Case: Maharana Shri Jayavantsinhji Ranmalsinhji &amp; Others Vs. State of Gujarat &amp; Others

must be held that it does not impose a reasonable restriction. We have found it very difficult to understand why and how it is reasonable that the tenure-holder must make an application within six months from the commencement of the impugned Act, 1958, for a declaration that his tenants are not permanent tenants. The petitioners have three kinds of tenants-permanent tenants, protected tenants, and ordinary tenants. On April 1, 1957 the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price under s. 32H. If any tenant claimed on that date that he was a permanent tenant, he had to establish his claim in accordance with s. 83 of the Revenue Code. Such a claim could be contested by the tenure-holder whenever made by the tenant. 14. But by the impugned Act, 1958, all this was changed, and unless the tenure holder made an application within six months of the commencement of the impugned Act, 1958, he was not in a position to say that a particular tenant who was in possession of tenure-land for continuous period aggregating twelve years on and before August 15, 1950, was not a permanent tenant. We are unable to hold that the six months limit imposed by s. 6 of the impugned Act, 1958, is in the circumstances, a reasonable restriction within the meaning of Art. 19(5) of the Constitution. It is a little difficult to understand how the tenure-holder could know which of his non-permanent tenants would claim to be permanent on the coming into force of the impugned Act, 1958. Obviously, the tenure-holder had to anticipate that all his non- permanent tenants might claim to be permanent, and therefore it was incumbent on him to make an application for a determination that none of his non-permanent tenants were permanent, and unless he did so he would lose his right to get the purchase price under s. 32H of the Tenancy Act, 1948. We are clearly of the view that the time limit imposed by s. 16 of the impugned Act, 1958, is, in these circumstances, and unreasonable restriction and cannot be justified under Art. 19(5) of the Constitution.In view of this finding it is unnecessary to consider the effect of Art. 31 of the Constitution. On behalf of the respondent State reliance was sought to be placed on Art. 31A of the Constitution. That Article, in our opinion, has no application to the present cases, inasmuch as there was no acquisition by the State of any estate or any rights therein or the extinguishment or modification of any such rights. On April 1, 1957, the tenure-holders had ceased to be tenure- holders in respect of lands held by non-permanent tenants. The relation between the tenure-holders and the tenants had changed from that of landlord and tenant to that of creditor and debtor. When, therefore, the impugned Act, 1958, affected the right of the petitioners as creditors to get a certain sum of money from the debtors, it did not provide for the acquisition by the State of any estate or of any rights therein; nor did it provide for the extinguishment or modification of any such rights. Therefore, Art. 31A has no application and cannot save the impugned Act, 1958. 15. It has been contended before us that while implementing the provisions of s. 5A of the Taluqdari Abolition Act, 1949, it was found that because of the failure or inability of the ex- Taluqdar to produce old records concerning the tenants it was difficult for the tenants to take the benefit of that provision; therefore, it became necessary for the Legislature to define permanent tenant in such a way that the tenure- holder might not defeat the provisions of s. 5A. That it was stated, was the reason for enacting ss. 3, 4 and 6 of the impugned Act, 1958. We are unable to accept this argument as correct. If the reason was as stated above, then the tenure-holder should have been given a chance to contest the claim of the tenant whenever he made a claim of being a permanent tenant. It appears to us that the true scope and effect of the provisions in ss. 3, 4 and 6 of the impugned Act, 1958 is to considerably reduce the purchase price payable to the petitioners and this has been secured by the device of defining permanent tenant in such a way that the tenure-holder has no real opportunity of contesting the claim of the tenants. In that view of the matter, the impugned Act, 1958, does not fall within any entry of List II or List III of the Seventh Schedule to the Constitution and is a piece of colourable legislation. What is colourable legislation was explained by this Court in K. C. Gajapati Narayan Deo v. The State of Orissa (1). This Court said that the idea conveyed by the expression "colourable legislation" is that although apparently a legislature in passing a statute purported to within the limits of its powers, yet in substance and in reality it transgressed those powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. We are of the view that, that is what has happened in the present case. Under the guise of defining a permanent tenant or changing a rule of evidence what has been done is to reduce the purchase price which became payable to the tenure-holders on April 1, 1957.For these reasons we must hold that ss. 3, 4 and 6 of the impugned Act, 1958 in so far as they deem some tenants as permanent tenants in possession of taluqdari land are unconstitutional and void. Under the guise of changing the definition of a permanent tenant, they really take away a large part of the right of the petitioners to get the purchase price under s. 32H of the Tenancy Act, 1948, from some of their tenants.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 permanent tenants. Section 2 of the Act is the interpretation section and the expression Land Tenure Abolition law means in relation to a permanent tenant, Acts specified in Part I of the Schedule. The Taluqdari Abolition Act, 1949 is one of the Acts mentioned in Part I of the Schedule. The expression tenure- holder means inter alia a taluqdar and tenure- land means inter alia taluqdari landIt 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, 19 (l) (f) and 31 would not at all arise. 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 without payment of compensation, then it would be a piece of colourable legislation not within the competence of the State Legislature. The legislation would then fall on the main ground that it is a piece of colourable legislation, the subject matter of which is not covered by any entry in List II or List IIISection 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 words, 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 to 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 any tenure land, and (b) who and whose predecessors in title, if any, were immediately before that date for such continuous periods as aggregate to a total continuous period of 12 years or more, holding the same tenure land, or any other tenure land shall unless it is proved by the tenure- holder that he would not have been a permanent tenant on the basis of continued possession of the land under (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 necessary. There is no difficulty in understanding cl. (a) of s. 4 but cl. (b) is not so clear. The expression "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 such a case the totality of such continuous periods must aggregate twelve years or more; if however, one continuous period extends over twelve years or more, there is no difficulty, and the question of the aggregate totalling twelve years does not arise. The question of the aggregate totalling twelve years will arise when there are more continuous periods than one, of less than twelve years duration each. The possessions for such continuous periods may be of the same tenure-land or of different tenure-lands.If however, the aggregate of continuous periods of possession of the same tenure-land or of any other tenure-land comes to twelve years or more, then cl. (b) of s. 4 is fulfilled. It further appears that conditions mentioned in (a) and (b) are cumulative. In other words, for the application of s.4, a tenant must be in possession of tenure-land on the date of the commencement of the Taluqdari Abolition Act, 1949 (August 15, 1950) and further more must have been in possession of the same tenure-land or of any other tenure-land for continuous periods aggregating more than twelve years immediately before the said date. A person who fulfils the aforesaid two conditions shall be deemed to be a permanent tenant of the land unless it is proved by the tenure-holder that he would not have been a permanent tenants of the basis of possession referred to in cl.(b). The expression "unless it is proved by the tenure-holder that he would not have been a permanent tenant on the basis of continued possession of the land under clause (b)" has again given rise to some difficulty. Two views have been can- vassed before us. One view is that the expression means that the tenure-holder can only contest the correctness of the claim of twelve years possession and show that the tenant was not in possession of the land or lands concerned or that the continuous period or periods of possession did not aggregate twelve years. The other view is that the tenure-holder can show that the tenancy commenced on a particular date or that there is satisfactory evidence of the duration of the tenancy, and therefore, under s. 83 of the Revenue Code the tenant would not be a permanent tenant merely by reason of twelve years possession12. Section 4 as worded is somewhat obscure and if one were to go merely by the words used, one would be inclined to accept the first view. On that view, the Section undoubtedly would go much further than merely introducing a rule of evidence; it would create a new class of permanent tenants not contemplated by s. 83 of the Revenue Code. The latter section talks of two circumstances which determine the status of a tenant: one relates to commencement of the tenancy and the other to its intended duration. Under s. 83 the onus will be on the person who claim a permanent status as a tenant to prove that either the commencement of the tenancy is not known or that its intended duration was not agreed upon between the landlord and tenant or was not governed by any usage of the locality. Section 4 of the impugned Act, 1958 gives a go-by to these circumstances. It brings in different considerations altogether. In effect it says that if a person was in possession of any tenure-land on August 15, 1950 (the date of commencement of the Taluqdari Abolition Act, 1949) and was further more in possession of the same tenure-land or any other tenure-land for a continuous aggregate period of twelve years, he would be deemed to be a permanent tenant, unless the tenure-holder proved that he was not in possession for a continuous aggregate period of twelve years as laid down in cl. (b) of the section. This means that instead of the two circumstances relating to commencement and duration a new consideration is brought in, namely, whether the tenant has been in possession for a continuous, aggregate period of twelve years. If he has been, then he is a permanent tenant. If he has not been in such possession, then he is not a permanent tenants. In other words, s. 4 of the impugned Act, 1958, completely changes the definition of a permanent tenant and creates a new class of permanent tenants who were not permanent tenants on April 1, 1957. If this view is correct, and we think that there is a good deal to be said in favour of this view, then s. 4 of the impugned Act, 1958 in spite of giving the tenure-holder an opportunity of proving that the tenant was not in possession for an aggregate continuous period of twelve years under s. 4 read with s. 6, undoubtedly changes the very definition of permanent tenant and by that change wipes out a large part of the purchase price which the petitioners were entitled to get on April 1, 1957 from some of their tenants. It is not disputed that on this view of s. 4, the impugned legislation would be unconstitutional inasmuch as it would bring within the category of permanent tenants persons who were non-permanent tenants under the previous law and there by deprive the tenure-holders of part of the purchase money which they were to get from them.It has been contended that the second view with regard to the expression "unless it is proved by the tenure-holder that he would not have been a permanent tenant on the basis of continued possession of the land under clause (b)" is preferable on the ground that cl. (b) is one of the conditions which the tenant must fulfil before he can get the benefit of s. 4 and there would not be much sense in allowing the tenure-holder to disprove a condition which the tenant must fulfil before he can get the benefit of s. 4. We find it difficult to accept this view. On a pure question of construction of the words used in s. 4, we see nothing wrong in allowing the tenure-holder to prove that the tenant was not in possession for continuous periods aggregating twelve yearsFrom this point of view it may be argued that s. 4 merely changes a rule of evidence and throws the onus on the tenure-holder to prove that in spite of twelve years continuous possession mentioned in cl. (b), the tenant is not a permanent tenant by reason of the circumstance that the commencement of the tenancy or its intended duration is known. Under s. 6 the rights of a permanent tenant under s. 4 shall be entered in the record of rights unless the tenure-holder applies in writing to the Mamlatdar within six months from the date of the commencement of the impugned Act, 1958, for the declaration that the tenant under him is not a permanent tenant. If any such application is filed by the tenure-holder, it shall be disposed of as if it were an application in respect of a disputed case under s. 135D of the Revenue Code. What is the effect of s. 6 ? It was conceded by the learned counsel appearing for the respondent State and also the respondent tenants that the tenure- holder has only one opportunity of saying that a tenant under him is not a permanent tenant and the tenure-holder must avail himself of that opportunity within six months from June 10, 1958, the date on which the impugned Act, 1858, came into force. The combined effect of ss. 3, 4 and 6 appears to us to be this. If the tenure-holder has made no application within six months from June 10, 1958, for a declaration that a tenant under him is not a permanent tenant, every tenant under him who fulfils the conditions mentioned in cls. (a) and (b) of s. 4 at once gets recorded in the record of rights as a permanent tenant. As soon as he is so recorded, he must be deemed under s. 3 to be a permanent tenant by a fiction of law and under s. 4 all the provisions of the Taluqdari Abolition Act, 1949, will apply to him as they apply to a permanent tenant. This combined effect of ss. 3, 4 and 6 of the impugned Act, 1958 does in our opinion deprive the tenure-holder of any real opportunity of contesting the claims of his tenants and makes them permanent tenants once they are recorded in the record of rights, thereby depriving the tenure-holder of the purchase price which he was entitled to get from them under s. 32H of the Tenancy Act, 1948If the petitioner had filed no application for a declaration within the meaning of s. 6 of the impugned Act, 1958, and within the time allowed by that section, then it is obvious that the Revenue Officer dealing with the suits under s. 70(b) of the Tenancy Act, 1948, pending before him, or the Revenue Officer dealing with other proceedings before him, must give effect to the provisions of ss. 3, 4 and 6 of the impugned Act, 1958. It is, therefore difficult to see how the pendency of the suits or other proceedings before the Revenue Officers concerned can be of any assistance to the petitioners. The question, therefore, boils down to this. Section 6 of the impugned Act, 1958 does give one opportunity to the petitioners to make an application for a declaration that any tenant under him is not a permanent tenant, but that opportunity was to be availed of within six months from June 10, 1958. Once that opportunity is lost, the tenure-holder cannot claim that a tenant who fulfils cls. (a) and (b) of s. 4 is not a permanent tenant. Our attention was drawn to sub-ss. (3), (4) and (5) of s. 5A of the Taluqdari Abolition Act, 1949. Those sub-sections say in effect that if any question arises whether any person is a permanent tenant, the State Government or an officer authorised by the State Government in that behalf shall decide the question; where such officer decides such question any person aggrieved by the decision may file an appeal to the State Government within 60 days from the date of the decision; and the decision of the State Government shall be final. It was not suggested before us that the aforesaid sub-sections would give the tenure-holder a second opportunity of contesting the claim of the tenant, and it seems to us quite clear that the tenure- holder who had failed to make an application within the time mentioned in s. 6 of the impugned Act, 1958, would not be in a position to take advantage of sub-ss. (3), (4) and (5) of s. 5A of the Taluqdari Abolition Act, 1949. If ss. 3, 4 and 6 of the impugned Act, 1958, are good and valid in law, then whichever be the authority that has to decide the claim of the tenant, it must decide it in accordance with those provisions.We think that this question must be answered in the negative.It is to be noted that on April 1, 1957 the petitioners ceased to be tenure-holders of the lands held by non-permanent tenants and as held by this Court, ss. 32 to 32R of the Tenancy Act, 1948, clearly contemplated the vesting of the title in the tenants on the tillers day, defeasible only on certain specified contingencies. This Court held that those sections were designed to bring about an extinguishment, or in any event a modification of the landlords rights in the estate within the meaning of Art. 31A (1) (a) of the Constitution. If that was the true effect of ss. 32 to 32R of the Tenancy Act, 1948, then on April 1, 1957 the petitioners were left only with the right to get the purchase price under s. 32H. That right of the petitioners was undoubtedly a right to propertyWe have found it very difficult to understand why and how it is reasonable that the tenure-holder must make an application within six months from the commencement of the impugned Act, 1958, for a declaration that his tenants are not permanent tenants. The petitioners have three kinds of tenants-permanent tenants, protected tenants, and ordinary tenants. On April 1, 1957 the petitioners ceased to be tenure holders in respect of all tenants other than permanent tenants and became entitled only to the purchase price under s. 32H. If any tenant claimed on that date that he was a permanent tenant, he had to establish his claim in accordance with s. 83 of the Revenue Code. Such a claim could be contested by the tenure-holder whenever made by the tenant14. But by the impugned Act, 1958, all this was changed, and unless the tenure holder made an application within six months of the commencement of the impugned Act, 1958, he was not in a position to say that a particular tenant who was in possession of tenure-land for continuous period aggregating twelve years on and before August 15, 1950, was not a permanent tenant. We are unable to hold that the six months limit imposed by s. 6 of the impugned Act, 1958, is in the circumstances, a reasonable restriction within the meaning of Art. 19(5) of the Constitution. It is a little difficult to understand how the tenure-holder could know which of his non-permanent tenants would claim to be permanent on the coming into force of the impugned Act, 1958. Obviously, the tenure-holder had to anticipate that all his non- permanent tenants might claim to be permanent, and therefore it was incumbent on him to make an application for a determination that none of his non-permanent tenants were permanent, and unless he did so he would lose his right to get the purchase price under s. 32H of the Tenancy Act, 1948. We are clearly of the view that the time limit imposed by s. 16 of the impugned Act, 1958, is, in these circumstances, and unreasonable restriction and cannot be justified under Art. 19(5) of the Constitution.In view of this finding it is unnecessary to consider the effect of Art. 31 of the ConstitutionThat Article, in our opinion, has no application to the present cases, inasmuch as there was no acquisition by the State of any estate or any rights therein or the extinguishment or modification of any such rights. On April 1, 1957, the tenure-holders had ceased to be tenure- holders in respect of lands held by non-permanent tenants. The relation between the tenure-holders and the tenants had changed from that of landlord and tenant to that of creditor and debtor. When, therefore, the impugned Act, 1958, affected the right of the petitioners as creditors to get a certain sum of money from the debtors, it did not provide for the acquisition by the State of any estate or of any rights therein; nor did it provide for the extinguishment or modification of any such rights. Therefore, Art. 31A has no application and cannot save the impugned Act, 195815. It has been contended before us that while implementing the provisions of s. 5A of the Taluqdari Abolition Act, 1949, it was found that because of the failure or inability of the ex- Taluqdar to produce old records concerning the tenants it was difficult for the tenants to take the benefit of that provision; therefore, it became necessary for the Legislature to define permanent tenant in such a way that the tenure- holder might not defeat the provisions of s. 5A. That it was stated, was the reason for enacting ss. 3, 4 and 6 of the impugned Act, 1958. We are unable to accept this argument as correct. If the reason was as stated above, then the tenure-holder should have been given a chance to contest the claim of the tenant whenever he made a claim of being a permanent tenant. It appears to us that the true scope and effect of the provisions in ss. 3, 4 and 6 of the impugned Act, 1958 is to considerably reduce the purchase price payable to the petitioners and this has been secured by the device of defining permanent tenant in such a way that the tenure-holder has no real opportunity of contesting the claim of the tenants. In that view of the matter, the impugned Act, 1958, does not fall within any entry of List II or List III of the Seventh Schedule to the Constitution and is a piece of colourable legislation. What is colourable legislation was explained by this Court in K. C. Gajapati Narayan Deo v. The State of Orissa (1). This Court said that the idea conveyed by the expression "colourable legislation" is that although apparently a legislature in passing a statute purported to within the limits of its powers, yet in substance and in reality it transgressed those powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise. We are of the view that, that is what has happened in the present case. Under the guise of defining a permanent tenant or changing a rule of evidence what has been done is to reduce the purchase price which became payable to the tenure-holders on April 1, 1957.For these reasons we must hold that ss. 3, 4 and 6 of the impugned Act, 1958 in so far as they deem some tenants as permanent tenants in possession of taluqdari land are unconstitutional and void. Under the guise of changing the definition of a permanent tenant, they really take away a large part of the right of the petitioners to get the purchase price under s. 32H of the Tenancy Act, 1948, from some of their tenants.