# 4rjun Prarad v. Sha•lital SiuJllkarl•I Shah

- **Citation:** [1962] Supp. 2 S.C.R. 411
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, N. Rajagopala Ayyangar, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/4rjun-prarad-v-sha-lital-siujllkarl-i-shah-2617
- **Pages:** 67

## Headnote

Land Tenure, Abolition of-Amendment of enactment-If
creates a new cla.!s of permanenl. tenanl8-0onslitutional
validity-If infringes fundamental rights of erstwhile tenure·
holdera--Bombay Land Tenure Abol-ition Laws (Amendment)
Act, 1958 (Bom. LYII of 1958), ss. 3, 4, 6-0on•titution of
India, Arts. U, 19 (1)(/), 31, 31-A.
The petitioners, who were tenure-holders, challenged
the constitutional validity of the Bombay Land Tenure Abolition Laws (Amendment) Act, 1958 and in.particular ss. 3 and
4 read withs. 6 of that Act, as infringing their fundamental
rights guaranteed by Arts. 14, 19 and 31 of the Constitution.
Their case in brief was that those provisions by making certain
non-permanent tenants permanent as from the commencement
of the Bombay Taluqdari Tenure Abolition Act, 1949,
enabled them to acquire occupancy right by payment of six
times the assessment or the rent under s. 5A of that Act
instead of 20 timea to 200 times the as>essment under s. 32H
of ~e Bombay Tenancy and Agricultural Lands Act, 1948,
1951
.4rjun Prarad
v.
Sha•lital SiuJllkarl•I
Shah
1961
Denmber 32.
IHI
Mo},o,ana 8/ari
J oywntJ iltglej i
R.-lriogJiii etc.
v.
T"' Slot. of Gufrat
412 SUPREME COU.KT REPORTS [1962] St:Pl'.
a' amended in
1956, and thereby substantially deprived the
petitioners of the rifhts acquired by them on the 'tillers' day,
April 1, 1957, when they ceased to be tenur<-holders. It was
urged that the
impugned Act was a piece of colourable legislation in that it had confiscated, under the guise of defining a
permanent tenant or changing a rule of evidence, a large part
of rhc purchase price
the
pl"'tit10 tt>rs were cnti1lcd to from
their tenants, and
that the
Stat : Legislature had not the
competence to enact it as it was not saved by Art. 31A of the
C orutitution.
Held, (Sarkar and
Mudholkar, JJ., dissenting),
that
ss. 3, 4 and 6 of the Bombay Land Tenure Abolition Laws
(Amendment) Act, 1958, in
so
far as they
deemed some
tenants as permanent tenants in possession of Taluqudari land,
were unconstitutional
and void.
Under the guise of changing the definition of a permanent trnant and changing a rule
of evidence, they really reduced the purchase price that the
petitioners "'·ere
entitled
to receive under s. 32H of the
Bombay Tenancy
and Agriculrural
L•n<ls Act, 1948, as
amended in 1956, from some of their tenants on the "tillers'
day."
Per Sinha, C. J., and Das, J .-There can be no doubt
that s. 4 of the impugned Act, properly construed, created a
new class of permanent
tenants not contemplated by s. 83 of
the Bombay Land Revenue Code, 1879, and not in existence
on the "tillers' day", and the combined effect of ss. 3, 4 and 6
of the impugned Act was that
if the tenμre holder did not
m•ke an appli:ation under s. 6 w,thin six months from the
commencement of the impugned Act for a declaration that a
tenant under him waJ not a permanent tenant, the name of
the tenant would be
recorded as a permanent tenant if he
fulfilled the conditions lai<l down by s. 4 and thereafter he
would be dremed under s. 3 to be a permanent tenant and
under s. 4 all the provisions of the Taluqd;,ri Abolition Act
1949, would apply to him. The result of this combined effect
would be to deprive the tenure-holder of any real opportunity
of contesting the claims of the tenant and deprive him of
the purchase prfce prescribed bys. 32H of the Bombay,
Tenancy and Agricultural Lands Act, 1948.
The right of the petitioners to the said purchase pr;ce from
those of their tenants who were non-permanent on April J,
1957, was a right ofpropertf guaranteed by Art. 19 (I) (f)
and the impugned sections adversely afl'cctrd that right with
retrospe<:tive effect Section 6, tested in the light of Art. 1!1(5),
could not
be
said
to impose a reasonable re~t• iction in the
intcr<st of the general public.
2 S.C.R.
SUPREME COURT REPORTS
413
Bombay llyeing and Manufacturing Oo. Ltd. v. State of
Bombay, [1958] S.C.R. 1122, applied.
Sri Ram Ram Narain Medhi v. The State of Bombay.
(J959] Supp. 1 S.

## Text

_Characters 0–39,840 of 133,456. This is a partial read: ask again with offset=39840 for what follows._

2 S.C.R.
SUPREME COURT REPORTS
411
for attendance of the company "in person", but
apart from that we wish to point out that the
resolution made by the two companies do
not
appear to us to delegate the powers of the directors
to Arjun Prasad.
The conclusion of the High Court that the
votes cast by Arjun Prasad on behalf of the two
companies.,
viz., Bhandani
Brothers and the
Hindustan Coal Company, were not valid votes is,
in our opinion, correct.
The appeals are accordingly dismis~ed with
costs. One set of hearing fee.
Appeals d;ismisse,d.
MAHARANA SHRI JAYVANTSINGHJI
RANMALSINGHJI
ETC.
v.
THE STATE OF GUJRAT
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,
N. RAJAGOPALA AYYANGAR and
J. R. MUDHOLKAR, JJ.)
Land Tenure, Abolition of-Amendment of enactment-If
creates a new cla.!s of permanenl. tenanl8-0onslitutional
validity-If infringes fundamental rights of erstwhile tenure·
holdera--Bombay Land Tenure Abol-ition Laws (Amendment)
Act, 1958 (Bom. LYII of 1958), ss. 3, 4, 6-0on•titution of
India, Arts. U, 19 (1)(/), 31, 31-A.
The petitioners, who were tenure-holders, challenged
the constitutional validity of the Bombay Land Tenure Abolition Laws (Amendment) Act, 1958 and in.particular ss. 3 and
4 read withs. 6 of that Act, as infringing their fundamental
rights guaranteed by Arts. 14, 19 and 31 of the Constitution.
Their case in brief was that those provisions by making certain
non-permanent tenants permanent as from the commencement
of the Bombay Taluqdari Tenure Abolition Act, 1949,
enabled them to acquire occupancy right by payment of six
times the assessment or the rent under s. 5A of that Act
instead of 20 timea to 200 times the as>essment under s. 32H
of ~e Bombay Tenancy and Agricultural Lands Act, 1948,
1951
.4rjun Prarad
v.
Sha•lital SiuJllkarl•I
Shah
1961
Denmber 32.
IHI
Mo},o,ana 8/ari
J oywntJ iltglej i
R.-lriogJiii etc.
v.
T"' Slot. of Gufrat
412 SUPREME COU.KT REPORTS [1962] St:Pl'.
a' amended in
1956, and thereby substantially deprived the
petitioners of the rifhts acquired by them on the 'tillers' day,
April 1, 1957, when they ceased to be tenur<-holders. It was
urged that the
impugned Act was a piece of colourable legislation in that it had confiscated, under the guise of defining a
permanent tenant or changing a rule of evidence, a large part
of rhc purchase price
the
pl"'tit10 tt>rs were cnti1lcd to from
their tenants, and
that the
Stat : Legislature had not the
competence to enact it as it was not saved by Art. 31A of the
C orutitution.
Held, (Sarkar and
Mudholkar, JJ., dissenting),
that
ss. 3, 4 and 6 of the Bombay Land Tenure Abolition Laws
(Amendment) Act, 1958, in
so
far as they
deemed some
tenants as permanent tenants in possession of Taluqudari land,
were unconstitutional
and void.
Under the guise of changing the definition of a permanent trnant and changing a rule
of evidence, they really reduced the purchase price that the
petitioners "'·ere
entitled
to receive under s. 32H of the
Bombay Tenancy
and Agriculrural
L•n<ls Act, 1948, as
amended in 1956, from some of their tenants on the "tillers'
day."
Per Sinha, C. J., and Das, J .-There can be no doubt
that s. 4 of the impugned Act, properly construed, created a
new class of permanent
tenants not contemplated by s. 83 of
the Bombay Land Revenue Code, 1879, and not in existence
on the "tillers' day", and the combined effect of ss. 3, 4 and 6
of the impugned Act was that
if the tenμre holder did not
m•ke an appli:ation under s. 6 w,thin six months from the
commencement of the impugned Act for a declaration that a
tenant under him waJ not a permanent tenant, the name of
the tenant would be
recorded as a permanent tenant if he
fulfilled the conditions lai<l down by s. 4 and thereafter he
would be dremed under s. 3 to be a permanent tenant and
under s. 4 all the provisions of the Taluqd;,ri Abolition Act
1949, would apply to him. The result of this combined effect
would be to deprive the tenure-holder of any real opportunity
of contesting the claims of the tenant and deprive him of
the purchase prfce prescribed bys. 32H of the Bombay,
Tenancy and Agricultural Lands Act, 1948.
The right of the petitioners to the said purchase pr;ce from
those of their tenants who were non-permanent on April J,
1957, was a right ofpropertf guaranteed by Art. 19 (I) (f)
and the impugned sections adversely afl'cctrd that right with
retrospe<:tive effect Section 6, tested in the light of Art. 1!1(5),
could not
be
said
to impose a reasonable re~t• iction in the
intcr<st of the general public.
2 S.C.R.
SUPREME COURT REPORTS
413
Bombay llyeing and Manufacturing Oo. Ltd. v. State of
Bombay, [1958] S.C.R. 1122, applied.
Sri Ram Ram Narain Medhi v. The State of Bombay.
(J959] Supp. 1 S.C.R. 489, referred to.
Article 31A of the Constitution had no application:
The relation between the tenure-holders and the tenants had
changed from that of landlord and tenant to that of creditor
and debtor on April 1, 1957, and the impugned Act which
affected such rights, did not come within the protection of
that Article.
In view of the true scope and effect of ss. 3, 4 and 6, the
impugned Act could not fall within any entry of List II or
List III of the s~venth Schedule to the Constitution anp was a
piece of colourable legislation.
K. 0. Gajapati Narayan Deo v. Stale of Orissa [1954]
S.O.R. I, referred to.
Per Sarkar and Mudholkar, JJ.-Section 4 of the iJnpugned
Act did not expand the definition of a permanent tenant
and
did not take away any property that was vested in the landlord on the "tillers day". Nor did it confer any new property
on the tenant. It only applied to and rescued a permanent
tenant faced with the task of proving the nature of his tenancy, by raising"
~presumption of permanency in his favour.
If in fact his tenancy was not permanent and had been
extinguished by law but he was tentatively recQrded as permanent, the landlord could rebut the presumption in a
proceeding under s. 6 (1) by producing the documents in ·his
possession or otherwise by showing that the tenancy was not
in fact permanent and, therefore, had been extinguished by
s. 32(1) of the Bombay Tenancy and Agricultural Lands Act,
1948, and claim compensation or the purchase money under
s. 32H(l)(II) of the Act, that right of his not having been
affected in any way by the impugned Act. If he failed, he
would itet the purchase price according to s. 5A of the Bombay Taluqdari Tenure Abolition Act, 1949, chich would not
be and wa. not challenged.
Dhirubha De11Uingh Gohil v. State of Bombay, (1955]
I S.O.R. 69!, referred to.
The impugned Act d.ealt with matters arising out of the
relationship between landlord and tenant.
Its provisions
were not intended to apply where such relationohip did not
subsist.
The Act was, therefore, within the competence of
the Legislature under entry 18 of List II of the Seventh
Schedule to the Constitution and was thus not a piece of
colourable legislation.
1961
Mahara1'4 Shri
J ayvantsinghii
Ramnalsinghji etc,
v.
Tiu State of Gujrat
1P8.
Jlalunona Sh,i
Jap""'si111hji
RnmalJinthji tic.
v,
77w 81ot1 ojGujmt
414 SUPREME COURT REPORTS [1962] SUPP.
There was, therrfore, no infringement of Art. 31(1} and
the Act w33 within the protection of Art. 3 lA of the Constitution and its Constitutional Validity could not be challen·
ged under An. 14 and 19(l)(f) of the Constitution.
Held, further, that the distinction made between tenure
villages and non-tenure ones was a classification based on the
extent of availability of the material for raising the inference
or the presumption and such cl83•ification had a reasonable
ncxu< with the object sought to be achieved by the Act.
Per Ayyangar, J.-There was no basis for the argument
that s. 4 of the impugned Act mrrely intended to provide a
rule of evidence for determining who was a permanent tenant
under '· 83 of the Bombay Land Revenue Code, IBn, and
did ncit extend the cate~ory of such tenants.
It enacts a
po•itive rule of law by which a penon in poo11C11ion of holding
of a tenure-land must be "deemed" t<1 be a permanent tenant
on fulfilment of the three •pccified conditioru. This is evident
from the provisions of s. 6( 1) under which every person who
satisfied the definition of a permanent tenant under s. 4
wao entilled automatically and without applying for to be
entered a• a permanent tenant in the record of rights by the
Mamlatdar unless the tenure-holder filed an objection in
writing. Obviously such objection could only be on grounds
open to him under s. 4.
Section 4(b) and s.6(1) of the
impugned Act had
to be read together a• forming an
integrated whole.
The entire object and
purpose of the
impugned enactment was not, therefore, to enact a rule of
evidence for determining who were pcrmancat tenants under
the pre-existing law but to define and create a new class of
permanent tenants who satisfied.s. 4 of the Act.
ORIGINAL JURISDICTION : Petition Noe. 120 of
58 etc.
Petition un<ler Art. 32 of the Constitution of
India for enforcement of Fundamental Rights.
G. S. Pa/Mk, J.B. Dadadianji, S.N. Andky,
Rameshwar Nath and P.L. Vohra, f,·r the pet,itionen
(in l'ctns. 120 and 147of1958).
8. T. Duai, J.B. Dadaclia"lji, 8.N. Afldley,
Rameahwar Nath and P.L. Vohra, for the petitioner
(in Petn. No. 149/58).
J.B. Dadachanji, S.N. Andley, Ramtahu:ar Nath
and P.L. Vohra, for the petitioners (in Petns. Noa.
148 and 150/58).
'L,
II
' ....
2 S.C.R.
SUPREME COURT REPORTS
415
O.K. Daphl;ary,
Solicitor-General
of India,
N.P. Nathwani, R.H. Dhebar and T .• M. Sen, for the
respondents.
N.P. Nathwani and J. N. Shroff for re~pond
ents Nos. 5 and 6 (in Petns. Nos. 120, 148 and 156
of 1958).
1961. December 22.-The Judgment of Sinha,
C. J., and Das, J., was delivered by Dd.B, J., the
judgment of Sarkar and Mudholkar JJ., was delivered by Mudholkar, J., and Ayyangar, J., delivered
a separate judgment.
1961
Maharona ~hri
Jayranto;, ghji
Ranma/singhji etc.
y,
Tt.. St•te of Guj.at
S. K. Das, J,-In these 13 writ petitions arises
Dos J
a common question of law, namely, the constitutional validity of some of the provisions of the
Bombay Land Tenure Abolition Laws (Amendment)
Act, 1958 (Bombay Act LVII of 1958) and in particular, of the provisions contained in ss. 3 and 4
read with s. 6 thereof. We shall hereinafter refer
to this Act as the impugned Act, 1958.
Put very briefly, the case of the petitioners is
that as a result of the provisions of the impugned
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 insten.d of at least the minimum of twenty
times the assesament, the rights of an "occupant"'
within the meaning of s. 5A of the Taluqdari Abolition Act, 1949. This resuTh, it is contended, has
substantially deprived the _petitioners of the rights
which they acquired on tillers' day (April l, 1957)
by relj.Bon of the provisions contained in s. 32 and
other relevant sections of the Bombay Tenancy and
Agricultural Lands Act, 19!8 (Bombay Act LXVII
of Hl48) as amended from time to time. It is
1111
MoMraa Sltri
,/ • .,ronti U.g~;i
B~Win1h1i tic.
Y,
71" St.It of Gujrfl
Das .i.
416 SUPREME OOURT REPORTS [1962] SUPP.
stated that this deprivation has resulted in the
violation of certain fundamental rights of the peti·
tioners, such as those guaranteed under Arts. 14, rn
and :• l of the Constitution. On behalf of the petitioners it has also been contended that ape.rt from
the question of violation of thdr fundamental
rights, the impugned Act, 1958 is a piece of colourable legislation in the sense that under the guise of
changing a rule of evidence, it has in effect taken
away thu petitioners' property witl)__out payment of
compensation and given it to another; it is, therefore, a piece of legislation which does not come
within any entry of the two legislative lists under
which the State Legislature was competent to make
laws.
To appreciate the points urged in support of
the petitions which have all been heard together,
it will be necc88&ty to consider the effect and inter-;
action of some of the provisions of four principal
Acts, namely, (l) the Bombay Land Revenue Code
1879 (Bombay Act V of 1879), hP.reinafter referred
to as the Revenue Code; (2) the Bombay Tenancy
and Agricultural Lands Act, 1948, as amended from
time·to time, hereinafter called the Tenancy Act,
1948; (3) the Taluqdari Abolition Ac·t I 949; and (4)
the impugned Act, 1958. We shall presently rPad
the relevant proviliions of these Acts. But before
we do so, it is neoessarv to state some fact!'. The
facts are similar, though not the same, in all the
petitions. It will be sufficient to state the facts of
one of the petitions (Petition no. 120 of 1958) in
detail in order to focus attention on the main question of Jaw whi.ch is i.he same in all these petitions
and which we have indicated briefly in the preceding paragraph.
The petitioners a.re all ex-Taluqdars. In
Petition No. 120 of 1958 the petitioner was a.
Taluqdar of two estates known &11 Sanand und Koth
in the Ahmeda.bad district of the then State of
2 S.C.R.
SUPREME COURT REPORTS
417
Bombay and now of the State of Gujarat. These
two estates comprised 24 Taluqdari village8. The
petitioner was the absolute proprietor of all the
lands comprised in the two estates, subject to. payment of land revenue to the State Government.
Under the petitioner there were tenants-it is
stated, some permanent and some non-permanent.
In theyear 1949, the Bombay Provincial Legislature enacted the Taluqdari Abolition Act, 1949
which came into force Qn August 15, 1950. As a
result of the provisions of that Act, the Taluqdari
tenure as such was abolished and cert11.in properties,
such as, wells, tanks, waste
lands, uncultivated
lands, etc., were · acquired· by the State; and the
Taluqdar was converted into a mere "occupant" as
defined in the Revenue Code a.nd was to pay land
revenue in accordance with the provisions of that
Code. Section 3 (16) of the Revenue Code defined
an "occupant" 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 cf 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 occup1nt 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 a "perma·
nent tenant". Section 16 of the TaluqdariAbolition
1961
Mahar411a Sisti
J ayvantsinghji
RanmalsingAji eto.
v.
T/,, St•te ofGujaro
DasJ.
1961
M aharand Shri
J ayvantsinghji
fiamnal.singhJi etc.
v.
17i1 State of Gujarat
Das J,
418 SUPREME COURT REPORTS [1962] SUPP.
Act, 1949 made the provisions of the Revenue Code
applicable thereto and an attempt was made to
harmonize the provisions of the Taluqdari Abolition
Aet, 1949 with the provisions of the Revenue Code;
therefore, for understanding what is a "permanent
tenant" we have to go to the Revc·nue Code, s. 83
whereof, so far as it is relevant, rea(ls as follows :
"83.
x
x
x
x
x
And where by reason of the antiquity of
a tenancy, no satisfactory evidence of its
commencement is forthcoming, and there is
not any such evidence of the period of its
intended duration, if any, a.greed upon between the landlord and tenant, or those under
whom they respectivP!y claim title, or any
usage of the locality as to duration of such
tenants, it shall, as against the immediate
land lord of the tenant, be presumed to be coextensive with the duration of the tenure of
such landlord and of those who derive title
under him.
And where there is no satisfactory evi·
dance of the capacity in which a person in
possession of land in respect of which he
renders. service or pays rent to the landlord
received, holds or retains possession of the
same it shall be presumed that ho is in possession as tcnan t.
x
x
x
x"
It will be noticed that the expression "permanent
tenant" does not occnr in the section. 'Vhat is
stated therein is that in certain circnm;,iitnccs the
duration of the knancv nf a tPnant •ts ac;ainst his
immedia.tc landlorrl s.hn,ll be presumed' to he CO·
extensive with the durntiop of tho tennrc of sueh
landlord.
The two circumstances montionerl :ire.
(l) whero by re,tson of tho antiquity of the tenancy
nn Ratlsfootorv Pviclence of its commencement is
or~hcomin", n~d (~} wh.ero there is no such edclonce
2 S.C.R.
SUPREME COURT REPORTS
419
of the perhd of its intended duration, if any,
agreed upon between the landlord and tenant, or
any usage of the locality as to duration of the
tenancy. Some time later, by Bombay Act, Xill
of 1956, the definition of a'· permanent tenant" was
inserted in s. 2(IOA) of the Tenancy Act, 1948.
That definition was in these terms :
" 'permanent tenant' means a person-
(a) who immediately before the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955 (hereinafter called 'the Amending Act, 1955')-
(i) holds land as mulgenidar
or
mirasdar; or
(ii) by custom,
agrePment, or the
decree or order of a Court holds the land
on lease permanently ; or
(b) the commencerr.ent or duration of
whose tenancy cannot satisfactorily be proved
by reason of antiquity;
and includes a tenant whose name or the
name of whose predecessor-in-title has been entered in the reco.rd 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 87 A of the Tenancy Act, 19~8, which was
also inserted by Bombay Act XIII of 1956 by
s. 4 7 thereof, said :
"Nothing . in this Act, shall affect the
provisions of any of the L!!.nd 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 Ian d held by him."
1961
M aharana SAri
J a)f'anlsinfhj i
Ranmalsingf!ii elo,
••
The Stale of Grgaf'ld
DasJ.
lPf 1
.llohm..,a Sltti
.J .S1f'011lrinthft
Batunal1in.i:lij1 tie.
v.
Tit< Slal1 of Oujarol
Das J.
420 SUPREME OOURT REPORTS (1962) SUPP.
In Schedule III to the Tenancy Act, 1948, was
given a list of Land Tenures Abolition Acta including the Taluqdari Abolition Act, 1949. Therefore,
the effect of s. 87 A aforesaid was that nothing in
the Tena.ncy Act, 1948, affectod the provisions of
the Taluqdari Abolition Act, 1949, in so far as tho
provisions in s. 5A of the Taluqdari. A holition Act,
1949, conferred the right of an occupant in favour
of a permanent tenant in posscs8ion of any taluqdari land on payment of tho sums mentioned
thorein.
The arguments before us have proceeded
on the footing that before the comin~ into force of
the impugned Act, 1958, the status of a permanent
tenant in possession of any taluqdari land was to be
determined by the provisions in s. 83 of the
Revenue Code; in other words, hy the two circumstances mentioned in that section.
\Vhat was the position with rPgard to tenants
who were not permanent? No right was conferred
on thf'm bys. liA of the Taluqrlari Abolition Act,
1949, which section was inserted in that Act in I 955
by Bombay Act I of 1955. The rights of these
non-permanent tenants were governed by the
Tenancy Act, 1948, which underwent some funda.
mental changes in 1956 (see Bombay Act XIII of
1956). The cha.ngc8 relevant for our purpose were
contained in s, :l2 and some of the succeeding
sections. The effect of these RPCtions was considered by this Court in Sri Ram Ram .Varain Jtedhi
v. The State of Bombay (l). After 8ummarising the
proviHions contained in ss. 32 to 3:!R, this Court
said:
"The title of the landlord to thl' land
passes immediately to th~ tl'nant on the
tillers' day and there is a c11mplcte<l purchase
or sale thereof as between the landlord and the
tenant. The tenant iH no doubt given a locus
penitentiae an<l an option of deelaring whether
(1)
[1959] Supp. I S.C.R.4S9, SIB, 519 .
..
2 S.C.R.
SUPREME COURT REPORTS
421
he is or is not willing to purchase the land
hdd by him as a tenant. If he fails to appear
or makes a statement that he is not willing
to purchase the land, the Tribunal shall by an
orck·r in writing declare that such tenant is
not willing to purchase the land and that the
purchase is ineffective. It is only by such a
declaration by the Tribunal that the purchase
becomes ineffective. If no such declaration
is made by the Tribunal the purchase would
stand as statutorily effected on the tillers'
day and will continue to be operativ~, 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 determind 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 tillers' 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 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."
1B61
Afaharona Shti
J O,Yvantsinehji
Ranmalainghji tie.
v,
Thi Stot• of Guj.,.q1
DasJ.
1161
M """'""• S liri
J~ltji
R-uin:hji u,.
v.
TM Si.u of Gujarat
DasJ.
422 SUPREME COURT REPORTS (1962] SUPP.
The tillern' day referred to above was the first day
of April, 1957. The argument on behalf of the
petitioners is that according to the deoi,ion of this
Court, tho titlo of the petitioners to lands hclcl by
tenants who were entitled to the benefit of so. 32 to
.32R. pa,ssed 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 tenant.a 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 section. But. non·permnnent
tenants in possession of t&luqdari lands became purcha.sers of their lands on the tillers' day with an
obligation to pay the purchase price mentioned in
s. 32H of the Tenancy Act, !948. Section 32H, in
so far as it boars upon non-permanent tenants, says :
"32H. (I) Subject to the additions and
<leduction8 as provided in sub-sections ( lA)
an<l (I B), the purchase price shall be reckoned
as follows, namely :-
(i) in the case of a permanent tenant
x
x
x
(ii) in the case of other tenants, the
purchase price shall be the aggregate of
the following amounts, that is to say,-
(a) such amounts as the Tribunal may
determine not being less than 20 times the
assessment and not more than 200 times the
assessment;
(b) the value of any structures, wells, and
embankment constructed and other permanent
fixtures made and trees planted by the landlord on the land ;
(c) the amount of thP arreas of rent, if
any lawfully due on the tillers' day or the
postponed date ;
2 S.C.R. SUPREME COURT REPORTS
423
· (d) the amounts, if any, paid by or recovered from the landlord as land revenue and
other cesses referred to in clauses (a), (b), (c)
and (d) of sub-section (1) of section IOA, in
the event of the failure on the part of the
tenant to pay the same.
Explanation 1.-
*
*
*
Explanation 2.-
*
*
*
(IA) Where
a tenant to whom subsections (I) and (2) of section JOA do not
apply,· has, after the commencement of the
Bombay Tenancy
and agricultural Lands
(Amendment) Act, 1955, paid in respect of
the land held by him ~s tenant land revenue
and other cesses referred to in sub-section
( 1) of that section, on account of the failure
of the landlord to pay the same, a sum equal
to the total amount so paid by the tenant
until the date of the determination of the
purchase price shall be deducted from the
aggregate of the amounts determined under
sub-section (I).
(IB) (a) On the amount arrived at in
accordance with the provisions of sub-sections
(1) and (IA) there shall be calculated interest
at 4:, per cent, per annum for the period
between the date on which the tenant i8
deemed to have purchased the land under
section 32 and the date of the d<>termination
of the purchase price.
(b) (i) The amount of interest so calculated shall be added to, and
(ii) the amount of rent, if any, paid by
the tenant to the landlord and the value of
any products of trees planted by the landlord if such products are removed by the
landlord during the said period shall be deducted from, the &mount so arrived at.
IHl
Makarana Shri.
J aytJant.singhji
Ronmalsinghji etc.
v.
The Stat, of Gujarat _
Das J.
IHI
.11•- 84ri
Jlf1H"Jli11(4i& '"
• ....,.,,"ii tic.
v.
·n. 81a1uj Gwjrut
Das J.
424 SUPREME OOURT REPORTS [ 1962) SUPP.
(2) The State Government may by ·general or special order, fix diffen'nt minima and
maxima for tho purpose of sub-clause (a) of
clause (ii) of sub·section (1) in respect of any
kind of land hold 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 secticn 63A."
The differenoe in the purchase price mentioned in
s. 5A of the Taluqdari;Abolition Act, 19411, and the
purchaao prico mentioned in s. 32H of the Tenancy
Act, l 948, 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 mmima and maxima are liable tO reduction
in the case of land held by tenants in any backward area.
Now, the main grievance of the pttitioners is
this. So for as non-permanent tenants were conce·
rned, the title of the petitioners to their lands passed
on April I, 1957, to the tenants and the petitioners
ceased to be
l~ndlords.
All that they became
etitled to on that day was the purchase price mentioned in s. S2H. By one stroke of the pen as
it were, the impugned Act, 1958, made 11lmost all
non-permanPnt tanants into permanent tenants
and thereby deprived the petitionerB of the higher
purchase price which they were entitled to got
under s. 32H and the aucoeedinf eeotiona of the
Tenanoy Aot. 19i8. In petition No. 120 of 1968
the petitionm has stated th&t he would loee about
Rs. 14 laos as a reeult of the provisiona of the
impugned Act, 1968.
We may now read some of the provisions of \he
impugned Aot, 1958. The Aot is entWed "an Act
i
2 S.C.R.
SUPREME COURT REPORTS
425
further to define permanent tenants, inferior holders
aud permanent holders for the purposes. of certain
Land Tenure Abolition laws and to provide for certain other mi.tters." In view of the argument advanced before us on behalf of the respondents that the
impugned Act, 1958 merely changes a rule of evidence, it is worthly of note that the long title itself
states that the Act is an Act further to define pc1manent tenants, Section 2 of the Act is the interpretation
section and the expression 'Land Tenure Abolition
law' means in relation to a permanPnt tenant, Acts
specified in l'art I of the Schedule. The Taluqdari
Abolition Act, l!I±!) is one of the Am,s mentioned
in Part I of the t:lchedule.
The expression 'tcnureholder' means inter alia a taluqdar and 'tenureland' means inter alia taluqdari land
Sections 3,
4 are U aud important for our purpose and should
be read in full.
" 3.
A person shall, within the meaning
of the relevant Land Tenure Abolition law, be
det'med to be an inferior holder, a permanent
ho-Ider or. as the C<Lse may be, a permanent
tenant, on the date of the abolition of the
relevant land tenure, if his name has been
reoor<led in the record of rights or other public
or revenue record as an inferior holder, permanent holder or permanent tenant in respect
of any tenure-land-
(a) on the date of the abolition of the
relevant land tenure, or
(b) in pursuance of orders issu!ld during
the course of any proceedings under the
relevant Land Tenure Abolition law or, as
the ca.se may be, the Bombey Land Revenue
Code, 1879-
(i) before the commencement of this
Act, or
1941
AJ aharana Shri
J ayvaritsinghJi
(Ra~malsinglrji etc.
v,
'Tht Stute of Gujaf'at
Das J.
11111
Molw ... Sltri
J 41l*· tMzAii
s...lsiltghji '"·
v.
71., Stal< of Gujar•I
D., J.
426 SUPREME COURT REPORTIS (1962] SUP.I:'·
(ii) after the commenre of this Act
in oa11es in which inquiries were pending
at the commencement of this Act, or
( c) in pursuance of an m der issued by
the Mamlatdar in respect of an entry under
section 6 of this Act.
4.
For the purpu>l's of the 1ekvant 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 elate for
such continuous period of twelve years or
more, holding the same tenure-land, or any
other tenure-Janel, 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, ehall unless it is
proved by the tenure-holder that he would not
have been a permanent tenant on the basis
of continued posseesion of the land under
clause ( b ), be beemed to be a permanent
tenant of the land under clause (a) and all the
provisions of that Act shall apply to him 118
they apply to a permanent tenant.
Explanation.-The assesament for the
purpose of this section shall be reckoned as
provided in clauses (a) anel (b) of section 5.
6.
(I) The rights of an inferior holder,
permanent holder or permanent tenant under
sections 4 and 5 shall be entered in the record
of rights unleBB the tenure holder applies in
writing to the Mamlatelar within six months
from the date of the commencement of this
Act for a declaration that any holder or
tenant uneler him is nut an inferior holder, a
\
z s.o.R.
SUPREME COURT REPORTS
427
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 I 35D of the
Bombay Land Revenue Code, 1879."
'.f'he constitutional validity of the aforesaid
provisions has been challenged before us on behalf
of the petitioners on the following grounds.
(I) The Bombay State legislature was not
competent to enact the impugned Act, which is a
piece of colourable legislation inasmuch as under
the guise of defining a permanent tenant, or changing a rule of evidence, it has really confiscated a
large part of the :iurchase p1 ice which the petitioners
were er!titled to under s. 32H of the TtJnancy Act,
1948 from some of their tenants;
(2) The
impugned
Act
contravenes the
rights of the petitioners
guaranteed
by the
Constitution under Arts. 14, 19 (1) (f) and 31 thereof; and
(3) Article 31A does not save it.
On behalf of the respondents the main argument is that the impugned Act, 1958, merely
changes a rule of evidence for determining who are
permanent tenants in
possession of taluqdari
lands ; it does nothing more than that and is not,
therefore, bad on any of the grounds urged on
behalf of the petitioners. It is clear that if the
impugned Act merely changes a rule of evidence
for determining who are permanent tenants in
possession of taluqdari lands, then the points urged
as to the violation of the petitioners' fundamental
rights under Arts. 14, HJ (1) (f) and 31 would not
at all ariae. If, on the contrary, it is found that the
impugned Act is not a piece of legislation which
changes a rule of evidence but is a device by which
the petitioners have been deprived of their property
Maharana Sh t
·' ayva11Jjingkji
Ranmalairigh 1te.
v.
The Stat1 of Gujora
DasJ.
1961
Malusrc.na Sfi,i
,,~ ... tsi.,~ji
Raf'JMUU.,hji etc,
••
n, QW. oJGMjtuol
D&1J•
428 SUPREME COURT REPORTS (1962] SUPP.
without pa.ymont of compensation,then it would be
a pieoo of coloura.blo legislation not within the
competence of tho State Legislature. The legislation
would then fall on the main ground that it is a piece
of colourable legislation, the subj~ct matter of
which is not covered by any entry in List II or
List III.
Therefore, the crux of tho matter iN what is
the true scope and. effect of the provisions of the
impugned Act, 1958.
To this question we now
a.ddreas ourselves.
It may be stated at the very outset that the
coustitutional validity of the r.,Jovant provisirms
of tho Taluqdari Abolition Act, 1949 and the Tenancy Act, 1948 aa amended by Bombay Aot, XIII of
1956 has not been challenged before us. In Dhirubha
Devisingh Gohil v. The sf,a/,e of Bombay (')and Sri
Ram Ram Narain Me,dhi v. 'l'he State of Bombay(•), it
was held by this Court that the relevant provi•iona
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 pm visions in 88. 3, 4 and 6
which we h'lve quoted earlier.
What is the scope
and effect of those provisions?
l::ection 3 in effect
states that a person shall, within th'lf meaning of tho
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 haa been
recordod 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
oircumstancea-
( a)
Ln the di.to of the abolition of the relevant land-tenure ; or
( b)
in pursuance of orders is1med during the
course of
any
prccecding under the
relevant
]and tenure abolition law or tho Rcv"nue Code
(IJ [19!i5J 1 s.c.R. w1.
12) ll959JSupp. l ~.C.R.4l!9.5\8·519.
2 S.C.R.
SUPREME COURT REPORTS
429
either before or after the commencement of the
impugned Act, 1958 ; or
(cl in pursuance of an order issued by the
Mamlatdar in respect of an entry under s. 6 of the
impugned Act, 1958. It is worthy of note that s. 3
does not create a mere presumption, as is refocred
to in s. 135J of the Revenue Code. .Section 135J
of the Revenue Code states inter alia that an entry
in the record of rights shall be presumed to be true
until the contrary is proved. Section 3 of the
impugned Act, 1958 states, however, that a person
shall 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 in
respect of any tenure land in any of the three
circumstances mentioned as (a), (b)and (c) therein.
In other word~. if any one of the three circumstances mentioned in the section exists, then by a
fiction of ·law a person who fulfils that circumstance
must be deemed ~o be a permanent tenant. Section 4
says in effect that a tenant( a) who on the date of the
commencement
of the Taluqdari Abolition Act,
1949 was holding a.ny 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 contin•10us period of 12 years
or more, holding the same tenure land, or any other
tenure land shall unless it is proved by the tenurehol<ler that he would not have been a permanent
tenant on the basis of continued passession of the land
under( b )above, be deemed to be a permanent tenant
of the land under (a), and all the provisions of the
Taluqdari Abolition Act, 1949 shall apply to him
as they apply to a permanent tenant. There is a
third condition mentioned in s. 4, namely, the
amount which the tenant pays must exceed the
assessment of the land. This condition does not,
however have any importance in the discussion
which follows and no further reference to it is
neCPRRary.
1961
M aharana Slari
J~vtu;tsin~hji
Ranmalainghji etc.
v.
Tht St~ of Gujarat
DasJ.
1961
M aharana Shri
J a_yt!anising~ji
Ranmalsinghji etc.
v.
The Stale of Gujarat
Das J.
430 SUPREME COURT REPORTS [1S62) SUPP.
There is no difficulty in' .understanding cl. (a)
of s. 4 but cl. (b) is not so clear. The expres$ion
"continuous periods as aggregate to a total continuous period of twelve, years or more" is neither
very elegant nor very clear. Perhaps, the expression
means that one particular continuous period may
be of less than twelve years but there may be more
than one such continuous period and in SU('h a
case t~e 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 cnntinuous periods of possessinn of the 8ame ier,ure-iand
or of any other tenure-land cqmes to twelve years
or more, then cl. (b) of s. 4 is fulfilled. It further
appears that conditions mentioned in (a) and (h) are
comulati ve.
In other words, for the applicat.ion
of s.4.a tenant must be in possession of tenure-land
on the date of the commencerr,ent of the Taluqdari
Abolition Act, 1949 (August 15, i950) and furthermore must have been in possession of the same
tenure-land or of any other tenure-land for continuous periods aggregating more than twelve years
immediately before the slLid date. A person who
fulfils the a,foresaid two condit.ions shall be deemed
to be a permanent tenant of th" land unles• it is TJTOved b"TJ t!l~; t;~11Uf·e~}101<ltr thn.t f~C VfY}~ii•] (lOt.}1a,·.•l\ beeri
(~ Th~1·ffianent tCliants on the ba.,.-.i8 of poSSf.'S8iuu tefe~
"
•
"
• •
•
1"!'1:1
•
r
-
•
•
1
"T.';;:.~ ~ . .,:; 11.J. c~L., bJ . .i.'11e c:xp1·essto:1 ' unless 1t 1s pro'T~f
bv t.he tanur,.,·bo!dcr th~t he ;\·oulJ uot have been a
permanent. tenant on the basis of c·ontinuPd possession of tbe land wider clause (b)" has again given
rise to some difficulty.
Two view~ have been can-
'
I
I
2•8.C.R. SUPREME COURT REPORTS
-
431
vassed before us.
One view is that,, the expression
means "that the tenure-holder can t1nly contest the
correctness of the claim of tweh·e years' possession
and show that the tenant was not. in posse0 sion
of the !rind or lands concerned or thn.t tho conti·
nuous period or periods of possession did not aggregate twelve years. The other view
i~ that the
teμnre-holder c,m show that. the tenancv commenced
on a particular date or that there is' satisfactory
eviclC'ncc of the duration of the tRna11cy, am! therefore, under s.