Revenue Code, 1879. " '. f'he constitutional validity of the aforesaid provisions has been challenged before us on behalf of the petitioners on the following grounds.
(I) 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 chang- ing a rule of evidence, it has really confiscated a large part of the :iurchase p1 ice which the petitioners were er! titled to under s. 32H of the TtJnancy 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 argu- ment 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, HJ (1) (f) and 31 would not at all ariae. 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 Maharana Sh t ·' ayva11Jjingkji Ranmalairigh 1te. v. The Stat1 of Gujora DasJ. 1961 Malusrc. na Sfi,i ,,~ ... tsi. ,~ji Raf'JMUU. ,hji etc, •• n, QW. oJGMjtuol D&1J• 428 SUPREME COURT REPORTS (1962] SUPP. without pa. ymont of compensation,then it would be a pieoo of coloura. blo legislation not within the competence of tho State Legislature.
The legislation would then fall on the main ground that it is a piece of colourable legislation, the subj~ct matter of which is not covered by any entry in List II or List III. Therefore, the crux of tho matter iN what is the true scope and. effect of the provisions of the impugned Act, 1958. To this question we now a. ddreas ourselves. It may be stated at the very outset that the coustitutional validity of the r. ,Jovant provisirms of tho Taluqdari Abolition Act, 1949 and the Tenan- cy Act, 1948 aa amended by Bombay Aot, XIII of 1956 has not been challenged before us. In Dhirubha Devisingh Gohil v. The sf,a/,e of Bombay (')and Sri Ram Ram Narain Me,dhi v. 'l'he State of Bombay(•), it was held by this Court that the relevant provi•iona 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 pm visions in 88. 3, 4 and 6 which we h'lve quoted earlier.
What is the scope and effect of those provisions? l::ection 3 in effect states that a person shall, within th'lf meaning of tho 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 haa been recordod 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 oircumstancea- (a) Ln the di. to of the abolition of the rele- vant land-tenure ; or ( b) in pursuance of orders is1med during the course of any prccecding under the relevant ]and tenure abolition law or tho Rcv"nue Code (IJ [19! i5J 1 s. c. R. w1. 12) ll959JSupp. l ~. C. R. 4l! 9. 5\8·519. 2 S. C. R. SUPREME COURT REPORTS 429 either before or after the commencement of the impugned Act, 1958 ; or (cl 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 refocred 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 word~. if any one of the three circums- tances mentioned in the section exists, then by a fiction of ·law a person who fulfils that circumstance must be deemed ~o 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 a.
ny 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 contin•10us period of 12 years or more, holding the same tenure land, or any other tenure land shall unless it is proved by the tenure- hol rely by the words used, one wnuld b'e inclined to accept the first view. On that view, the Se empnt. ol' the ter. ancy is not known 0! 1 tlrn~ its intt•nrkr1 duration was not' agrc·P. d upon between thl' landlord and tenant or was not ~overn~d by any usage of 'the locality. R~C'-! inn 4 of tho impugn•·d Act, Ul58 gi,·e~ a go· by to thesP circum- ~tanc!. 's. It bringM in diffor1~nt consirfomtions :tlt0- geth«1« In effect. it says that. if n. pernon \\·hs in possp;;siou of m1y tenure-limcl on AuQw;t 1:3, UlB"\l (the elate of conimeneell:icnt of the T:i. ii,;1ci>ll"i A holi- tiou At't, I 0-l! l) and was further more in P"'··'e~g;.
"l '- f the same tenure-land or any other tent' tr· hnd for· a co::tiPut1u,1 n. ggrPgate pei·iotl of- t\\·eh-e Y nant and creates a new cl:uis of perqmmmt tenants who wcrn not permanent tenants on April 1, )! )57. If this virw id correct, and we think thnt there is a good deal to be said in favour of this view, then s. 4 of the impugned Act, I 958 in spite of giving the t nant, every tenant under him -who-folfils the oonoitit>ns mentioned in els. (a} and (b) of s. 4 art; once gets recm·ded in the record of rights as 3' permanent tenant.. As soon as he is so rncbrded, he must be deemed under s. 3 to J,,, a permanent tenant by a fiction of law ·and under s. 4 all the provisions of the Taluqdari Abolition Act, 1949, will apply to h! m a8 thtiy apply to a permanent tenant. Thi~ combined effect of ss. if, 4 and 6 of the im~ pugned Act, 1958 does in our opinion depri•:! 'I the tenure-holder of any real opportunit.
y of contesting the claims of his tenants 1md makeR them perma- nen~ -tenants once they ate recorded in the record of rights, thereby depriving the tenure-holde~ of the purchase price which he was entitled to get from t. Jiem under s. 32H of the Tenancy Aet, 1948. O! l lwl-ialf of the respondents it was stated at the ~'1. -. · that tht1 petitioners had made applications for a dP. da. :·:. ' ;on ,under s. 6 of the impugned Act. ,, l fl:i8, and ~lt r dealing with other proCt>edings before him, must give effect to ~he provisions oi ss. 3, 4 and 6 of the impugned Act, 1958. It is, therefore difficult to ~cw how the pendency of the suits or other proceedin~s before the Revenue Officers concerned can he of any aBSistance to the petitioners. The question. therefore, boils down to this. Section 6 of the im pugnecl A ct, 1958 does give one opportunity to the petitioners to make a. n application for a decla.
mtion that any ten· ant under him is not a permanent tPnant, but that opportunity was to be availed of within six months from June IO, 1958. Once that opportunity iR lost, the tenure-holder cannot claim that a tc11a. nt who fulfils els. (a) and (b) of s. 4 is not a permanent tenant. Our attention was drawn to sub ss. (3), (4) 11. ncJ (5) of s. 5A of the Taluqdari Abolition Act,I! l49. Those suh-Rections say in effent that if any question a. rises whether any person is a permanent tenant, the Sta,te Government or an officer authorised by the State Government in that behalf shall decide the question; where such officer decides 8uch question any person aggrieved by the decision may file an appeal to the State Government within 60 days from the date of the decision; 'Ind the decision of the State Government shall be final.
It waH not sull'gestcd before us that the aforesaid sub-sections would give the tenure-holder a second opportunity of contes- ting the claim of the tenant, and it seem;; to us quite clear that the tenure-bolder who had failPd to make an application within the time mentioned in s. 6 of the impugned Act, I 9;i8, would not be in a position to take advantage of sub-ss. (3), (4) and (5) of 8. 5A of the Taluqdari Abolition Act, 1949. If se. 3, 4 and 6 of the impugned Act, 1958, . are good and valid in law, then whichever be the autho· rity that has to decide the claim of the tenant, it must decide it in accordance with those provisions. • 2 S. C. R. SUPREME COURT REPORTS 437 In thesP. circumstances can it be said that the oppor- tunity given by s. 6 is' a real opportunity and does it amount to merely changing a rule of evidenci:? We think that this question must be answered m the negative.
It is to be noted that on April 1, 1957 the p~titioners 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 cer- tain specified contingencies. This· Court held that those sections were designed to bring about an extin- guishment, 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 undoub· tedly a right to property. In Bombay Dyeing and. . Manufacturing Go. Lf,(l. v.
The State of Bombay(') 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 nim be- come a debt due to him from the employer and this was property which Pould 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 thats, 3 (1) of the Act in so far as it related to unpaid accumulation in s. 3(2) (b) was unconstitutional and void by rea- son of the riifht guaranteed under Art. 19(1) (f) of the Constitut10n and was not saved by cl. ( 5) thereof. We think that the same principle must apply in the I [J95B] S. C. R. 1. 22. ll/Ol Maharona Slwi JayuanlJinghji Ranmalsinghji etc. v. Th State of Gujarat Das J. IHl -- JI M#'an• SAri K"'""'~U. ,Mi 411fft4/Jt1111tji tk. v. TJ. , .
~'"" 1 J Gujqral Das J, 438 SUPREME COURT REPOl~TS (1962) SUPP· present case. The right of the petitioners to the pur- chase price under s. 3:? H of the Tenancy Act, 1948, from those of their tenants who were non-prrmanent on April 1, 1957, was a right of property in respect of which the petitioners have a guarantee under Art 19 (l)(f). The provisions in ss. 3,4 and 6 of the impugned Act, 1958, in so fa. r as they laid down that in certain circumstances a tenant shall be deemed to be a per- manent tenant from the date of the Taluqdari abolition Act, 1949, adversely affected the right of the petitioners with retrospective effect; it practi- cally wiped off a large part of the purchase price which the petitionol"! I wore entitled to get. Ifs. 6 of the impugned Act, 1958, is to be tested on the touchstone of reasonable restrictions in tho 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 l10w it is re11. 11onablc that the tenure-holder must make an application within six months from the commence- me::t of the impugned Act, 1958, for a declaration that his tcnunts arc not pei:manent teuants. Tho pctitiont>rs have thr nants iitc. It is not disputed that the provisions of Ch. VII of the Code which deals with "superior holders and inferior hold- ers" govem the relationship between tho tenure holders and prrmanrnt 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 relation- ship between landlord and tenant and till April 1, 1957, it is these provisions which execlueively governed the relationship between the tenure-holder and tenants other than permanent tenants and inferior holders.
·It would be necesaary to refer to some of the provisions of this Act while dealing with the arguments advanced before us. By Bombay Taluqdari Abolition (Amendment) Act l of 1955 which came into force on March l, 195:. , the Abolition Act was amended and a now provision was added therein, viz : H. 5A the reliivent portion of which rracls thus : "(I} Notwithstanding anything coi. tai11~J in il rred to as the impugned Act) and in particular of the provisions of s. 4 is challenged before us. We will reproduoe hereafter this section and certain other provisions of the Act which have a bearing upon the arguments addrt·ssed before us. Aocording to l\lr. Pathak ~- 4 of the Act in effect expands the categ«;>ry of permanent tenants by bringing within its fold persons who were merely ordinary tenants prior to the enactment of this provision. So far BB an ordinary tenant is concerned it is Mr.
Pathak's contention that on the tille1 s' clay he bec,\me an occupant of the land or at any rate the landlord (or tenure-holder) lo~t his interest therein and that thereafter the latter became entitled to receive from the tenant the purchase price by the combined operation of a. 32(1) arid s. 32-H(l) (i) of the Tenancy Act. Section 32(1) so far a. a material runs thus : 2 S. C. R.
SUPREME COURT REPORTS 447 "On the 1st day of April, 1957, (herein- after 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 encum- brances 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 per· sonally ; (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 sec- tion 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 obtain- ing possession of the land ; (or) (iii) the landlord has not terminated this tenancy on any of the grounds speci- fied 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 obtain- ing posseBSion of the lands ; " St>ction 32-H, so far as material, runs thus : "(1) Subject to the additions and deduc- tions as provided in sub-sections IA and IB, the purchase price shall be reckoned as follows, namely:- (i) In the case of a permanent tenant who is cultivating the land personally 1951 Makar1.
na Shri Jayvant1inghji Ranmalsinghji etc. v. The State of Cujora M udholkQr J, 1961 M ohar. itta Sltri J 01i antsingltji Ra111Mls1nghji tlt. •• Tht )ltJtt ofG1;jaral ]Jfuah. ol/ta, J. 448 SUPREME COURT REPORTS [1962) SUPP. the purchase price shall be the aggre! rnto of th! ' 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 TribunRI may determine not being less than 20 times the assessment and not morn than 200 times the asseBBment ; " According to the petitioner in W. P. 120 of 1958 the total area of land held by him in his vilfa. ges is 02,588 acres out of which only 703 acres are in hi~ personal cultivation and the rest is held by tenants who are non-permanent tcnantP. He contenrls that by the operation of s.
4 of the impng· ned Act most of these persons are likely to be placed in the cate~ory of permanent tenants with the result that the petitioners would be compelled to accept purchase price at R much lower rate, that is, they would get only six times the assessment instead of bctwPen 20 and 200 times the assessment, ns may bn determined by tho tribunal. According to him his estimated lo88 would be over Rs. 14,00,000. On i:Jehalf of the State it is denied that the petitioner would be put to any such JOBS. The substance of the argument of :\Ir. Pathak iR that the right to claim compensation under s. 32H(l)(ii) from the ordinary tenants having v'sted in the petitioner it cannot be taken away by the Bombay legislature by extemling the definitinn of "permanent tenant" so as to include within it thost> who were merely ordinary tennrts on the "Tillers' Day".
He formulated his grounds of attack on the legislation as follows : (I) The Bombay le11islature was not com- petent to enact the impugned Act as the eubjecl 2 S. C. R. SUPREME COURT RBPORTS 44\l matter thereof is not covered by any entry in List II. (2) The impL1gned 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 land- lord as purchaser on April l, 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 tho Bombay legisla- ture, taking away of the petitioner's mowey was a contravention of A. rt. 31(1) of the Cons- titution. (+)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(l)(f) of the Constitution inasmuch as it authorises the confiscation of money. (7) The Act infringes Art. 14 of the Cons- titution as there are other classes of tenure- holders similarly situate to whom the impug- ned Act does not apply. All these grounds of attack, except the last, rest upon one assu~tion and that assumption is that s. 4 of the impugned Act extends the definition of permanent tenants . anrl brings within. its fold pe. rson~ who were till 4. pr1l l, 1957, that 1s, tho "tillers day'', ordinary tenants. . If this. assumption is invalid then the whole edifice w Inch ilir. Pathak has built upon it muRt tumble down. Let us 1961 M 11harano Shti J ayvantsingli:ji Rt:. nrnalsinghji e 1 c. •. T~ Stati oJ Gujar•t Jlutilr. olk•) J. JHl MM. -8/rti 1..
,_m. loji ~. ,,. J; 11 and who~c predecessors in title, if any were, immediately before that date for such cl)ntirnrnm periods as aggregate to a total coutiBuous period of twelve years or more, holding the same tenure-land or any other tenure-land, as a tenant or inferior holder under the tenur~·holder for the time being on payment of an amount cxr f,·guar ! llt. 'd Act takes into ac~01111t the fact t. hat the proc""rlin·~s in respect of the pr arguments advanced at the ~ar ~nd the respondents had no opportunity of meetmg it. That apart, it is clear that this clause h. as to be read with Exp!. II to s. 5-A of the Aboli- tion Act. As already stated s. 5-A was not attacked a. a unconstitutional. Explanation II thereto provides a. a follows : "For the purpose of this section, a perma· nent tenant includes a tenant who holds a ta.
luqdari land in exchange of another taluq- dari land of which he was, and but for the exchange would have been a permant 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 ohallenged by tho plaintiffs. Clause (b) of s. 4 of the impugned Act merely takes note of the practice in tenuro villages of changing the holdings of tenants frnm timo to time and it is apparently for this reason that there was no chal- lenge 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 tho impugndd 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 tho definition of permanent tenant by including tcnantR the com- mencement of whose tenancies is definitely known. But doos it do that ? Tho tenant in a tenure village is a person holding tenure land. It is not neeessnry that he and his predccrssors in title should have been holding tho Ra. me parcel of lnnd since tho commencement of their tenancy. Tac practice of exchanging parcels of lands prevailed in tenuro vill&. ges and Exp!. II to s. 5-A has been founded upon it. Section 83 of the Code refers to the per- • 2 S. C. R. SUPREME OOUR'r REPORTS 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 provi- sions have to be read along with s. 4 of the impug- ned Act because this Act cannot stand or was not intended to stand by itself. It adds certain provi- sions 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 com- mencement 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- h older 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 impugnetl 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 land. lord any property which had vested in him on the tillers' day. It may be thitt a tenant who, prior to the enactment of s. 4, waa merely recorded as an ordi- nary tenant because he could not show that the origin of bis tenancy was lost in the mist. a of anti- 1661 Jla/rar. ,,,. li/J,i J aYfJants inhtji R11nma/JintAJi 1k· v. The St•te 1/G11i•• Mwlh•lkar J.
JY61 Al altaran I 5h, 1 J •youantJingly i Ilamal,inghji 1tc. •• 7 /,. Skt1:1fGujora1 Mw/Nillt111 J. 462 SUPREME COURT REPORTS [1962) SUPP. quity and that now availing himsolf of this provi· sion, h" can get himself recorded as a permanent knant by showing his continuous possession for tw..! v d from challenging it on the ground that it infringes Art 14. Apart from that we may point out that ~hough the im- pugned 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. Th'. tt ground is the availability or other- wise of the records. In the former all the relevant records were with the tenure-holders themselves, but as Rtated in the statement of 1~1 M tiharana Shri Jq:vvantsinghji Ranma/singhji 1lc. v. The State ojGujaral Mudlwlkar J. 19'1 M oAorhlla Shri J'9r:iantsmth]i Ra11mclsi111hji tk. v. Tiu 8141 vant to the present enquiry are ss. :! , 4 and 6 and they read : "3.
A person shall, within tho meaning of the relevant Land Tenure Abolition Law (in the context the Taluqdari Abolition Act, HJ. 19), be dcrml·d to bc ........................... a pnmanent tenant on the date of the abolition of the relevant land tenur en recordeci in . the T ). This conclusion is strengthened by the provi- sion made at the end of s. 4(b) of the impugned Act as regards the grounds upon whi"h tho lamllor ession of land under elau8e (b)''. The conditions on the fulfilment of which a person iH deemed to be a permanent tenant aro, as already pointed out, three and of these two aro set out in sub. cl. (b}, viz. , the "continuous" posses. sion of tenure-land and the rent of the land being higher than the revenue aSl! essment. In my opinion the argument about the irrationality of the literal construction of the quoted words or ~. 4(b) stems from the assumption thats.
4 contemplates an enquiry or proceeding initiated by the tenants who by evidence establish the matters set out in s. 4 and it b 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 tenur· holder. Even if the basis be assumed to be corrct, I do not see any absurdity in the provision. But that apart, in my judgmont s. 4(b) doos not contem- plate or provide for any application by the tenant and therefore there is no question of the tenant having Cotablished that the conditions of s. 4(b) havo been satisfied. Section 4(b) enacts a positive rule of law by which a person in possess10n of a holding of tenure-land on Au! ,'llSt 15, 1930 is "deemed" to be a permanent tenant on the fulfil- ment of three conditions, the tenure. bolder being entitled to C8tablish that the conditions of that section have not been satitificd when proceed- ings for that purpose are initiated by him. Tho 2 S. C. R.
SUPREME COURT REPORTS 475 provision for proceedings being initiated by the tenure-holder to take advantage of the right granted to him bys. 4(b) is to be found ins. 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 there- fore 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 detlnition of a permanent tenant under s. 4 is therefore auto- matically entitled w;+. hout 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 tliost· 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 uf those provisions that the learned Solicitor-General bases his argument suggesting that the objections of the tenure holder would extend to disproving tbat the tenant was a permanent tenant under s. 8il of the Code. It is not possible . to accede to this submission. It is common ground that no enquiry 'is contiimplated 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 l! Ml Af ahuan. a Shri JtJyvantsfozhji Ra. nm 1lri'lghji etc • ... Tiit State of Gujarat AyyangarJ. I~I M•hartlU s~,; Jo)YentJinghji R11n1MlJingliji tk• v. TJ11 SW1 of Guj. ,•I ... _,_, .. , .. J. 476 SUPREME COURT REPORTS [1962] SUPP. the procedure by which such objections could be urged. To put the matter slightly differently s. 4ib) specifies the grounds of objection open to a t and askej for a decree to be pass~d in accorda. nce there- with. The court passed a decree on the award as modified by the c )mpromise. In execution, the appellant contended that the decree was a nullity as the cr,urt had no jurisdiction to mo. iify the award by compromise. Held, that the decree was not a nullity and was e:<ecut- able.
In cases of compromise after an award, if the parties are dissatisfied with the award and wanted to substitute it by a co1npron1ise involvinb· matters alien t() the original dispute \YhL::h are inseparable, the court n1ay supersede the submhsion and leave the parties to \vork out their agreement in accor- dance with the law outside the Arbitration ;\ct. In such circumstance-s the new cornpr-. 1mise itself furnishes a very g<lod ground for superseding the reference and thus revoking the award. Where the parties do not throw the award overboard but modify it in its operation, the award, in so fa1 as it is not altered still remains operative and continuous to bind the parties and cannot be revoked. If the whole of the subject- ll/Gl Maharana Shri Jayvantsinghji Ranmalsinghji etc. v. Tht State of Gu. iaral Ayyan. 1ar J. January 9
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