TMI Blog1960 (11) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... nts and have them settled n these lauds. Clause (7) of the Ijara provided that the amount of Butta rights for 14 years was to be. credited to the names of the original, tenants of Butta lands included in these 2300 acres. So far as the other lands were concerned, the grantee was permitted to have them converted into Butta lands whenever he applied to the State, the grantee was given the liberty to bring in new tenants as also shephards Rabaris, etc. He had also a right to recover certain taxes, fees and imposts in consideration of his paying a sum of Rs. 251/- per year from S.Y. 1991 onwards. The grantee was also given liberty to cultivate the lands or have them cultivated on share basis, partnership basis or Uddhad Vadia. In Clause (21) it was provided that the grant was to commence from S. Y. 1992. Clause (26) provided that after the expiry of the-period of the Ijara., viz. 30 years, the grantee was to deliver back to the State all the lands which were the subject-matter of the Ijara except those in respect of which he had purchased the Butta rights. Clause (29) provided as follows: If you fail to pay the dues, of the State then the State has a right to forfeit the land. You ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under the management of the State Government. The petitioner challenged that order by lodging a writ petition in the High Court of Saurashtra. The order was declared null and void by a decision of the Full Bench of that High Court which is reported in Jayantilal v. State of Saurashtra AIR 1952 Sau, 59. The lands which formed the village Juwanpur have since then been in the possession of the petitioner. 4. Thereafter, Bombay Act LXV of 1959 called an Act to abolish the Aghat tenure and the Ijaras prevailing in the Saurashtra area of the State of Bombay was passed. It received the assent of the President on November 3, 1959 and was brought into force on December 1, 1959. The preamble of the Act recites that : whereas certain lands in the Saurashtra area of the State of Bombay are held on a tenure known as Aghat tenure and whereas certain lands in the said area are held on Ijaras granted therefor, and whereas in the public interest it is expedient to abolish the said Aghat tenure and Ijaras and to provide for the consequential and incidental matters hereinafter appearing, it is hereby enacted..... Section 2(xiii) defines. 'Ijara' as meaning a lease granted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights and shall be liable to all the obligations in respect thereof as an occupant under the Code and the rules made thereunder. Section 6 of the Act thus provides that in the case of an Ijara land, if it or part of is Gharkhed land, the Ijardar on the abolition of the ijara is to be treated as an occupant of such land, being subject to the revenue assessment payable in respect thereto to the State Government in accordance with the provisions of the Land Revenue Code, as adapted in Saurashtra and the rules made thereunder. Sub-section (2) of the section then provides that on the abolition of the ijara, in case of land referred to in Sub-section (1) (b), of that section, a tenant in consideration of his acquiring the occupancy rights, shall be liable to pay if the Ijardar has acquired Butta hak in respect of such land, occupancy price equal to six times the full assessment of such land to the Ijardar, and in any other case, occupancy price equal to three times the full assessment of such land to the ijardar and an occupancy price equal to three times the full assessment to the State Government within the prescribed period in lump sum or in such annual instalments may be pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) that he has purchased Butta rights of 1300 acres and therefore those lands are no longer ijara lands to which the Act can apply and (2) that in any event, under the resolution dated March 1, 1950, he has become an occupant of these lands within the meaning of the Land Revenue Code as applied to Saurashtra. These lands have, therefore, ceased to be ijara lands and consequently the impugned Act cannot apply to these lands. 8. As regards the first ground, para 4 of the reply of the first opponent contains an express denial of the petitioner having purchased Butta rights in respect of the 1300 acres. That para however contains an admission that the petitioner has acquired Butta rights in respect of 80 acres and 18 Gunthas and that those lands have already been allotted to the petitioner as Gharkhed lands, i.e., lands for personal cultivation, in spite of his allegation that he had purchased Butta rights in respect of these 1300 acres, the petitioner has not adduced any proof, regarding his purchase of Butta haks. If the petitioner had purchased these rights as alleged by him, he was at liberty to establish that fact in a proper proceeding. As we have pointed out, Section 3 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lands and, therefore, it would be Impossible to say that the Act when it Seeks to benefit only such a limited number of persons is for a public purpose as contemplated by Article 31 of the Constitution. The learned counsel contended that the petitioner has a fundamental right under Articles 19 and 31 of the Constitution which he cannot be deprived of unless such deprivation takes place in accordance with the provisions of Article 31(2). He argued that the question whether there is a public purpose for which the impugned statute is enacted is a justiciable issue in which the High Court can go into and determine. He relied upon the decision of the Supreme Court in State of Bihar v. Sir Kameshwarsingh, 1952 SCR 889 : (AIR 1952 SC 252), where the provisions contained in Section 4 (b) and Section 23(1) of the Bihar Land Reforms Act, XXX of 1950, were struck down as unconstitutional. In the course of their judgment, their Lordships Mahajan J. (as he then was) and Chandrasekhara Aiyar J. observed that: the scope of Article 33(4) is limited to the express provisions of Article 31(2) and though 'the Courts cannot examine the extent or adequacy of the provisions of compensation c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court in Thakur Amar Singnji v. State of Rajasthan, 1955-2 SCR 303 : ((S) AIR 1955 SC 504), where the Rajasthan Land Reform and Resumption of Jagirs Act (Rajasthan Act VI of 1952) was challenged as invalid on a number of grounds. Amongst the grounds relied upon for challenging the Act, it was contended thai the Act was ul[ra vires the powers of the State inasmuch as it did not provide for adequate compensation, nor was there any public purpose involved in it and, therefore, it contravened Article 31(2) and that as the Act was discriminatory it contravened Article 14 also. It was also argued that the Act was no, saved by Article 31A because the lands resumed were neither estates nor jagirs, as defined in the Act and, therefore, the notifications under Section 21 of the Act in so far as they related to them were illegal so far as the contention as to resumption was concerned, it was held that such resumption was not in enforcement of the rights which the Rulers had to resume jagirs in accordance with the terms of the grant or the law applicable to it, but in exercise of the sovereign rights of eminent domain possessed by the State, and, therefore, the taking of the properties fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss fee, charge or any hak, legally subsisting on the said day shall be deemed to have been extinguished. It is obvious that what is sought to be extinguished under this sub-clause are the rights of the Sjardar legally subsisting on the appointed day including the right to recover rent or assessment of land or to recover or levy any kind of tax. The words, legally subsisting on the said day in this sub-clause have reference to the words, all rights of the ijardar under the Ijara'', a right to recover arrears, of rent is not strictly speaking a right under the ijara, for once the rent or assessment becomes due and payable, it ceases to be something recoverable under a right o1 an ijardar as such but becomes a debt in respect of which the relations between the tenant and the ijardar become those of a debtor and a creditor. Section 4(1)(c)(ii), therefore, does not refer to the right of an ijardar to collect such arrears of rent. Section 4, therefore, cannot be challenged cm the footing that it seeks to extinguish a right of an ijardar to recover arrears of rent or that this provision therefore cannot be said to have any public purpose to support it. 12. The next question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to leave the land to those who personally cultivate it and to do away with its exploitation by those who do not cultivate it but wish to make profit by having it cultivated and developed by others. As observed in 1952 SCR 889 : (MB 1952 SG 252), the phrase public purpose has to be construed according to the spirit of the times in which a particular legislation is enacted and so construed, acquisition of estates for the purpose of preventing concentration of huge blocks of land in the hands of a few individuals or to do away with intermediaries is for a public purpose. 13. According to the petitioner under the ijara granted to him he held, the village of Juwanpur consisting of as much as 2300 acres of land. As we have observed the Ijara gave Mm rights to settle tenants thereupon, and to have the land exploited by cultivation or otherwise. It gave the Ijardar the right to exact rent, even certain taxes and other imposts during the period of the grant in consideration of his paying a lump sum to the Ruler annually. Since all lands vest in the State, there can be no doubt that the petitioner was an intermediary between the State and the cultivator except in respect of land which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural Lands (Amendment) Act, 1956- the Supreme Court in Sri Ram Ram Narain Medh' v. State of Bombay, 6l Bom LR 811 : (AIR 1959 SC 459) negatived the contention that the Bombay Land Revenue Code was not a statute relating to tenures and that, therefore, an 'estate' within the meaning of Article 31A(2) would not be the same as defined in the Code. Dealing with the contention Bhaawati, J., observed as follows: It 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 10 Section 3(16) of the Code to mean the holder in actual possession of unaltenated lands other than a tenant provided that where the holder m actual possession is a tenant, the landholder or superior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abolish these rights which otherwise would have remained in the Ijardar until the expiry of the Ijara. The Act thus seeks to extinguish his rights during the unexpired period of the Ijara. Looking to the preamble and the pith and substance of the Act, there is no doubt that it seeks to acquire for the State those rights from the Ijardar and, therefore, provides for compensation or at the most extinguishes those rights for the loss of which the Ijardar is to be paid compensation according to the manner and machinery provided in the Act. Deprivation on the Other hand would be by an aqt of State which does not ordinarily contemplate compensation. 17. Strong reliance was placed by Mr. Modi on a recent decision of the Supreme Court in Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080, where the Supreme Court had again to consider the import of the word 'estate' as used in Article 31A(2). It is there observed that the definition of 'estate' refers to an existing law relating to land tenures in a particular area indicating thereby that the Article is concerned only with the land tenure described as an estate The inclusive definiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t decision be said to have laid down anything different from the earlier decision reported in 61 Bom LR 811 : (AIR 1959 SC 459). 18. It was conceded by Mr. Modi that if this case fell within Article 31A, the petitioner would be barred from contending that it was unconstitutional on 'any of the grounds covered by Articles 14, 19 and 31. But then he argued that the case fell under Article 31(1) and, therefore, the taking away of the Petitioner's rights must be established by the State as being consistent with the Article 19(5). Mr. Modi relied upon the observations, in AIR 1960 SC 1080 that, under Article 31(1) a person cannot be deprived of his property save by authority of law. The law must be a valid law. Under Article 13(2) a law depriving a person of his property cannot take away or abridge the right conferred by part III of the Constitution. Thus the law depriving a person of his property will be invalid if it infringes Article 19(1)(f) unless it imposes a reasonable restriction on the person's fundamental right. The State can establish that a law, though it purports to deprive a person of his fundamental right, under certain circumstances amounts to a reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
