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TMI Blog1958 (11) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... pt in the case of -the petitioners in Petition No. 58 of 1958 where the whole of the lands are under the cultivation of tenants. The 1948 Act had been passed by the State Legislature as a measure of agrarian reform on December 28, 1948, with a view to amend the law relating to tenancies of agricultural lands and to make certain other provisions in regard to those lands and the objectives sought to be achieved were thus set out in the second paragraph of the preamble:- " AND WHEREAS on account of the neglect of a landholder or disputes between a landholder and his tenants, the cultivation of his estate has seriously suffered, or for the purpose of improving the economic and social conditions of peasants or ensuring the full and efficient use of land for agricultural purposes, it is expedient to assume management of estates held by landholders and to regulate and impose restrictions on the transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto belonging to or occupied by agriculturists, agricultural labourers and artisans in the Province of Bombay and to make provisions for certain other purposes hereinafter appearing................ Section 2(8) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution challenging the vires of the impugned Act and praying for a writ of mandamus against the State of Bombay ordering them to forbear from enforcing or taking any steps in enforcement of the act, costs and further reliefs. Petition No. 13 of 1957 appears to have been filed on December 3, 1956, but effective steps therein were taken only when an application for, stay with a prayer for an exparte order being C.M.P. No. 359 of 1957 was filed herein on March 21, 1957. Petitions Nos. 38 to 41 of 1957 were filed on March 21, 1957, and Petition No. 55 of 1958 was filed on March 19, 1958. All these petitions followed a common pattern and the main grounds of attack were: that the State Legislature was not competent to pass the said Act, the topic of legislation not being covered by any 'entry in the State List; that the said Act was beyond the am bit of Art. 31-A of the Constitution and was therefore vulnerable as infringing the fundamental rights enshrined in Arts. 14, 19 and 31 thereof; that the provisions of the said Act in fact infringed the fundamental rights of the petitioners conferred upon them by Arts. 14. 119 and 31 of the Constitution; that the said Act was a piece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch specifies the head of legislation as " 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 ". It is well settled that these heads of legislation should not be construed in a narrow and pedantic sense but should be given a large and liberal interpretation. As was observed by the Judicial Committee of the Privy Council in British Coal Corporation v. The King ([1935] A.C. 500,518.):- "Indeed, in interpreting a constituent or organic statute such as the Act, that construction most beneficial to the widest possible amplitude of its powers must be adopted." The Federal Court also in the United Provinces V. Atiqa Begum ([1940] F.C.R. 110, 134) pointed out that none of the items in the Lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. This Court in Navinchandra Mafatlal v. The Commissioner of Income-tax, Bombay City ([1955] 1 S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot; estate " shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam, or muafi or other similar grant and in the States of Madras and TravancoreCochin any janmam rights. (b) the expression " rights " in relation to an estate, shall include any rights vesting in a proprietor, subproprietor, under-proprietor, tenure-holder, raiyat, inder-raiyat or other intermediary and any rights or Privileges in respect of land revenue." The question which we have to address ourselves intially is whether the lands held by the petitioners,who are admittedly landholders within the 8 Act, are of the term contained in s. 2.(9) of the 194 "estates " within the meaning of Art. 31 A of the constitution. Before we launch upon that enquiry it would perhaps be of helP to note how the various land tenures originated. Baden-Powell in his Land-Systems of British India (1892 Ed.), Vol. 1, dealing with the general view of land tenures traced the origin and growth at @p. 97 of different tenures in the manner following at pp. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for some special objects, or to serve as a recompense for services to be rendered. At first such grants are carefully regulated, are for life only, and strictly kept to their purpose, and to the amount fixed. But as matters go on, and the ruler is a bad or unscrupulous one, his treasury is empty, and he makes such grants to avoid the dificulty of finding a cash salary. The grants become permanent and hereditary; they are also issued by officials who have no right to make them; and not only do they then result in landlord tenures and other curious rights, but are a burden to after times, and have furnished a most troublesome legacy to our own Government when it found the revenues eaten up by grantees whose titles were invalid, and whose pretensions, though grown old in times of disorder, were inadmissible. Such grants may have begun with no title to the land but only a right to the revenue, but want of supervision and control has resulted in the grantee seizing the landed right also. Here we find the distinction between the State owned lands which are unalienated where the tenures arise out of the exigencies of revenue collection and alienated lands the revenue whereof is remit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e given under leases and the assessment of which is regulated by the terms thereof are called kauli lands." It will be observed that Mirasi, Dhara, Suti and Muli were all tenures in regard to unalienated lands, the tenureholders being permanent holders of land having hereditary interests in their holdings. , The Khoti tenures in the Konkan and the Bhagdari and Narvadari tenures in some parts of Gujrat were also tenures in regard to unalienated lands, there venue being assessed on those lands on entire villages and not on specific pieces of land either in lump or on the basis of a fixed Bighoti assessment on each field and the tenure-holders being responsible for the payment of the, sum in certain specified modes. The general prevailing tenure, however, was the Raiyatwari tenure where the Raiyat or the tenant had the right of an occupant in his holding. The right of an occupant was a heritable right and on the death of a registered occupant the name of his heir was entered in his place. All these were land tenures in respect of unalienated lands and the Bombay Survey and Settlement Act (Bom. 1 of 1865) passed in 1865. applied, generally to the same. There were of course certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s having leased out parts of the lands to the tenants who actually cultivated the soil and it was urged that the interests of these intermediaries were estates properly so called. It is to be noticed, however, that the several land tenures which were thus abolished were not only tenures in respect of alienated lands but also comprise unalienated lands, e.g., the Bombay Bhagdari and Narvadari Tenures Abolition Act, 1949 (Bom. XXXII of 1949); The Bombay Khoti Abolition Act, 1949 (Bom. VI of 1950) and the Bombay Merged Territories (Janjira and Bhor) Khoti Tenure Abolition Act, 1953 (Bom. LXXI of 1953). There was no distinction made thus between land tenures in regard to alienated lands and those in regard to unalienated lands. It may also be noted that all these Acts followed a common pattern, viz., the abolition of these land tenures, award of compensation to the tenure holders whose tenures were thus abolished and the establishment of direct relations between the government on the one hand and the tenure-holders cultivating the lands personally and the tenants cultivating the soil on the other. All these persons, thus cultivating the soil were given the status of occupants and dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be put upon the expression "estate" as suggested by the petitioners. Reliance was placed by the learned counsel for the petitioners on a decision of this Court in Hariprasad Shivshankar Shukla v. A. D. Divikar ([1957] S.C.R. 121, 132) where the word retrenchment " as defined in s. 2(00) and the word retrenchment " in s. 25F of the Industrial Disputes Act, 1947, as amended by Act XLIII of 1953 were held to have no wider meaning than the ordinary accepted connotation of those words and were held to mean the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise than as a punishments inflicted by way of disciplinary action, and did not include termination of services of all workmen on a bona fide closure of industry or on change of ownership or management thereof. Even though the word " retrenchment" was defined as meaning the termination of services by an employer of the workmen for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, which words were capable of including within their scope the termination of services of all workmen on a bona fide closure of industry or on ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the narrower than the wider meaning. The narrower meaning will affect the liberties of the subject to some extent; the wider meaning will most seriously affect the liberties of the subject in a matter, his personal liberty and safety, which I see no reason in the Act to believe was in the contemplation of the Legislature. I decline to make this more serious interference with the liberty of the subject, unless the Legislature uses language clear enough to convince me that that was its intention, and I think ample meaning is provided for its words, and ample remedy is provided for the grievance in respect of which Parliament was legislating by putting the narrower construction on the general words it has used. " Are there any circumstances in the present case which would compel us to put a narrower construction on the expression " estate " in s. 2(5) of the Bombay Land Revenue Code, 1879 ? It is true that the expression " estate " was used prior to 1879 in connection with the interests which the various tenure holders of alienated lands held in their respective lands but it does not therefore follow that that expression could be used only in connection w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was urged that the Code was passed by the State Legislature in order to consolidate and amend the law relating to Revenue Officers, and to the assessment and recovery of Land Revenue, and to other matters connected with the Land Revenue Administration in the Presidency of Bombay and was merely concerned with the collection of land revenue by the State and had nothing to do with land tenures as such. This argument, however, ignores the various provisions of the Code which define the status as also the rights and obligations of the occupant who has been defined in s. 2(16) of the Code to mean the holder in actual possession of unalienated lands other than a tenant provided that where the holder in actual possession is a tenant, the landholder or superior landlord, as the case may be, shall be deemed to be the occupant. Chapter VI deals with the Grant, Use and Relinquishment of unalienated lands and s. 65 thereof prescribes the uses to which an occupant of land for purposes of agriculture may put his land. Under s. 68 an occupant-is entitled to the use and occupation of his land for the period therein prescribed on fulfilling the conditions therein mentioned and under s. 73 occupanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein and the expression "estate " had a meaning given to it under s. 2(10) there, viz., " any interest in land " which comprised within its scope alienated as well as unalienated lands and covered the holdings of occupants within the meaning thereof. The 1948 Act was passed by the State Legislature in order to amend the law which governed the relations between landlords and tenants of agricultural lands the object sought to be achieved being as hereinbefore set out. Section 2 of the Act defined the expressions " to cultivate personally " (s. 2(6)); ,landholder " (s. 2(9)); " protected tenant " (s. 2(14) ) amongst other expressions and provided in s. 2(21) that words and expressions used in this Act but not defined shall have the meaning assigned to them in the Bombay Land Revenue Code, 1879, and the Transfer of Property Act, 1882, as the case may be. This brought in the definition of the expression " estate " which had the meaning assigned to it in that Code, viz., any interest in land ". The expression " landholder in s. 2(9) above was defined to mean " a zamindar, jagirdar, saranjamdar, inamdar, talukdar, mali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 acres by a notification in the official gazette and power was also given similarly to direct that the limits of fifty acres or the reduced limit specified in such notification shall comprise such kind or kinds of lands in the area as may be specified in the notification. This power was analogous again to the power given to the State Government under s. 7 of the impugned Act to vary the ceiling area or economic holding originally prescribed in ss. 5 and 6 of the Act. These instances culled out from some of the provisions of the 1948 Act go to show that the agrarian reform which was initiated by that Act was designed to achieve the very same purpose of distribution of the ownership and control of agricultural lands so as to subserve the common good and eliminate the concentration of wealth to the common detriment which purpose became more prominent when the Constitution was ushered in on January 26, 1950, and the directive principles of State Policy were enacted inter alia in Arts. 38 and 39 of the Constitution. With the advent of the Constitution these provisions contained in the 1948 Act required to be tested on the touch-stone of the fundamental rights enshrined in Part III the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts amongst others fell within the expression " estate " contained therein. That, however, was not enough for the petitioners and it was further contended on their behalf that even though the impugned Act may be a law in regard to an " estate " within the meaning of the definition contained in Art. 31A(2)(a) it was not law providing for the acquisition by the State of any estate or any rights therein or for the extinguishment or modification of any such rights. The impugned Act was certainly not a law for the acquisition by the State of any estate or of any rights therein because even the provisions with regard to the compulsory purchase by tenants of the land on the specified date transferred the title in those lands to the respective tenants and not to the State. There was no compulsory acquisition of any " estate " or any rights therein by the State itself and this provision could not help the respondent. The respondent, however, urged that the provisions contained in the impugned Act were enacted for the extinguishment or modification of rights in " estates " and were, therefore, saved by Art. 31A(1)(a). It was on the other hand urged by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese words to the plain terms of Art. 31A (1)(a) and the words extinguishment or modification of any such rights must be understood in their plain grammatical sense without any limitation of the type suggested by the petitioners. It, therefore, remains to consider whether the relevant provisions of the impugned Act were designed to bring about an extinguishment or modification of the landlord's rights in their " estates ". These provisions are contained in ss. 32 to 32R of the impugned Act and are under the heading " Purchase of lands by Tenants ". Section 32 provides that " on the first 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 incumbrances subsisting thereon on the said day, the land held by him as tenant........................ provided certain conditions are fulfilled. Under s. 32A the tenant shall be deemed to have purchased the lands up to the ceiling area and the tenant shall not be deemed to have purchased lands held by him as such tenant if he holds lands partly as owner and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndlord a right to recover rent when purchase becomes ineffective, as if the land had not been purchased at all. Section 32P gives the power to the Collector to resume and dispose of land not purchased by tenants. The amount of purchase price is to be applied towards satisfaction of debts (s. 320) ; and the, purchaser is to be evicted from the land purchased by him as aforesaid if he fails to cultivate the land personally (s. 32R). It is argued on the strength of these provisions that there is no effective purchase or effective sale of the land between the landlord and the tenant on the tiller's day or the alternative period prescribed in that behalf until certain conditions are fulfilled. To start with it is only an inchoate right which is given to the tenant to purchase the land which he can perfect on a statement being made by him before the Tribunal that he is willing to purchase the land. Even if he does so, the land does not vest in him because only on the payment of the purchase price either in lump or by instalments can he get the certificate of purchase from the Tribunal. If he commits default in payment, the purchase is ineffective and he gets no title to the land. These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a right in the estate within the meaning of Art. 31A (1)(a), the position as it obtains in this case is that there is no suspension of the title of the landlord at all. The title of the landlord to-the land passes immediately to the tenant on the tiller's 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 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 tiller's 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 Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise. It is not a legislation resorted to by the State Legislature with a view to by-pass the provisions of List II of the seventh schedule to the Constitution, attempting to do something which it was otherwise not competent to do. The legislation being covered by Entry 18 of the said List is really a further measure for agrarian reform which it was well within its competence to enact. It is not an expropriatory legislation in the guise of one covered by Entry 18 in the said List. It only fixes the ceiling area for the holding of the landlord cultivating the land personally and transfers the excess holding to the tenant in actual cultivation thereof and there too the price of the land as fixed by the Tribunal has got to be paid by the tenant to the landlord. The tenant also is not entitled to hold land beyond the ceiling area and there is a balance sought to be struck between the interests of the landlord and those of the tenants so that the means of production are not concentrated in the hands of one party to the common detriment. The price payable is also either in lump or in such instalments as may be determined by the Tribunal and on default committed by the tenant in payment th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, if it is satisfied that it is expedient so to do in the public. interest, to vary, by notification in the Official Gazette, the acreage of the ceiling area or economic holding, or the basis of determination of such ceiling area or economic holding, under subsection (2) of section 5, regard being had to- (a) the situation of the land, (b) its productive capacity, (c) the fact that the land is located in a backward area, and (d) any other factors which may be prescribed." It is contended that s. 7 does not fix any criteria for the guidance of the State Government and that the power which is given to the State Government to vary the ceiling area and economic holding is unguided and unfettered and that it is possible to exercise it at the sweet will and discretion of the State Government even in favour of a, single individual or in favour of political sufferers and the like. It is urged that no broad principle or policy is enunciated by the Legislature in this behalf and it would be open to the State Government to exercise this power arbitrarily and even in a discriminatory manner and that such entrustment of power to the State Government amounts to excessive delegation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one part of the State and another and having therefore enunciated the broad principles and policy which were embodied in ss. 5 and 6 of the Act the legislature enacted s. 7 empowering the State Government to vary the ceiling area and the economic holding if it was satisfied that it was expedient so to do in the public interest, regard being had to the various criteria therein specified. The State Government was to be guided in arriving at its satisfaction in regard to the expediency thereof by (a) the situation of the land, (b) its productive capacity, (c) the fact that the land is located in a backward area, and (d) any other factors which may be prescribed. In so far as the situation of the land and its productive capacity were variable factors, more so if the land was located in a backward area, the State Government was enjoined to have regard to these factors as determining the variations one way or the other from the normal standard adopted by the Legislature in ss. 5 and 6 of the Act. " Any other factors which may be prescribed " would be factors ejusdem generis to the factors mentioned earlier in the section and could not be any and every factor which crossed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expedient to vary the ceiling area and economic holding already prescribed by the legislature and the mere matter of working out the details having regard to those criteria which are specifically mentioned therein which has been delegated to the State Government does not amount to any excessive delegation of legislative power. It is also to be remembered that this power of variation of the ceiling area and the economic holding is vested in the State Government and is left to its subjective satisfaction having regard to the criteria therein specified. As was observed by Kania, C. J., in Dr. N. B. Khare v. The State of Delhi ([1950] S.C. R. 519, 526):- This whole argument is based on the assumption that the Provincial Government when making the order will not perform its duty and may abuse the provisions of the section. In my opinion, it is not proper to start with such an assumption and decide the legality of an Act on that basis. Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension." These observations of Karda, C. J., were quoted with approval by Patanjali Sastri, C. J., in The State of West Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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