TMI Blog1953 (1) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Act, 1948, which having been assented to by the Governor-General, came into force in all the districts of the old Province of Orissa, except Sambalpur, on 14-2-1948. It was alleged by the petitioner that taking advantage of some of its provisions, the opposite party filed a petition (M. P. No. 35 of 1949) in the Court of the Second Officer, Russelkonda, requesting that Revenue Officer to allow him to remain in possession of the said lands. When notice of that application was served on the petitioner he entered appearance before the said Revenue Officer and urged that the provisions of the O. T. P. Act became void after the advent of the Constitution. The Second Officer of Russelkonda while rejecting the contention of the petitioner observed : This subject-matter can better be moved and decided by the Hon'ble High Court of Orissa. So. the petition is rejected and this Court will proceed with the present proceedings. Thereupon the present application under Article 226 of the Constitution was filed before us. 3. It will be useful at this stage to review briefly the history which preceded the passing of the O. T. P. Act, 1948 (hereinafter referred to as the impugned Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . All these classes of proprietors held under their khas possession some lands known as Nij-jote, Nij-chas, Heta etc. which were usually sub-let to Bhag-chasis who paid them half the gross produce rent. The Bhag-chasis (whether under a raiyat, tenure-holder or proprietor) were thus the actual tillers of the soil, but the existing tenancy laws did not give them sufficient security from eviction and the high rate of produce rent payable by them (half the gross produce) left them very little margin even for their bare subsistence. 6. The amelioration of the condition of these Bhag-chasis was engaging the attention of the Governments of many States in India for more than a decade prior to the passing of the impugned Act. A passing reference may be made in this connection to the report of the Madras Estates Land Act Committee of the year 1938 (known as Pakasam Committee) which recommended radical amendment to the Madras Estates Land Act and drastic reduction of the rent payable by the tenants to the landlord. Doubtless the question of the status of the Bhag-chasis (under-tenants) was not fully discussed in that report for reasons mentioned at page 263 of Vol. I of that report. But in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Bhag-chasis was desirable so as to improve agricultural production. As there was some delay on the part of the said Committee in submitting its recommendations, the Government as an interim measure introduced in the Orissa Legislature as early as 19-12-1947, a Bill known as the Orissa Tenants Protection Bill, 1943. The Statements of Objects and Reasons of the Bill are worth quoting. It is well known that the status of the Bhagchasis is very insecure. They have not been, recognised by the land laws in force in some parts of the Province. They can be evicted at the sweet will of the land-holders, who often realise more than half the gross produce as rent besides exacting forced labour, Government, therefore, consider it necessary to give protection to these Bhag-chasis against eviction and in respect of the produce rent payable by them. As comprehensive legislation in this respect is not possible until the report of the Land Revenue and Land Tenure Committee, which is examining these questions, is available the present Bill has been drawn up as an interim measure to give immediate relief to these classes of tenants for a period of two years, The Bill was eventually passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produce; and in South Orissa it directed that the ryot was not bound to pay more than one sixth of the gross produce. As regards Bhag-chasis the section further provided that they were not bound to pay more than two-fifths of the gross produce as rent to their landlord. Section 7 conferred on the Collector and other Revenue Officers exclusive jurisdiction to decide all disputes between landlords and tenants regarding matters which may arise out of the application of the provisions of the impugned Act and Section 8 Busted the jurisdiction of the Civil Courts in respect of those matters. Section 13 declared that the provisions of the impugned Act should, as far as may be, be read and construed as forming part of the Madras Estates Land Act, 1908 and Orissa Tenancy Act, 1913. Section 15 further declared that the impugned Act did not confer any additional right in land on any tenant that on the expiry of that Act the tenant would possess the same right which he would have possessed if the Act had not been passed. Section 17 conferred power on the Provincial Government to do anything which appeared to them necessary for the purpose of removing any difficulty that may arise in giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into operation immediately. The best brains may fail to foresee some special difficulty which may only arise when the machinery of the Act comes to be put into actual operation. If such a difficulty should arise, it may be assumed that Parliament would be prepared to give its assistance in removing it by passing amending legislation; but this course would involve delay, and Parliament accordingly 'a priori' delegates the power to remove difficulties to Ministers, who have proposed the legislation in question and in whom it has confidence. The impugned Act made drastic changes in the existing tenancy laws mainly in 'favour of the Bhag-chasis and the Legislature could not obviously foresee and make adequate provision for all practical difficulties that may arise in giving effect to its provisions. It, therefore, delegated this power to the Government. 11. The propriety of extensive delegation of varied and far reaching powers under the Henry VIII clause was severely commented upon by Lord Hewart C. J. in -- 'Rex v. Minister of Health', (3927) 2 K B 229 at p. 236 (A) while construing Section 67, Rating and Valuation Act, 1925 (15 16 Geo. 5, c. 90). But th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve power and the dividing line between true delegation on the one hand and abdication of functions by the Legislature on the other have been fully discussed in the recent decision of their Lordships of the Supreme Court in -- 'Constitution of India and Delhi Laws Act (1912) Etc., In re.', AIR 1951 S C 332 (D) and it is unnecessary to repeat them here. I would only content myself with observing that the delegation by the Legislature was more extensive in the Delhi Laws Act case and yet their Lordships of the Supreme Court of India held that the impugned laws did not amount to abdication of functions by the Legislature. It is, therefore, futile to urge that Section 17 of the impugned Act is invalid as amounting to abdication of functions. 13. 'Ground No. (ii)': The second ground is also equally untenable. Article 31(2) of the Constitution safeguards the right of a person to compensation when his interest in land is acquired for a public purpose and it corresponds to Section 299(2), Government of India Act, 1935. Prior to the passing of the impugned Act the landlords were entitled to at least one half of the gross produce from the cultivators. Section 6 of the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however should not be torn from the context and taken as an authority for the view that any legislation meant for the benefit of a well-defined class of the general public will not be 'in the interests of the general public'. This point was made clear by 'Mukherjea J. in a later decision of the Supreme Court reported in -- 'Charanjit Lal v. Union of India', at p. 57 (G) wherein he observed: ......I may state here that even if it is conceded for argument's sake that the disabilities imposed by the impugned legislation amount to restrictions on proprietary right, they may very well be supported as reasonable restraints imposed in the interests of general public, viz., to secure The supply of a commodity essential to the community to prevent a 'serious unemployment amongst a section of the people......' In a recent Full Bench decision of the Calcutta High Court reported in -- 'Iswari Prosad v. N. K. Sen', at p. 278 (FB) (H) the Chief Justice of the Calcutta High Court pointed out that 'the interests of the general public' referred to in Article 19(1)(f) did not mean 'the interests of the public of the whole of the Republic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Hence by giving them security of tenure and by reducing the rent payable by them, even though for a temporary period, the impugned Act would only benefit the Bhag-chasis but also have the indirect effect of increasing agricultural production and thus bringing general prosperity to the public as a whole. Moreover it would remove the standing grievance of a large proportion of agricultural labourers. I would therefore take the view that the impugned Act is in the interests of the general public though the persons primarily benefited by it are one class of tenants known as Bhag-chasis. 17. The next question is whether those restrictions are 'reasonable'. The standard to be applied in testing whether a particular piece of legislation is reasonable is undoubtedly not very precise. But it was laid down by the Supreme Court in -- 'Chintamanrao v. The State of Madhya Pradesh', at p. 119 (I): The word 'reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. Therefore there is no general rule of law that the provisions of any Act which have limited retrospective effect and are made applicable to pending proceedings so as to affect vested rights are necessarily unreasonable. The question will turn in the end on what was the evil that the Legislature wanted to remedy and whether such a provision was necessary for the removal of that evil. 19. It has already been shown that the impugned Act was passed for removing two of the standing grievances of Bhag-chasis, namely, insecurity of tenure and high rate of rent. It. is true that Section 4 adversely affected pending proceedings initiated by the landlords for eviction of Bhag-chasis. But such a provision was necessary for the purpose of giving security of tenure to the Bhag-chasis; otherwise there was a danger of most of the Bhag-chasis of the Province being ejected during the appreciable interval between the date when the Government's intention to initiate legislation on the subject was known and the date of the passing of the impugned Act, thereby resulting in widespread unemployment amongst agricultural tenants with disastrous consequences to agricultural production and the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fundamentally different from the present case. There it was a question of completely depriving the landholder (corresponding to the landlords in this State) of his right to manage his lands. The Saurashtra High Court held relying on --'Brajnandan Sharma v. State of Bihar', (FB) (M) that no compelling reasons were given to justify such a drastic piece of legislation. This case may be a good authority for declaring invalid the provisions of any Act passed by the Legislature of Orissa in taking over the management of the estates of landlords. But it cannot invalidate a piece of tenancy legislation like the impugned Act which without in any way interfering with the right of management of property by the landlords, merely gives security of tenure to the sublessees of the landlords and reduces the produce rent payable by them. The impugned Act did not deprive the landlord of 'practically all his rights as a owner of property' so as to attract the principles laid down in the Saurashtra decision. 22. Hence judged from any point of view I am satisfied that the restrictions imposed by the impugned Act on the fundamental right of a citizen to hold landed property are reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orissa Tenancy Act). So far as proprietors are concerned the estates were settled with them for the realisation of Government revenue and their primary function was to collect rents from tenure-holders and raiyats. In fact in Bengal Regulation No. 1 of 1793 the Governor-General while cautioning the proprietors to conduct themselves with good faith and moderation towards their dependent Talukdars (corresponding to tenure-holders) and raiyats, expressly reserved to himself the right to enact such Regulations as may be necessary for the protection and welfare of raiyats and 'other cultivators of the soil', thereby making it clear that the proprietors were not cultivators of the soil (See Articles VI and VII of that Regulation). The other Regulations by which revenue settlements were made in North and South Orissa are modelled on Bengal Regulation No. 1 of 1793 and the same reasoning would apply with equal force. Thus though, some lands may remain in the actual possession of proprietors and tenure-holders and may be cultivated by them through, hired labourers or Bhag-chasis the fact remains that they are not primarily cultivators Or tillers, of the soil. On the other hand ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as pointed out by Das J. in -- (G): 'If there is a classification the Court will not hold it invalid merely because the law might have been extended to other persons who in some respects might resemble the class for which the law was made, for the Legislature is the best judge of the needs of a particular class and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist. I may in this connection refer to -- 'Bishnu Charan v. State of Orissa', AIR 1952 Ori 11 at p. 18 (P) where my Lord the Chief Justice relied on -- 'Middleton v. Taxas Power and Light Co.', (1918) 249 US 152 at p. 157 (Q) and --'Radick v. People of the State of New York', (1924) 264 U S 292 at p. 297 (R) for the view that: the Legislature is not bound in order to support the constitutional validity of its regulation to extend it to all cases which it might possibly reach. 26. It was then urged that there was a further distinction between raiyats whose total extent of land was more than 33 acres on the one hand and those raiyats whose total extent of land was less than 33 acres on the other. The Bhag-chasis under the former class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r-raiyat from the operation of Section 3, where the total land in the possession of that under-raiyat is less than 33 acres. It was urged that there was thus an unreasonable discrimination between a raiyat holding less than 33 acres, and an under-raiyat holding less than 33 acres, though the latter required greater protection than the former. This argument is, however, fallacious. Every under-raiyat must, 'ex hypothesi', hold lands under a raiyat. Hence if the total extent of the land of his immediate landlord i.e. a raiyat, is below 33 acres the Bhag-chasi of the under-raiyat in respect of that piece of land will be liable to eviction by virtue of Excen. (3) to Clause (g) of Section 2, irrespective of total extent of the land held by the under-raiyat whether under different raiyats or otherwise. Thus the liability to eviction of the Bhag-chasi of an under-raiyat depends not on the extent of the land in the possession of the under-raiyat, but on the extent of the land in the possession of his mediate landlord, namely, the raiyat. Hence there is no discrimination between a raiyat and under-raiyat arising out of the extent of the land in their respective possession. The discr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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