TMI Blog1958 (11) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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) of the said Act defined Land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of colourable legislation and in any event a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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.C.R. 829, 836, 837) also expressed the same opinion and stated:- Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression 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. 97-99 (Chapter IV):- 4. Effects of Land-Revenue Administration and Revenuefarming. Then again the greater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulated, 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 remitted either wholly or in part or in other words alienated or assigned to grantees for various purposes. Various la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 certain Acts which dealt with specific tenures mentioned above, e.g., Bhagdari and Narvadari Tenures Act (Bom. V of 1862), and Khoti Settlement Act (Bom. 1 of 1880); but by and large they were tenures in regard to unalienated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 direct relationship was thus established between the government and them. These Acts so far as our present purpose is concerned are only mentioned to show the different types of land tenures which existed in the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 change of ownership or management thereof, the word retrenchment was construed in a narrow sense because the word retrenchment connoted in its ordinary acceptance that the business itself was being conducted and a portion of the staff or labour force was discharged as surplusage. This Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 with those interests and no others. The Watandars, Saranjamdars, Inamdars and Taluqdars and the like were no doubt holders of estates but does that fact militate against the occupants also holding estates in the lands which were the subject-matter of their tenures. The words of the definition contained in s. 2(5) of the Bombay Land Revenue Code, 1879, were clear a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 occupancy is stated to be transferable and heritable. Section 73 as it was enacted in 1879 read as follows: The right of occupancy shall subject to the provisions contained in section 56, and to any conditions lawfully annexed to the occupancy and save as otherwise prescribed by law, be deemed an heritable and transferable property. Certain amendments have been made in this section by various Bombay Land Revenue Amendment Acts, (Bom. VI of 1901 and Bom. IV of 1913) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivate 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, malik or a khot or any person not hereinbefore specified who is a holder of land or who is interested in land, and whom the State Government has declared on account of the extent and value of the land or his interests therein to be a landholder for the purposes of this Act. The latter part of this definition is significant and shows that not only holders of alienated lands but also holders of unalienated lands were comprised therein provided, however, the extent and value of the land or their interests therein were such as to deserve a declaration in that behalf at the hands of the State Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 thereof and when the Constitution (First Amendment) Act, 1951, was passed introducing Arts. 31A and 31B in the Constitution, care was taken to specify the 1948 Act in the Ninth Schedule so as to make it immune from attack on the score of any provision thereof being violative of the fundamental rights enacted in Part III of the Constitution. The 1948 Act was the second item in that schedule and was expressly saved from any attack against the constitutionality thereof by the express terms of Art. 31B. The impugned Act which was passed by the State Legislature in 1956 was a further measure of agrarian reform c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 the petitioners (1) that the extinguishment or modification of any such, rights should only be in the process of the acquisition by the ,State of any estate or of any rights therein and (2) that the provisions in the impugned Act amounted to a suspension of those rights but not to an extinguishment or modification thereof We shall now proceed to examine these contentions of the petitioners. Art. 31A(1)(a) talks of two distinct objects of legislation; one being the acquisition by the State of any estate or of any rights therein and the other being the extinguishment or modification of any such., rights,. If the = acquires an estate or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject 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 partly as tenant but the area of the land held as owner is equal to or exceeds the ceiling area (s. 32B). Section 32C empowers the tenant to chose the land to be purchased if he holds lands separately from more than one landlord and in spite of anything contained in the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (Bom. LXII of 1947) the tenant shall be deemed to have purchased even such fragments of the land held on tenancy (s. 32D). The balance of any land after the purchase by the tenant as above is to be disposed of as if it were land surrendered by the tenant (s. 32E); and the right of the tenant to purchase such land where the landlord is a minor, or a widow, or a person subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions, it is submitted, do not vest the title to the land in the tenant at all until all these conditions are fulfilled and if any one or more of them is not fulfilled the purchase becomes ineffective-in fact it is no purchase at all-with the result that the title to the land which is already vested in the landlord is not at, all transferred to the purchaser. If that is so, there is no compulsory sale or compulsory purchase of the land in question on the tiller s day or the alternative period of time prescribed therefor and there is no extinguishment of the rights of the landlord. His rights in the land are merely suspended and such suspension is certainly not an extinguishment of his rights therein nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Tribunal, s. 32M declares the purchase to be ineffective but in that event the land shall then be at the disposal of the Collector to be disposed of by him in the manner provided therein. Here also the purchase continues to be effective as from the tiller s day until such default is committed and there is no question of a conditional purchase or sale taking place between the landlord and tenant. The title to the land which was vested originally in the landlord passes to the tenant on the tiller s day or the alternative period prescribed in that behalf. This title is defeasable 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 there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 thereof the purchase becomes ineffective and the land deemed to have been purchased by the tenant reverts to the Collector to be dealt with in accordance with the provisions contained in the Act in that behalf. It may be that instalments may be spread over a particular period which may thus be determined by the Tribunal and unless default is committed by the tenant in payment of four instalments the purchase does not become ineffective. That, however, is not a provision which makes the payment of price in any manner illusory. The landlord is entitled to the rents of the land as if there had been no purchase of the land by the tenant and the payment of such rent is made the first charge on the land. There is, therefore, no scope for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 of legislative power and s. 7 therefore must be held to be void. The principles by which the courts are guided in the determination of this question are now well settled. In the State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga ([1952] S.C.R. 889, 954) Mahajan, J., (as he then was observed):- The legislature applied its mind to the question Of the method and manner of payment of compensation. It settled its policy and the broad principles. It gave the State Government the power to determine matters of detail after having settled vital matters of policy. It cannot be said that the legislature did not apply its mind to the subjectmatter of the legislation and did not lay down a policy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mind of the executive. The very terms of the section preclude any single individual being treated in this manner because it talks of the variation in the ceiling area and the economic holding being considered by the State Government to be expedient in the public interest and the satisfaction of any individual interest could hardly be said to be a matter of public interest. No doubt individuals would be benefited by the variations contemplated in s. 7 but for that purpose the State Government has got to be satisfied that it is expedient in the public interest to do so and no variation in regard to ceiling area or the economic holding of a single individual can ever be said to have been contemplated within the term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment 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 Bengal v. Anwar Ali Sarkar ((1952] S. C. R. 284, 301) where -it was stated:- Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. The above observations of Kania, C. J., were then quoted and the judgment proceeded:- On the contrary, it is to be presumed that a public authority will act honestly and reasonably in the exercise of its statutory powers..................................... We may lastly refer to the observations of this Court in Pannalal Binjraj v. Union of India ([1957] S. C. R. 233. 257, 258):- It may ..... 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