9911796707
TMI Blog1961 (12) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned 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 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 leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pant 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 Act, 1949 made the provisions of the Revenue Code applicable thereto and an attempt was made to harmonize the provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he landlord if such products are removed by the landlord during the said period shall be deducted from, the amount so arrived at. (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 pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ope 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenant, unless the tenure-holder proved that he was not in possession for a continuous aggregate period of twelve years 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, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 present case. The right of the petitioners to the purchase price under s. 32H of the Tenancy Act, 1948, from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-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) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 32(1) so far as material runs thus: 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) Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consider what exactly s. 4 of the impugned Act does. In order to appreciate Mr. Pathak's argument properly it would be desirable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 commencement 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Since si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 enl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and; land improvement and agricultural loans; colonization. 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 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 . 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, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of this Act in cases in which inquiries were pending at the commencement of this Act, or (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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
