Sha•lital SiuJllkarl•I Shah Denmber 32. for attendance of the company "in person" v. T"' Slot. of Gufrat 412 SUPREME COU.KT REPORTS [1962] St: Pl'. a' & Ors.

Judgment

J.-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 land lord 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 ten ancy, 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 per manent, 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 Bom bay 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. 1P8. Jlalunona Sh,i Jap""'si111hji RnmalJinthji tic. v, 77w 81ot1 ojGujmt 'L, II ' .... 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 Cons titution 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 writing. Obviously such objection could only be on grounds open to him under s. 4. Section 4(b) and s.6(1) of the read together a• forming an impugned Act had 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. filed an objection to be 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). 1961 Maharona ~hri Jayranto;, ghji Ranma/singhji etc. y, Tt.. St•te of Guj.at Dos J 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 deli vered by Mudholkar, J., and Ayyangar, J., delivered a separate judgment. S. K. Das, J,-In these 13 writ petitions arises a common question of law, namely, the constitu- tional validity of some of the provisions of the Bombay Land Tenure Abolition Laws (Amendment) Act, 1958 (Bombay Act LVII of 1958) and in parti- cular, 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 Aboli tion 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 peti tioners 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 colour able 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, there fore, 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 the Tenancy Act, time·to time, hereinafter called 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 ques tion of Jaw whi.ch is i.he same in all these petitions and which we have indicated briefly in the preced ing 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 the Ahmeda.bad district of the then State of 1961 Mahar411a Sisti J ayvantsinghji RanmalsingAji eto. v. T/,, St•te ofGujaro DasJ. 2 S.C.R. SUPREME COURT REPORTS 417 tanks, waste

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. pay ment 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 Legisla ture 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, 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 In 1955 the Taluqdari Abolition Act, occupant." 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 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 : x x "83. 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 bet ween 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 co extensive 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 posses sion as tcnan t. x x x x" It will be noticed that the expression "permanent 'Vhat is tenant" does not occnr in the section. 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 : 1961 M aharana SAri J a)f'anlsinfhj i Ranmalsingf!ii elo, •• The Stale of Grgaf'ld DasJ. " 'permanent tenant' means a person (a) who immediately before the commence ment of the Bombay Tenancy and Agricul tural Lands (Amendment) Act, 1955 (herein after called 'the Amending Act, 1955')- (i) holds mirasdar; or land as mulgenidar 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 en tered in the reco.rd of rights or in any public record or in any other revenue record as a permanent immediately before the commencement of the Amending Act, 1955." tenant 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 Aboli tion 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." 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 includ ing 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 taluq dari 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 the provisions in s. 83 of the determined by Revenue Code; in other words, hy the two circums tances 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 tenants were governed by the non-permanent 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 con sidered 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 . .. 1B61 Afaharona Shti J O,Yvantsinehji Ranmalainghji tie. v, Thi Stot• of Guj.,.q1 DasJ. 2 S.C.R. SUPREME COURT REPORTS 421 he is or is not willing to purchase the 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 pay ment 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 effec tive 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 sus pended for any period definite or indefinite." 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 they were lands were concerned, 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 pur cha.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 land lord on the land ; (c) the amount of thP arreas of rent, if any lawfully due on the tillers' day or the postponed date ; IHl Makarana Shri. J aytJant.singhji Ronmalsinghji etc. v. The Stat, of Gujarat _ Das J. 2 S.C.R. SUPREME COURT REPORTS 423 * * * * · (d) the amounts, if any, paid by or recove red 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 * * to whom sub- a tenant sections (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 for the period at 4:, per cent, per annum 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 calcula ted 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 land lord if such products are removed by the landlord during the said period shall be dedu cted from, the &mount so arrived at. 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 ·gene ral 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 back ward 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." l 948, 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, 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 assess ment 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 back ward 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 men tioned 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 In petition No. 120 of 1968 Tenanoy Aot. 19i8. 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 1941 AJ aharana Shri J ayvaritsinghJi (Ra~malsinglrji etc. v, 'Tht Stute of Gujaf'at Das J. 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 cer tain other mi.tters." In view of the argument advan ced before us on behalf of the respondents that the impugned Act, 1958 merely changes a rule of evi dence, it is worthly of note that the long title itself states that the Act is an Act further to define pc1ma nent 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 'tcnure holder' means inter alia a taluqdar and 'tenure land' 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, per manent 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 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 tenure-land of that Act was holding any (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 purpose of this section shall be reckoned as provided in clauses (a) anel (b) of section 5. (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

#6. 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." Maharana Sh t ·' ayva11Jjingkji Ranmalairigh 1te. v. The Stat1 of Gujora DasJ. '.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 chang ing 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 petitioners guaranteed by rights of Constitution under Arts. 14, 19 (1) (f) and 31 there of; and (3) Article 31A does not save it. tenants in On behalf of the respondents the main argu ment is that the impugned Act, 1958, merely changes a rule of evidence for determining who are permanent 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 tenants in for determining who are permanent 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 \ 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 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 Tenan cy 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 l::ection 3 in effect and effect of those provisions? 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 rele vant land-tenure ; or ( b) in pursuance of orders is1med during the relevant any prccecding under the course of ]and tenure abolition law or tho Rcv"nue Code ll959JSupp. l ~.C.R.4l!9.5\8·519. [19!i5J 1 s.c.R. w1. (IJ 12) 1961 M aharana Slari J~vtu; tsin~hji Ranmalainghji etc. v. Tht St~ of Gujarat DasJ. 2 S.C.R. SUPREME COURT REPORTS 429 either before or after the commencement of the impugned Act, 1958 ; or (cl the contrary 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 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 circums tances 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 tenure land shall unless it is proved by the hol<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 Shri J a_yt!anising~ji Ranmalsinghji etc. v. The Stale of Gujarat Das J. 430 SUPREME COURT REPORTS [1S62) SUPP. totalling 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 conti nuous 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 in SU('h a than one such continuous period and 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 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 cnnti nuous 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 In other words, for the applicat.ion comulati ve. 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 further more must have been in possession of the same tenure-land or of any other tenure-land for conti nuous 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 TJTO ved 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 "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 posses sion of tbe land wider clause (b)" has again given rise to some difficulty. Two view~ have been can- 1"!'1:1 r • • • • " " - • • • 1961 Mah.a1an.J Shri JaJVOntsinghji Ranmalsinghj1 f.!c. v. The State of Gujarat DasJ. 2•8.C.R. SUPREME COURT REPORTS - 431 furt'hcr than merely 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 posse 0 sion of the !rind or lands concerned or thn.t tho conti· nuous period or periods of possession did not aggre gate twelve years. The other view i~ 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! there fore, under s. 83 of Lli~ Revenue Code the tenaut would not be a _pernrn, nent t<'nant merely· by reasu11 of twelve y~ars' pciesession. Section J as worded is somewhat obscure and if one wore to go m<>rely by the words used, one wnuld b'e inclined to accept the first view. On that view, the Se<'tion 1111(\"nhtcrlly w:mld go much intr0<luc· in~ a rule of evi<lenee ; it would create a new ,,]ass ofperumuent tenant·" not contemplated by s. 83 of l!:u k.tter ~n~tion talk• of two th<' H.e,·vmw Code. ,.;.,."nmM~.;nces which dP.termi1w the stntus of a t 1~114111 : :.in<' rolntf•S to c-0r.ir11enc<'mPnt lJf the l{~nan· c·.- ,1:1.._ ii1e c;thc·r t.Q lt~1 int.llnded. dt1ratiorL T ... 11dC'r 8: 8:1 t.he onus w1li ia' or. thn nerso11 who r.Inini '" 1JCrllli\.lh . .'!Ilt t=.t;i.tus US a tf'nant. to prove that oi t-her thu (·omno<'nc>empnt. ol' the ter.ancy is not known 0!1 tlrn~ its intt•nrkr1 duration was not' agrc·P.d upon between thl' landlord and tenant or was not ~overn~d by any usage of 'the locality. R~C'-!inn 4 of tho impugn•·d Act, Ul58 gi,·e~ a go· by to thesP circum It bringM in diffor1~nt consirfomtions :tlt0- ~tanc!.'s. \\·hs in In effect. it says that. if n. pernon geth«1« possp;;siou of m1y tenure-limcl on AuQw;t 1:3, UlB"\l (the elate of conimeneell:icnt of the T:i.ii,;1ci>ll"i A holi tiou At't, I 0-l!l) and was further more in P"'··'e~g;. "l '- f the same tenure-land or any other tent' tr· hnd for· a co::tiPut1u,1 n.ggrPgate pei·iotl of- t\\·eh-e Y<'ars, he 11·111tld Le deer.it•rl 10 l;o a p\Jrrn~.:t?t!t t.Pnant, unless the temtre-hulder pt«Jved that he wa~ not !!t JJGE.,t·o~­ io11 fur a. continuous aggregate period of twelve'years ' I I Illd/ Maharona Slf.i J'!1f!antJilt11t)i RamnolJinghji tic. T~ Stalt of Gujarat DasJ. 432 SUPREME OOURT REPORTS [1962] SUPP. tenant. instead of the (b) of the St'lction. This means &R laid down in cl. two circumstanoes relating to commencement and duration a new consideration is brought in, namely, whether the tenant ha~ been aggregate period in possession for a continuous, of twelve years. If he has been, then he is a If he has not been in such permanent possession, then he is not a permanent tenant. In impugned Act, 1958, other words, s. 4 of completely changes the definition of a permanent t<>nant and creates a new cl:uis of perqmmmt tenants who wcrn not permanent tenants on April 1, )!)57. If this virw id correct, and we think thnt there is a good deal to be said in favour of this view, s. 4 of the impugned Act, I 958 in spite of giving t<•nure·holder an opportunity of proving that the tenant was not in possession for an aggr«gate continuous period of twelve ~·ears under s. 4 rPad withs. 6, undoubtedly changeR the very definition of permanent tenant and by that change wipes out a hrge part of the purchase priCP which tlJe p~t i· tionf·rs were Pntitled to get on April I, 1957 from some of their tt-nant-R. It is not disputPd that on this view of e. 4, the impugm·d h·gislation would inasmuc·h as it would b1 ing be unconstitutional within the category of permanent tenants persons who were non·pcrmanent previous law and there by deprive the tenure-holders of part of the purchase money which thPy were to get from them. tenants under tenure-holder It has been contended that the second view with regard to the expression "unless it is provrd Ly that he would not have bern a permanent tenant on the basis of continued JH•sses· sion of the land under clause ( b)" is prefcralilc on the ground the conditions which the tenant must fulfil befor•J ho can !!'Ct the benefit of s. 4 and there would not be much sense tenure-holder to disprove a condi in allowing tho tion which the tenant must fulfil before he l·an get (bl is on•· of that cl. M aharona Sltti J ayoantsinghji Ranmolsinghji ,tc. v. Tll, 8tat1 of (}ujaf'at Dis J. 2 S.C.R. SUPREME OOURT REPORTS 433 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 aggre gating twelve years. Let us, however, assume that the second view as to the interpretation of s. 4 of the impugned Act, 1958, is preferable to the first view. What then is the position? The position then is that a tenant who fulfils the two conditions mentioned in els. (a) and (b) must be deemed to be a permanent tenant unless the tenure-holder proves the commencement and/or duration of the tenancy. From 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 twe Ive 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. tenant under Under s. 6 the rights of a permanent s. 4 shall be entered in the record of rights unless the tenure-holder applies in writing to the llfamlat, dar within six months from the date of the commence impugned Act, 1958, for the declara ment of the tion that the tenant under him is not a permanent tenant. Jf any such application is filed hy the tenure-holder, it shall be disposed of as if it were an respect of a disputed case under application in s. I 35D of the Revenue Code. What is the effect of s. 6 ? It was conceded by the learned counsel appearing for the respondent State and &!so the respondent tenants that the tenure-holder has only one opportunity of saJ ing that a tenant under him is not a permanent tenant and t.he tenure- holder must avail himself of that opportunity within six months from June IO, 1958, the date on which the impugned Act, 1858, came The combined effect of ss. 3, 4 aud 6 appears to us to be this. If the tenure holder has made no application into force. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ill •harana .Shr: Jayrantsingl •. ii R•nmalsinghji et,. v. The State of Gujarat Das J. 434 "SUPREME COUB,T REPORTS [1962] SUPr· recm·ded within six months from .June 10, 1958, for a declaration that a tenant under him is not a perma.· nent t<>nant, every tenant under him -who-folfils the oonoitit>ns mentioned in els. (a} and (b) of s. 4 art; once gets record of rights as 3' in the tenant.. As soon as he is so rncbrded, permanent he must be deemed under s. 3 to J,,, a permanent fiction of law ·and under s. 4 all the tenant by a provisions of the Taluqdari Abolition Act, 1949, will apply to h!m a8 thtiy apply to a permanent tenant. Thi~ combined effect of ss. if, 4 and 6 of the im~ pugned Act, 1958 does in our opinion depri•:!'I the tenure-holder of any real opportunit.y of contesting the claims of his tenants 1md makeR them perma nen~ -tenants once they ate recorded in the record of rights, thereby depriving the tenure-holde~ of the purchase price which he was entitled to get from t.Jiem under s. 32H of the Tenancy Aet, 1948. relq.ted to all O!l lwl-ialf of the respondents it was stated at the ~'1.-.· that tht1 petitioners had made applications for a dP.da.:·:.' ;on ,under s. 6 of the impugned Act.,, l fl:i8, and ~lt<it thus;, P·!Jplications are still pending. We ha1•c. nu lii.:tp1·i:!ls in Bt<pport of this i;tn.~ment. !'r.half of th" Nu affidavit has beeu m•de o,; rnspw1dent~ to this effect; nor do \\~ know ii t:.,:~n the non-permanent ap].Jlicatic~1~ tenants of the petitfoners. What we knew is that tho petitioner in in a stay applioation made by petition No. 120 of 1958 it was averred that the petitioner had filed several deelaratbry suits before the Mamlatdar under R. 70(b} of the Tenancy Act, 1948, for a deeluration that the tenants concerned were not permanent tenants. Those suits were however, filed prior to the er•rn ing into force of the impugned Act, 1958. The petitioner asked for a stay of thu~~- suits on two grounds: firstly, that after tho coming into force of the impugned Act, 1958, the suits would become infructuous, and secondly, the ~fam],.tdar concerned would have ·no jurisdiction t.o adj11dicate upoi. t!ie constitutional - - ----·------------------- 1961 Mahara"a Sim J ayvantsin,/aji Ranmalsintlrji 1 c. v. The Stat1 of Gujara D,isJ. 2 S.C.R. SUPREME OOUR'I' REPORTS 435 that the tenants and the provisions of validitv of impugned Act, 1958, and in view of those provisions would be bound to hold tenants had become permanent tenants. This Court passed no order on the application for stay. But the petitioner, it appears, moved the Mamlatdar to stay the hearing of the suits pending the disposal of the writ peti· In a tion in this Court and the suits were stayed. second petition filed on behalf of the petitioner it was stated that after the coming into force of the impugned Act, 1958, the petitioner received a notice to show cause why the non-permanent should not be declared to be tenants under him permanent record of rights amended accordingly. The petitioner applied to the Revenue Officer <'oncerned to stay the proceed ings in view of the writ petition pending in this Court. This request was, however, turned down. The petitioner then came to this Court and it appears that ail order was made to the effect that any investigation which might be necessary for the the Revenue Officer proceedings pending before might be continued, but no final order or entry should be made till the disposal of the writ petition. Such an order appears to have been made in respect of a number of villages and the petitioner stated that he had tenants in 24 villages, some of whom were permanent, some protected, and some ordinary. Nothing was stated in those thereto as to whether petitions or in the replies for a the tenur-holder had made an application declaration within impugned Act, 1958. All that has been stated in to a notice the application is received from the Revenue Officer, the petitioner, as a tenure·holder, had moved this Court for a stay of t.he proceedings. If the petitioner had filed no application for a declaration within the meaning of s. 6 of the i!Upugned Act, l 95S, and within the time allow<'d by that section, tlien it is obvious the meaning of s. 6 of thousands of response that in 1951 Maluirmro Shti J qtitn1IJin1hji BtllllMlsinglrji lko v. 7L Stot1 of Guj01at Das I. 436 SUPREME OOURT REPORTS [1962] SUPP the Revenue Officer dealing with the suits under s. 70(b) of the Tenancy Act, 1048, pending before him, or the Revenue Offiet>r dealing with other proCt>edings before him, must give effect to ~he provisions oi ss. 3, 4 and 6 of the impugned Act, 1958. It is, therefore difficult to ~cw how the pendency of the suits or other proceedin~s before the Revenue Officers concerned can he of any aBSistance to the petitioners. The question. therefore, boils down to this. Section 6 of the im pugnecl A ct, 1958 does give one opportunity to the petitioners to make a.n application for a decla.mtion that any ten· ant under him is not a permanent tPnant, but that opportunity was to be availed of within six months from June IO, 1958. Once that opportunity iR lost, tenure-holder cannot claim that a tc11a.nt who (b) of s. 4 is not a permanent fulfils els. (a) and tenant. Our attention was drawn to sub ss. (3), (4) 11.ncJ (5) of s. 5A of the Taluqdari Abolition Act,I!l49. Those suh-Rections say in effent that if any question a.rises whether any person is a permanent tenant, the Sta, te Government or an officer authorised by the State Government in that behalf shall decide the question; where such officer decides 8uch question any person aggrieved by the decision may file an appeal to the State Government within 60 days from the date of the decision; 'Ind the decision of the State Government shall be final. It waH not sull'gestcd before us that the aforesaid sub-sections would give the tenure-holder a second opportunity of contes ting the claim of the tenant, and it seem;; to us quite clear that the tenure-bolder who had failPd to make an application within the time mentioned in s. 6 of the impugned Act, I 9;i8, would not be in a position to take advantage of sub-ss. (3), (4) and (5) of 8. 5A of the Taluqdari Abolition Act, 1949. If se. 3, 4 and 6 of the impugned Act, 1958, .are good and valid in law, then whichever be the autho· rity that has to decide the claim of the tenant, it must decide it in accordance with those provisions. • ll/Ol Maharona Slwi JayuanlJinghji Ranmalsinghji etc. v. Th State of Gujarat Das J. 2 S.C.R. SUPREME COURT REPORTS 437 In thesP. circumstances can it be said that the oppor tunity given by s. 6 is' a real opportunity and does it amount to merely changing a rule of evidenci:? We think that this question must be answered m the negative. It is to be noted that on April 1, 1957 the p~titioners 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 cer tain specified contingencies. This· Court held that those sections were designed to bring about an extin guishment, or in any event a modification of the landlord's 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 undoub· tedly a right to property. In Bombay Dyeing and. .Manufacturing Go. Lf,(l. v. The State of Bombay(') this Court observed, with regard to unpaid wages of an employee, that when an employee had done his work, the amount of wages earned by nim be come a debt due to him from the employer and this was property which Pould be assigned under the law. The provisions of the Bombay Labour Welfare Fund Act (Bombay Act XL of 1953) were under consideration in that case. Section 3 of the Act transferred inter alia all unpaid accumulation of wages to a fund known as the Bombay Labour Welfare Fund. This Court held thats, 3 (1) of the Act in so far as it related to unpaid accumulation in s. 3(2) (b) was unconstitutional and void by rea son of the riifht guaranteed under Art. 19(1) (f) of the Constitut10n and was not saved by cl.( 5) thereof. We think that the same principle must apply in the I [J95B] S. C. R. 1.22. IHl -- JI M#'an• SAri K"'""'~U.,Mi 411fft4/Jt1111tji tk. v. TJ., .~'"" 1J Gujqral Das J, 438 SUPREME COURT REPOl~TS (1962) SUPP· present case. The right of the petitioners to the pur chase price under s. 3:?H of the Tenancy Act, 1948, from those of their tenants who were non-prrmanent on April 1, 1957, was a right of property in respect of which the petitioners have a guarantee under Art 19 (l)(f). The provisions in ss. 3,4 and 6 of the impugned Act, 1958, in so fa.r as they laid down that in certain circumstances a tenant shall be deemed to be a per manent tenant from the date of the Taluqdari abolition Act, 1949, adversely affected the right of the petitioners with retrospective effect; it practi cally wiped off a large part of the purchase price which the petitionol"!I wore entitled to get. Ifs. 6 of the impugned Act, 1958, is to be tested on the touchstone of reasonable restrictions in tho interests of the general public as laid down in cl. (5) of Art. 19 of the Constitution, it must be held that it does not impose a reasonable restriction. We have found it very difficult to understand why and l10w it is re11.11onablc that the tenure-holder must make an application within six months from the commence me::t of the impugned Act, 1958, for a declaration that his tcnunts arc not pei:manent teuants. Tho pctitiont>rs have thr<'<' kinds of tenants-permanent tenants, prott-cted tenants, and ordinary tenants. On April I, I \157 the petitioners ceased to be tenure holders in respect of all tpnants other than perma nent tenants and berame •·ntitled only to the pur chase price under s. :l2H. If any tenant claimed on that datti that he was a permanent tenant, he had to e~tablish his claim in accordance with s. 83 of the Revenue Cude. Such a claim could be conte.i ted by tho tenurc·holder whenever ma.de by t~e tenant. But liy tho impugned Act. l!J58, all this was changed, and unless the tenure holder mitde an application within six months of the commence ment of the impugned Act, 1958, he was uot in _a position to say that a particular teuant who was m pOSl'ession of tonure·laud for continuc•us period agg regating twelve years on und Lefore August 15, - IHI M alrarana Shf'i Joyvamsinghji Ranmalsint"i• etc. •• Ti1' Stai. ofGi!iaro v., J. 2 S.C.R. SUPREME COURT REPORTS 439 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 rin the coming into force of the impug· ned Act, 1958. Obviously, the tenure-holder ha.d to anticipate that all his non-permanent tenants might claim to be permanent and therefore it was incum bent on him to make an application for a determina tion that none of his non-permanent tenants were pArmanent, 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. '6 of the impugned Act, 1958, is, in these circumstances, an 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 bJ placed on Art. 31A of the Constitution. That Article, in our opinion, has no application to the present cases, inasmuch as there was no acqui sition by the State of any estat.e 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 tenureholders and the tenants h&d 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 cer tain 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 1961 JI-- S/rri J..,.atsillghji &-IJM,lrji ,,,, v. n. SW. of Gujaral DasJ. 440 SUPREME COURT REPORTS [1962) SUPP. rights. Therefore, Art. 31A has no application and cannot sa.ve the i'llpugned Act, Hl;"i8. It has been contended before us that while implementing the provisions of s. 5A of tho Taluq dari Abolition Act, 1949, it was found that because of the failure or inability of the t·x-Taluq<lar to produce old records concerning the tenants it was difficult for the tenants to take th" benefit of that provision; therefore, it became necessary for the Legislature to define permanent tenant in such a way that th" tenure-holder might not defeat the provisions of M. 5A. That it was stated, was the rea son for enacting ss. 3, 4 and 6 of the impugned Act, 1958. We lll'e unaLle to accept this argument as oorrect. If the rcason was as stated aLove, t.hon the tenure-holder should have beon given a chance to contest the claim of the tenant wLenever he ruadc a claim of being a permanent tenant. It appears to us that the true scope and effect of tho provi sions in ss. 3, 4 and 6 of the impugned Act, 1958 is to con~iclemuly rcducn the purchase price payable to the petitioners and this has been secured by the device of def ming permanent tenant in sueh a way that the tenure-holder has no real opportunity of contesting the claim "f the tenants. In that view of the matter, the un pugned Act, 1958, does not fa.II within any entry of List II or List III of the Seventh Schedule to the Constitution and is a piece of eolourablc legislation. What is colourable legis· latiou was explained Ly this Court in K. C. Gaja'[Jati Narayan Dro v. 1'he 81!1te of Orissa ('). This Court said that the idea conveyed by the expression "coloura.ble legis!Mion" is that although apparen tly & lagislature in passing a statute purported to within the limits of its powers, yet in substance and in reality it transgressed thoso powers, the trans gression 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 th(• guise of defining a (I) Ll954J S.C.R. I, p-11. 11/dl Maharana Shrt JayvJntsi~hji RanmUsinghji tic. v, The State of Gujarat DaJ J. 11/. udholkar J. 2 s.c.R. SUPREME COURT REPORTS 441 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 t.hese 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 posses ~ion of taluqdari land are unconstitutional and void. Under the guise of changing the definition of a permenent tenant, they really take away a large part of the right of the petitioners tQ get the purchase price under s. 32H of the Tenancy Act, 1948, from some of their tenants. The petitions must accordingly be allowed with costs. As the petitions have been heard together there will be only one hearing fee. MUDHOLKAR, J,-Writ petition No. 120 of 1958 was heard along with writ petitions Nos. 147 to 158 of 1958. But a common argument was advanced before us on behalf of the petitioner in each case by Mr. G.S. Pathak ruid by the Solicitor General on behalf of the State of Gujarat and by Mr. Nathwani on behalf of the tenants. The petitioners in these cases were Talukdars of certain villages in that part of the f orner state of Bombay whioh is now the State of Gujarat. The rights of Talukdars in different parts of Gujrat to Talukdari villages were regulated by the Ahmedabad Talnqdars Act,.1862 (Boru. 6 of 1862) and the Broach and Kaira Incumbered Estates Act, 1881 (XXI of 188l)and theGujaratTaluqdarsAct, 1888. The Bom bay Taluqdari Tenure Abolition Act, 194~ (herein re ferred to as the Abolition Act) repealed the afore. mentioned Taluqdari Acts and s. 3 thereof abolished the Taluqdari tenure wherever it prevailed. That section further abolished all incidents of the said tenure attaching to any land comprised in a Taluqdari Estate. Section 5 of that Act made all the taluqdars "occupants" of the lands in their IHI Md••n• Sltri .1.,....,,u.,11;1 8-•I. U.1Ajt 1ie •• 7A. ~lal1 o/Gfljar•t MwJ/oo/ldr .I. 442 SUPREME COURT REPORTS [1962) SUPP. occurriug possession, within the meaning of the expression "occupant" the Bombay Land Hevenue Code (hereafter referred to as the Code) . Like "Occupants" in other areas of the Bombay Statlj theHe persons became liable to pay land revenue to the Government subject to the prnvisions of cl.(b) of sub-s.2 ofs.5. Nothing, however, turns on these provisions. Section Hi of the aforesaid Act makes the provisions of the Code applicable to taluqdari villages subject to certain modifications with which we are not concerned. The validity of the Abolition Act was challenged before this Court but that challenge failed vide Dhisubha Detii.singh Gohil v. The State of Bombay('). Vast areas of lands in these villages were in the oocuption of inferior holders, permanent tenants, proetected tenants, ordinary tt>nants iitc. It is not disputed that the provisions of Ch. VII of the Code which deals with "superior holders and inferior hold ers" govem the relationship between tho tenure holders and prrmanrnt tenants. In addition to these provisions there are those in the Bombay Tenancy and Agricultural Lands Act, 1948 (hereafter referred to as the 'Tenancy Act,') which deal with the relation ship between landlord and tenant and till April 1, 1957, it is these provisions which execlueively governed the relationship between the tenure-holder and tenants other than permanent tenants and ·It would be necesaary to refer to inferior holders. some of the provisions of this Act while dealing with the arguments advanced before us. By Bombay Taluqdari Abolition (Amendment) Act l of 1955 which came into force on March l, 195:., the Abolition Act was amended and a now provision was added therein, viz : H. 5A the reliivent portion of which rracls thus : "(I} Notwithstanding anything coi.tai11~J in il<'Ction 5 a permanent l.l·nant in posscljl!ion ll) {1955] J.S.C.R. 6~1. 1961 Maharana SI.ti J syvanlsinghji Ranmalsinihji tlc. v. The Statt of Gtgal'td Mudholkar J. 2 S.C.R. SUPREME COURT REPORTS 443 of any taluqdari land, and also an inferior holder holding such land on payment of annual assessment only, shall be deemed to be occupants within the meaning of Code, in respect of such possession and shall be primarily liable to the State Gqvemment for the payment of land revenue due in respect of such hnd, and shall be entitled to all the rights and shall be liable to all the obligations in respect of such land as occupants under the Code or any other law for time being in force : · Provided that- tenant shall be to the rights of an occupant in entitled respect of such land on payment taluqdar or the cadet as the case may be :·- (a) such permanent (i) of the occupancy price equivalent to four multiples of the assessment· fixed for such land, and (ii) for' the extinguishment or modi. fication of any rights of the taluqdar or cadet, as the case may be, including the right of reversion in the lands, of a further sum equivalent to two multiples of such assessment ; x x x (2) The x conferred under sub section ( l) shall not be exercisable after a period of (five) years from the date on which the Bombay Taluqdari Tenures Abolition (Amendment), Act J 954. comes into force. x This section for the first time conferred upon a permanent touant the right to acquire the Htatus of an occupant in respect of the land held by him as a permanent tenant of the tenuer-holder upon pay ment of a certain sum of money as the price of ocoupanoy to the tenure-holder within five years of the commencement of the Amending Act of 1955. x ' 1911 Moharana SMi J "Y""'" ingloj i RaMulsingltji tk• v. Tht Sta/1 of Gujarat MuJJio/k" J. 444 SUPREME COURT REPORTS [1962] SUPP. It was accepted before us that the period fixed by s. 5A has been extended upto 196'~. Section 5A of the Act has never been challenged, and t.he argument before us procrcded upon the footing that it is a perfectly valid piece of law. the year Though the Abolition Act by s. oiA thus conforred upon the pe1 rnanent ttmants in the taluqdari villages the right become occupants, it tenant was. did not define what a perma.nant By an amendment made by Bombay Act XVIII of 1958, it was provided that certain persona would be permanent tenants but that does not really define what a permanent tenant is. This absence of definition of a permanent rlid not, however, create any difficulty ber, ause in Bombay that term has been understood to mean the tenant described in paragaph 2 of s. 83 of the Code. Indeed, in the petitions themselves it is stated that s.83 of the Code defines a permanent tenant. The second paragraph of that section is in these terms : tenant "And where by reason (Jf 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 respectively claim or any usage of the locality as to duration of such tenancy, it shall, as against the immedi· ate landlord of the tenant, be presumed be co-extensive with the duration of tlie tenure of such landlord and of those who derive title under him." L' nrler this section, therefore, a permanent tenant ia one whose tenure is co-extensive with that of hi11 Janilord and a tenant is to be persumed to be such a tenant when by reason of antiquity, the commen cement of the tenancy cannot be proved and there i~ no satisfactory evidence of the •~greed duration of the tenancy or of any usage of the looality a.s 1961 Maharano Sh1i .1 oyuantsint?hJi Ranmal11ing4,ii tk. v. The State "f Gujarat Mudholkar J, 2 S.C.R. SUPREME COURT REPORTS 445 to such duration· The Bombay Tenancy and Agri· cultral Lands Act, 1956 ( 13 of 1956) whioh among other provisions, has amended s. 2 of the Tenancy Act has given a definition of the expression in the new sub-s.IOA thereof but it is not necessary to repro· duce it as no. argument based on it is advanced before us as indeed none could be advanced. That Act made extensive and far-reaching amendments in the Bombay Tenancy Act. Several sections thereof were recast including s.32. Amogst the Provisions added are ss. 32A to 32-R which appear in the second part of Chapter 3 of that Act, dealing with "Purchase of land by tenants" to which we will refer hereafter. By virtue of s.32, sub. s. 1, on April 1, 195/, called the "tillers' day" every tenant, including permanent tenant the other provisions of that was, subject to section and of the succeeding sections deemed to have purchased the tenancy land in his possession from the landlord free of all encumbrances subsisting thereon. Section 87 A, which also was added to the Tenancy Act by the Amending Act of 1956, provi· ded that nothing in the Tenancy Act was to affect the provisions of any of the Land Tenure Abolition Acts specified in Schedule II (which includes the Abolition Act in question) in so f~r as such provi· sions relate to the confirment of the right of an occupant upon a permanent tenant in reapect of In consequence of this the pro land held by him. visions of s. 32-H of the Tenancy Act which deal with the purchase price payable by pe1manent tenants will not apply to such permanent tenant. He would, therefore, have only that right which is conferred upon a permanent tenant bys. 5-A of the Abolition Act. The result of this is that he would not be hound to po.y the purchase price at once under s. 32-H of the Tenancy Act and tan m'I ke his election to acquire or not to acquire the right of an occupant within the period allowed by s. 5-A (as extended from time to time). . \laltar.1nfl Slt'i Jayrant•ittthji R.,,,,../singh.ii de. Y. Tiu Slat1 oJOllja, at MuJJoo/1- J. 44!1 SUPREME COURT REPORTS (1962) SUPP. The records relating to tenancies in taluqdari villages ueed to be mainta.ined by the tenure-holders . It is from these records that information could be obtained as to the nature of the tenancies of tho tenants in those villages. While implementinit the provisions of s. 5-A of the Abolition Act it was found that because of the refu~l. failure or inability of the taluqdar to produce old records concerning the tenants it was difficult for the tenants to take the benefit of that provision. Therefore, the legis lature pa.ssed Bombay Act No. 57 of 1958 ca.lied the Bombay Land Tenure Abolifr1n Laws (Amendment) Act, 1958. The long title of the Act runs thus : "An Act further to define pel"Jl1anent tenants, inferior holders and permanent holclers for the pur poses of certain Land Tenure Abolition la.we and to provide for certain other matters." Section 4 or this Act states who a.re to be deemed to be perma nent tenants for the purpose of the Land 'l'cnure Abolition laws specified in Part J[ of the Schedule to the Act. The validity of this Act (hereancr refE>rred to as the impugned Act) and in particular of the provisions of s. 4 is challenged before us. We will reproduoe hereafter this section and certain other provisions of the Act which have a bearing upon the arguments addrt·ssed before us. Aocording to l\lr. Pathak ~- 4 of the Act in effect expands the categ«;>ry of permanent tenants by bringing within its fold persons who were merely ordinary tenants prior to the enactment of this provision. So far BB an ordinary tenant is concerned it is Mr. Pathak's contention that on the tille1 s' clay he bec,\me an occupant of the land or at any rate the landlord (or tenure-holder) lo~t his interest therein and that the latter became thereafter entitled to receive from the tenant the purchase price by the combined operation of a. 32(1) arid s. 32-H(l) (i) of the Tenancy Act. Section 32(1) so far a.a material runs thus : 1951 Makar1.na Shri Jayvant1inghji Ranmalsinghji etc. v. The State of Cujora M udholkQr J, 2 S.C.R. SUPREME COURT REPORTS 447 "On the 1st day of April, 1957, (herein after referred to as ',the tillers' day') every tenant shall, subject to the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encum brances subsisting thereon on the said day, the land held by him as tenant, if (a) such tenant is a permanent tenant thereof and cultivates the land leased per· sonally ; (b) such tenant is not a permanent tenant but cultivates the land leased personally ; (i) the landlord has not given notice of termination of this tenancy under sec tion 31 ; or (ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29 for obtain ing possession of the land ; (or) (iii) the landlord has not terminated this tenancy on any of the grounds speci fied in section 15, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29, for obtain ing posseBSion of the lands ; " St>ction 32-H, so far as material, runs thus : "(1) Subject to the additions and deduc tions as provided in sub-sections IA and IB, the purchase price shall be reckoned as follows, namely:- (i) In the case of a permanent tenant who is cultivating the land personally 1961 •• M ohar.itta Sltri J 01i antsingltji Ra111Mls1nghji tlt. Tht )ltJtt ofG1;jaral ]Jfuah.ol/ta, J. 448 SUPREME COURT REPORTS [1962) SUPP. the purchase price shall be the aggre!rnto of th!' following amounts, that is to say,- " (ii) In the case of other tenants the purchase price shall be the aggregate of the following amounts, that is to say,- (a) such amount as the TribunRI may determine not being less than 20 times the assessment and not morn than 200 times the asseBBment ; " According to the petitioner in W. P. 120 of 1958 the total area of land held by him in his vilfa.ges is 02,588 acres out of which only 703 acres are in hi~ personal cultivation and the rest is held by tenants who are non-permanent tcnantP. He contenrls that by the operation of s. 4 of the impng· ned Act most of these persons are likely to be placed in the cate~ory of permanent tenants with the result that the petitioners would be compelled to accept purchase price at R much lower rate, that is, they would get only six times the assessment instead of bctwPen 20 and 200 times the assessment, ns may bn determined by tho tribunal. According to him his estimated lo88 would be over Rs. 14,00,000. On i:Jehalf of the State it is denied that the petitioner would be put to any such JOBS. The substance of the argument of :\Ir. Pathak iR that the right to claim compensation under s.32H(l)(ii) from the ordinary tenants having v'sted in the petitioner it cannot be taken away by the Bombay legislature by extemling the definitinn of "permanent tenant" so as to include within it thost> who were merely ordinary tennrts on the "Tillers' Day". He formulated his grounds of attack on the legislation as follows : (I) The Bombay le11islature was not com petent to enact the impugned Act as the eubjecl 1961 M 11harano Shti J ayvantsingli:ji Rt:.nrnalsinghji e1c. •. T~ Stati oJ Gujar•t Jlutilr.olk•) J. 2 S.C.R. SUPREME COURT RBPORTS 44\l matter thereof is not covered by any entry in List II. (2) The impL1gned Act is colourable legislation as it amounts to a device adopted for the purpose of confiscating money, the right to claim which had vested in the land lord as purchaser on April l, 1957, and that the State legislature had no power to make a law with respect to this matter. (3) The impugned Act being outside the legislative competence of tho Bombay legisla ture, taking away of the petitioner's mowey was a contravention of A.rt. 31(1) of the Cons titution. (+)The acquisition of money is not for a public purpose as taking money from one and giving to another is not a public purpose. (5) Even assuming that the acquisition was for a public purpose no compensation has been provided by the Act or could indeed be provided by the Act and, therefore, Art~ 31(2) is contravened. (6) The impugned Act contravenes Art. 19(l)(f) of the Constitution inasmuch as it authorises the confiscation of money. (7) The Act infringes Art. 14 of the Cons titution as there are other classes of tenure holders similarly situate to whom the impug ned Act does not apply. All these grounds of attack, except the last, rest upon one assu~tion and that assumption is that s. 4 of the impugned Act extends the definition of permanent tenants .anrl brings within.its fold pe.rson~ l, 1957, that 1s, tho "tillers who were till 4.pr1l tenants. . If this. assumption is day'', ordinary invalid then the whole edifice w Inch ilir. Pathak tumble down. Let us has built upon it muRt JHl MM.-8/rti 1..,_m. loji ~.,,.J; 11<. v. n.si-.o/~" --JI~]. 450 SUPREME OOURT REPORTS (1962] Slfl'P. impugned oonsidcr what exactly s. 4 of In order to appreciate Mr. Pathak's Act does. argument p~operly it would be desirable to reprodu ce that section as well as ss. 3 and 6. These sections run thus: Section 3 : "A person she.II, within the meaning of the relevant Land Tenure Abolition law, be deemed to be an inferior holder, a per manent holder or, as the case may be, a permanent tenant, on the date of the abolition of the relevant l1t.nd tenure, if hie name has been recorded in the record of right.a or other public or revenue records as an inferior holder, permanent holder or permanent tenant reRpect of any tenure-land- ( a.) on the date of the abolition of the relevant land tenure, or (b) in pursuance of orders issued during the course of any proceedings under the relevant Land Tenure Abolition law or, as the case may be, the Bombay Land Revenue Code, l879- (i) before the commencement of this Act, or (ii) after the commencement of this Act in cases in which inquiries were pending a.t the commencement of this Act, or /c) in pursuance of an order issued by the Mamlatdar in respect of an entry under section 6 of this Act." The relevant Land Tenure Abolition law for our purposes is the Bombay Tenancy Ab8lition Act and tenure land means taluqda.ri land. Section 4 runa thus : "For the purposes of the relevant Act specified in part I of the Schedule, a person- 1961 JI o/HUtlU .S .. t JoytJonlsintJJi Ranmol 1U.,ltji .1tc. v. Tl:e ~tat• of Ovj•at lrl ut/Aolkar J, 2 s.c.R. SUPREME COURT REPOR'l'S 451 (a) who on the date of the commencement of that Act was holding any tenure land, and (L) 'vh1> and who~c predecessors in title, if any were, immediately before that date for such cl)ntirnrnm periods as aggregate to a total coutiBuous period of twelve years or more, holding the same tenure-land or any other tenure-land, as a tenant or inferior holder under the tenur~·holder for the time being on payment of an amount cxr<'c·ding the assessment of the land, shall unless iL is proved by the tenurc holdcr that he would not have been a perma nent tenant on the La~is of continued possess ion of the land under clause {b ), be deemed to be a permaBPnt tenant of the land under clause (a) and all the provisions of that Act shall apply to him as they apply to a permanent tenant." Section 6 runs thus : ''( 1) The rights of an inferior holder, per manent holder or pt·rmanent tenant under sections 4 aud 5 shall be entered in the record the tenure-holder applies in of rights unless writinir to the Mam la tdar within Rix months from the date of the commencement of this that any holder or Act for a dcelaration tenant under him is not an inferior holder, a permanent holder ur, as the case may be, a perma!ll·nt truant. (2) Any such application shall be disposed of as if it were an u pplicatfon in respect of a dispPtcd case under secti(JJ1 135D of Bombay Land RcY<'nue Code, 1879." Thus according to s. 3 a person whose name is recorded in the rrcord of rights or other public reve11110 rrcords as a permanent tenant in r<'spect of tenure land he will be d~emod to be a permanent IHI 11-...S1rt1 J,,,-.... ~ ~iJi11<. •• Bwa , <J ,., 452 SUPREME OOURT REPORTS (1962] SUPP. tenant within the meaning of tho expreseion occurring iu the AbQlition Act. As already stated, for 11Scertaining the meaning of the expression ono has to go Lo para. 2 of s. SJ of tho Code. No doubt, it merely mises a prcsump· tion as to permanent tenancy but from that para. we ca.n deduce tho essential feature of a. permanent tenancy. tenants, a.t The argument is that s. 3 being n deeming provision in so far as the Abolition Act is concerned, gives n~w definition of a permanent tenant. What the section says is that certain persons will be deemed to be pcrmanont tenants for the purpose of the Abolition Act. Who a.re these persons ? Are they chosen arbitrarily nnd put in that class though they could not possibly have been so put under tho previous law ? A bare perusid of clauses (a) to (cl of s. 3 shows that only tenants who have been found on enquiry to be permanent lea.at presumptively, are to be rogarded a.s permanent tenant, for the purpose of the Abolition Acts their status as permanent tenants can no In regard to persons whose longer be questioned. ca.sea fa.II under clauses (a) and (b) all that tho BeCtion has done is to take away the right of the tenure-holder to challenge in a collateral proceeding their status as permanent tenants. As regards tenants falling under cl. (c) what the provision has done is to require the tenure holder to object to the recording 0f such person as permanent tenant with· in a certain time before the mamlat<lar. If he fails to a.ya.ii h!mself of the opportunity tho ~loor is shut to hl.8 saymg· thereafter that the person 18 not a per· manent tenant. It is to be noted that tenants who are to bo regarded a.s permanent tenants for the purposes of the Abolition Act have been so found in enquiries held by revenue courts and not persons arbitrarily selected or porsons who could not reaso nably be regarded a.s permanent tenants. 1911 -. M.a/rar ... Shrl J ., ... 1sU.,lrji Ramnalsint/tji fla, V.· T"4 Slale ol G•jor# Jiu J, 2 S.C.R. SUPREME COURT REPORTS 453 The inclusion of persons as permanent tenants in the register of rights may be prior to the com mencement of the Abolition Act or after its com mencement, The proceedings for the inclusion may h'.Lve been instituted prior to the commencement of the Abolition Act or may be instituted under the impugned Act. If they hold in favour of the tenant he will be deemed to be a. permanent tenant. The landlord cannot then be permitted to say ·that he is not a permanent tenant. It is difficult to see how this disability imposed upon a landlord to dispute that a person is a permanent tenant be tho fact regarded as enlarging the definition of a perma· nent tenant. It is true that s. 135.J of the Code granted correctness oC an entry in the record of rights in colhter.al proceedings without reference to time and that right is abrogated by the impugned Act but even so doing that cannot be regarded as taking away a vested right. Within what time, in what circumstances and in which manner a particular fact is opJn to challenge is only a matter of procedure and it cannot be disputed that there is no vested right in procedure. landlord a right to challenge , The effect of the provision thus is that in proceedir gs under the Abolition Act for conferral of' a right of an occupant the claimant's status as & permanent tenant cannot, if he satisfies the require ment of any of the three clauses of s. 3 of the impugned Act be open to question by the tenure holder. Would the position have been any different if the impugned Act had not been passed ? Let us consider s. 5A of the Abolition Act by itself. Suppose a person recorded as a permanent tenant in the record of rights claimed to enforce the right con ferred by this section to obtain the right of an occupant in proceedings thereunder. These procee dings would be taken before a revenue officer and he would be bounrl to act on the entry in the record 1961 M •4.trac1 .5'1-i J~gAji R.....Uiog!ji tlO. •• n. ,,_ •f Gig,,., 11/udh.I '. .. J. 454 SUPR.EME COUHT REPORTS [1962] SUPP. of rights until and unless it was lawfully Aubsituted by another. No suit iiea for correcting an entry in the record of rights. Only in a collateral proceeding could it have boon challenged and the jurisdiction \Vhere no such suit or of a civil court be invoked. proceeding is pending when the proceedings under s. 5A are going on the tenure·hol<lL"r cannot be perm itted to go behind tho entry. However, as an additional s<>f,·guar<l the Abolition Act has provided ins. 5A itself a remedy and that. is to approach the State Government or an 11uthority empowered by it in this behalf for deciding to question. Clause (b) of s. 3 of tho impug:ncd Act, as also el. (c}, expr~ssly contemplate cases where there is a dispute as to the status flf a pcl'!!on and if it has been decided in favour of the person claiminz to be a permanent tenant be is to be deemerl to be a prir ma.nent t<•nant for thn purposffi of the Abolition Act. True that ther~after tho tenure-holder cannot chall- · enge the fact oven in a collateral proceeding but that would ho by rPason of the prm·isions of a. 5A itself which havo not been challenger!. No doubt after the c.immcncement of the imlm!.!nod Act no new proceedi11~s under s. 5A of the Abolition Act a.re permi~~ib]d hut that is b'·eau~) an alternative remedy is available undor s. G of tho impugned Act. We must now examine s. 4 in d~t:i.iL, It pro vides that a pPrdon who, on the date of the com mencement of the Abolition Aot 1v11~ h·.ilding a.ny tenure lanr! :~ml who, and whose pct·rlccos~ors in title, if any, wcro immediately before that date "for such continuous periods 1\$ aggregat: to a total coneinuous p<'riod of 12 y~ars or m·ir"" holding the same tenure hmd or any oth•·r land as a tenant be dee.ned to be a permanent tenant "unlrss it is proved by tho temmi·holder that ho would not have been tPnant on the bnsis of continued a permanent possesssion of the lam! undN clause (b)". It ia difficult to appreciate how it expands the definition of permi.nent t"nant. True, it says that aucJJ .. 19111 •• Ma.larOM ""; J'!)loantJ~IJji Nan"nolsiftthJi 1'0. Tht Stall of Gu1ar•I Mui/Ml/ear .I. 2 S.C.R. SUPREME COURT REPORTS 455 tenant will be deemed to be a permanent tenant but it does not stop there. It goes on to say that he will be so deemed unless the tenure-holder can show that he cannot be so deemed ! What does s.4 mean when it says that a tenant shall be deemed to be a permanent tenant ? Clearly, the legislature had in mind the provisions of s. 83 of the Code which by virtue of s. 16 of the Abolition Act apply to all ex-taluqdari villages. To repeat, the. impug ned Act does not define "permanant tenant" any· whero and that it is from para 2 of s. 83 of the Code that we must infer that a person whose tenanoy is co-extensive with that of the landlord is a per manent tenant. A tenure-holder can get rid of the presumption raised by this provision if he can show the precise date of the commencement of the tenancy or if he oan show that the tenancy is ter· minable in particular circumstances or on a parti cular date. We find nothing ins. 4 1which directly or indirectly modifies the requirements of the defi. nition of "permanent tenant". No doubt, para 2 of s. 83 of the Code sets out certain conditions for raising a presumption of permanent tenancy and s. 4 of the impugned Act modifies them. But by so, it is difficult to see how it alters the basic requirements of a permanent tenancy as deducible from para 2 of s. 83 of the Code. All that s. 4 does is to alter the conditions for raising the presumption but that cannot amount to altering the definition of "permanent tenant," According to Mr. Pathak, however, the section permits the landlord to prove only that the tenant and his pr.idecessors in title were not in possession for a continuous period of twelve years or more, on . the date of the commencement of the Abolition Act and that if they fa.ii to prove this, the presumption raised by the section would be irrebuttable. Thns according to him s. 4 makes a person who ie in pOBBession as a tenant for over twelve years, a permanent tenanj; even if the date of the commence- IHI JI daro11't 8/wi J tpDilllhi•t~ji ll,,,.dsi"l'•ii 1tc. •• 1lt. St•t• •I Geforat "'.dAolJ; •• • • 456 SUPREME COURT REPORTS [1962) SUPP. ment of his tenancy was known or the duration thereof was for a definite period. In our opinion, reading the section that way would lead to an absur dity. It is admittrd on both bands that s. 4 is intended to be uvailed of only in proceedings under 11.6 to ·which a landlord would be a party. Clause (b) of that section which enacts the second condi tion whir.h has to he fulfilled by a person before he can avail himsd f of the prcsum ption under that section prescribes the minimum "duration" of a tenancy and docs not deal with the qurstion of its commencement or terms. Either the tenant fulfils that condition or he does not. If he does not fulfil it no further question arises and he must be deemed to be an ordinary tenant and nothing more. There· fore, if the tenant satisfies tho condition, it would be meaningless to give to tho tenure-holder an opportunity of disproving th') very thing which had been proved in his presence and upon proof of which the tena.nt has been able to enlist the pre eumption created by the section in his aid. Such a construction would render the provision absurd or at best useless. If the section was capable of being read in the way Mr. Pathak wants, it would read thus : "A person who has been in possession of tenure land at the commencement of the AbolitionAet and was holding the same or any other land undtr the same tenure holder for a continuous period of 12 vears he shall unlC88 the tenure holder proves that he was not holding the land or lands for the conti nuous period of i 2 years, be deemed to be a perma, nent tenant". Surely this would be making nonsense of the section. We are wholly unable to accept such a reading. We think, therefore, that the t.enure·holder can prove under the section that continued p086688ion tenant would not have been a permanent tenant for other reason~. These other re.aa<ms must be the reasons which in spite of the basis of twelve years 1H1 MaAu .. • Slri .Tayo.nts~lefi RanmdsinthJi ttc. v. ne Stat1 o/011jcro Jfudhtlbrr .T. 2 S.C.R. SUPREME COURT REPORTS 457 length of possession would show that he is not a permanent tenant becauae the tenancy commenced at a certain time or because a term had been agreed upon for the tenancy or fixed by usage. It may be, as the learned Solicitor General says, that the language used by the legislature is not felicitous. Even so, we think that it would not at all be far-fetched to construe it as meaning that the tenure-holder has the right to establish for getting over the presumption, that the tenancy originated at a definite point of time or was of a finite duration. The language used by the legisla ture is in our view capable of only such construction. tenure-holder Then it is said that even ifs. 4 is construed as giving an opportnnitv to the prove otherwise .than by disproving that the tenant had been in continuous possession of land under him for twelve years that he is not a permanent tenant, that opportunity is i!Iusory and really non existent and, therefore, s. 4 in effect extends the definition of a permanent tenant. This contention is based on s. 6 of the Act which, it may be stated gives the tenure holder a period of six months from the commencement of the impugned Act to move the Mamlatdar in writing for a declaratioa that the tenant is not a permanant tenant within It may be Mated that the respondents concede s. 4. thats. 6 has that effect. We are, however, unable to agree that s. 6 makes the opportunity to rebut the presumption raised under s. 4 by continuous possession twelve years illusory or non-existent. We have first to point out that we do not fiind this point taken in the petitions. Secondly, WP. appreciate why the six months' time prescribed should be considered as if no time had really been given to the tenure-holder which would be the contentioJl, effect of accepting the petitioners' 1961 M damM Sitt; Jd:Jl1Gt1tsiltt/tjl &n..isi•tlt.i; .1e. v. TA. lf'"'4 •J Giij4'ot M ""1tolluz. J • 458 SRUPEME OOURT REPORTS [1962] SUPP. Sinco six months is not a. short period, within tha.t time it is ea.sily possible for the tenure-holder to move tho required application. Then it is sa.id that it is illusory because there may be a very large number of tenants and the tenure-holder could be required t.o make numerous applications. Even so, wo do not see why it should not have been reason ably possible to lodge these a.pplica.tions within the period allowed. All that the tenure-holder has to do is to uame the tenant oonoerned a.nd state that ho wants a declaration that the tenant is not a. p~rmaneut tenant. It is a.Isa ea.id t.hat the tenure holder hns to make tho application in anticipation of tho te uant making a claim to be a permanent tenant. But we a.re unable to appreoia.te how this by it.self ran mako the opportunity to rebut non e:i:istent. We find no practical dificulty in the tenure-holder ma.king the application in antici pation. Furthermore, the question has to be considered according to the rca.litirn of the case. It i8 ndmitted in the p~titioners' affidavit in opposition that the propa.ration of thti record of rights in r<'spect of the tenants in the ta.luqdari villages commenced soon after the Abolition Act came into force, that is, soon aft.N· August I 5, I 950. Many of tho tenants havt' already been recorded as permam•nt tonants and since thi-< could only have been dono with reference to the provision of s. 83 of the Code the petit ionrrs can have nn grievance against. such entriris F11rth,,r, R. :l(b)(ii) of the impu>!llt.'d Act takes into ac~01111t the fact t.hat the proc""rlin·~s in respect of the pr<•paration of the r .. ~ord of rights were prmding at. the commrncement of this Act. In these proc•·!•tiings the tenure holdor must already have objcctl'd-of course where he thought fit-to the ten mt being recorded as a permanent tenant Th<•sc ag:1iu would covN quite a numbN of ca.ees. It is only in rag:ird to tho remaining cases that 19/Jl Afaharana 8hri J oy1/11/.tsingAji Ranm1laingltji 118. •• The State ofGqjaF•t Mudholkar J, 2 s.C.R. SUPREME COURT REPORTS 459 applications under s. 6 would be required. We think it right also to point out. tha.t the rights under s. 4 of the impugned Aet can be claimed by a tenant who pays for his holding an amount exceeding the a~sessment of the land. This we suppose would further reduce the number of tenants to whom s. 6 would apply. We have no materials on which to show that these would form a very large number. As we have already stated the petitioners not having raised the present point out of s. 6, they have not given any materials to show the oases of how many tenants a.re outstanding. Therefore, on the facts on this case, the petitioners cannot legiti mately urge any practical difficulty in making appiioa tions under s. 6. We may also state here that many cfaims by tenants to be permanent tenants must have long a.go been raised because under s. 5A of the Abolition Act, as originally framed, a tenant had fivo years from its commencement, that is, from August 15, 1950, within which to exercise his right. At the date of the impugned Act this period had been extended upto February 28, 1960. The impug ned Act came into force on Juno 10, 1958. There· fore, at the date of the impugned Act the tenant had about one year and nine months within which to exercise the right given to him by s. 5-A of the Abolition Act. It is apparently for this reason that s. 6 of the impugned Act fixed the period of six months. It is true that later the period under s.5-A was extended but that was by Act XVIII of 1960 which ca.mfl into force on April 8, 1960 and had, therefore, no bearing on the legislature fixing tho time under s. 6 of the impllgucd Act. Ancording to one of our brethren the definition of "permanent tenant" is enlarged because even though the point of time when the tenancies of persons over certain lands commenced were known, the.se persons a.re also inclu <led in the definition of "permanent tenant" under the impugned Act and cl, (b) of s. 4 is said to do this. We may point out 460 SUPREME COURT REPORTS [1962] SUPP. /Jlcfln- Stw; J~,~llii a..;.;1.;.,AJi 1te. •• Tloc S"™ o,/ CujcrllA M,,._/U.J. that this wa.e not one of tht> arguments advanced at the ~ar ~nd the respondents had no opportunity of meetmg it. That apart, it is clear that this clause h.as to be read with Exp!. II to s. 5-A of the Aboli tion Act. As already stated s. 5-A was not attacked a.a unconstitutional. Explanation II thereto provides a.a follows : "For the purpose of this section, a perma· nent tenant includes a tenant who holds a ta.luqdari land in exchange of another taluq dari land of which he was, and but for the exchange would have been a permant tenant and who has been in continuous possession thereof since the date of exchange." We may assume that the Explanation extends the definition of "permanent tenant" but its validity has not been ohallenged by tho plaintiffs. Clause (b) of s. 4 of the impugned Act merely takes note of the practice in tenuro villages of changing the holdings of tenants frnm timo to time and it is apparently for this reason that there was no chal lenge to s. 4 of the impugned Act on this ground. It is only the persons who or whose predecessors in tenure villages from time title were tenants in immemorial who will get the benefit of tho impugndd Act and no others. No new persons will thus be brought in by s. 4!b) and so it is idle to say that it enlarges the definition of permanent tenant. It is said that s. 4 widens tho definition of permanent tenant by including tcnantR the com mencement of whose tenancies is definitely known. But doos it do that ? Tho tenant in a tenure village is a person holding tenure land. It is not neeessnry that he and his predccrssors in title should have been holding tho Ra.me parcel of lnnd since tho commencement of their tenancy. Tac practice of exchanging parcels of lands prevailed in tenuro vill&.ges and Exp!. II to s. 5-A has been founded upon it. Section 83 of the Code refers to the per- • 1661 Jla/rar.,,,. li/J,i J aYfJants inhtji R11nma/JintAJi 1k· v. The St•te 1/G11i•• Mwlh•lkar J. 2 S.C.R. SUPREME OOUR'r REPORTS 461 manency of the relationship of landlord and tenant and not to the existence of permanent tenancy with respect to a specific parcel of land. These provi sions have to be read along with s. 4 of the impug ned Act because this Act cannot stand or was not intended to stand by itself. It adds certain provi sions to the Abolition Act and the Code and these provisions must necessarily be assimilated to those of the main Act. Looked at this way it is clear that what s. 4 contemplates is a person the com mencement of the tenancy of whose predecessors in title is unknown but who has been in possession of the same or different parcels of tenure land for a period of not less than twelve years prior to the commencement of the Abolition Act. It may be possible to say when he came into possession of a parcel of land •X' where it was taken by him within or more than twelve years of the commencement of the Abolition Act but that is not the same thing as saying that the relation between him and tenure h older came into existence on that date for the first time. If in fact it came into existence more than twelve years before the Abolition Act came into force, may be with respect to different parcels of land from time to time, he is entitled to be regarded as a permanent tenant, unless of course it can be shown by the landlord that he or his predecessor in title was first inducted as a tenant in the tenure village at a definite period of time or that the tenancy was of a finite duration. Thus, in our judgment, s. 4 of the impugnetl Act does not expand the definition of a permanent tenant. Therefore, it cannot be said that it has the effect of taking away from the land.lord any property which had vested in him on the tillers' day. It may be thitt a tenant who, prior to the enactment of s. 4, waa merely recorded as an ordi nary tenant because he could not show that the origin of bis tenancy was lost in the mist.a of anti- JY61 Al altaran I 5h, 1 J •youantJingly i Ilamal, inghji 1tc. •• 7 /,. Skt1:1fGujora1 Mw/Nillt111 J. 462 SUPREME COURT REPORTS [1962) SUPP. quity and that now availing himsolf of this provi· sion, h" can get himself recorded as a permanent knant by showing his continuous possession for tw..!v<· yca:·8. llat s. 4 does not, as we read it, say that he b~cozncs a permanent. tenant in these circum stances in every ca,c. He would not become one if the landlord shows that his tenancy commenced on a particular date beyond those twelvo years or is of a. finite duration. Section 32H( I) does not confer upon the land lord the right to claim the price of occupancy at tho rates prescribed in sub·s. (!)(ii) from a person bocaus0 he is recorded as an ordinary t~nant but only from one who is in fa.ct other than a perm& If, in fact, ho was a permanent nent tenant. tenant, or can be presumed to be a. permanent tenant though till the coming into force of the impugned Act he was not recorded al! such no right to claim tho price of occupancy on the footing that he is not a permanent tenant of tenure land vested in the tenure.holder by virtue of that provision. Section 87-A of the Tenancy Act renders s. 32H(l}(i) inap· propriate to such a tenant. No question of infringe· ment of the right under Art. 19( 1 )(f) therefore arises in such cases. • ,. It was also said that s. 6 of the impugned Act is void because it puts an unreasonable restric to hold tenure-holder's tion upon l!J( 1 )(f) of property and, therefore, offends Art. tho Constitution. This point does not appear to have been taken in the petitions. In any case, if our. construction 0f s. 4 is right, then tho impugnP.d Act woulJ be saved by Art. 31.A of tho Constitution and ita validity "vu Id not bf. open to attack on tho ground that it violated Art. 19(l)(f) of the Consti tution. Furthermore, it is difficult to appreciate how the tenure· holder's right to hold prorrty is aft'ected by s. 6. His right of property wit which we are 1961 Maharana SMi J ayDOntsingllji RQ.Mt.a/singhjl ete. v. The Stat. of GujM•I Jludlrolfar J, 2 S.C.R. SUPREME COURT REPORTS 463 concerned, is as occupant of certain land having some permanent or other tenants under him. Sec, tion 5-A of the Abolition Act gives the permanent tenants the right to convert themselves into occu pants and thereby cease to be tenants of the tenure holder. The validity of this provision is not at all challenged. A tenant may claim the benefit under this sectio11 only if he establishea that he is a perma nent tenant. It is plainly conceivable that in many oases the tenure-holder may dispute that the tenant is a permanent tenant. On such dispute being raised, the tenant has to prove that he is a perma nent tenant. All that s. 6 d<iJeS is to fix a time limit within which the tenure-holder shall have the right to dispute that certain permanent tenants are tenants. That does make those not permanent wh() were not permanent tenants, such tenants. Therefore, s. 6 can in no way be said to affect the tenure-holder's right to property. Further, it would appear that in most cases the tenure-holders themselves including the peti tioners, have actually applied to the mamlatdars for a declaration in their favour under this provision and those applications are pending. The learned Solicitor-General informed us that as a matter of fact upon the basis of the records made available by the tenurfl-holders tentative entries were made in the record of rights immediately after the coming into force of the impugned Act and that thereupon the tenure-holders have applied to the mamlatdar well within six months for a declaration under that to him the section provision. Thus, according affords and has afforded a real opportunity to the tenure-holders to rebut the presumption created by s. 4. We agree with him. To summarise, the position is that s. 4 of the impugned Act by merely enacting the presumption does not take away any property of the tenure-holder. His property such as it is, is left in tact. That section JHl JI ....,.on• Siu i ]1('1t4ntsin3'iji Ri.tune/Jiri9h;I ttc. v. Tiii SW. of GujaroJ lludllo/hr J. 464 SUPREME COURT REPORTS (lg62) StrPP does not confer any new property upon a tenant. It only comes to the rescue of a permanent tenant who is fac<'d with the tMk of proving the nature of his tenancy, by 1;.i.ising a presumption of permanency in his favour. If in fact his tenanc,v is not perma nent ar.<l has bePn extinguished by law but he is tentatively recorded or is sought to be recorded as permanent, the landlord can, in a proceeding under s.6( I) rebut the persumption by producing the documents in his possession or otherwise that the tenancy is not in fact permanent and, therefore, has been extinguished by the operation of s.32(1) of the Tenancy Act. If ho proves this he will be entitled to claim compt·nsation or purchase money at the rates permissihle under s. 32H(l)(ii) of that Act. That right of his is not affected in any way by the impugned Act. If he does not succeed in establish ing that, then ho will be only entitled to get pur chnse price at the rate provided in s.5A of the Abolition Act. That, however, would be by virtue of the operation of s.5A of the Abolition Act -a provision which, as we have already said has not been challenged-and not because any provision of tho impugned Act deprives him of a right to claim a higher purchase price. The impugned Act is plainly applicable only to mattHs arising out of a relationship between landlord and tenant. ft.d provisions arc not intended to apply wh~re such relationship does not subsist. Tberefort•, thP. law must be held to Le within the competence <1f the legislature by virtue of entry 18 of List II of the Co11stitution which is to the follow ing effect: "Land, that is to sn.y, rights in or over land, land tenur<s including the n·l1ttion of landlord and tenant, am1 tli1· eollection of rents; tra11sfer and alil'natiou of agri<:ultural imprnvemt•nt anrl itgri1·11ltural loanR; coloniz ation." land; 1~1 M tiharana Shri Jq:vvantsinghji Ranma/singhji 1lc. v. The State ojGujaral Mudlwlkar J. 2 S.C.R. SUPREME COURT REPORTS 465 There can be no question of regarding the impugned Act as colourable because it directly falls under Entry 18 and de.a.ls with matters which have a bear ing upon the relationship of landlord and tenant. 'l'he law being thus within the competence of the Bombay legislature, Art.31( l) of the Constitution can not be said to have been infringed. The first three points urged by Mr. Pathak accordingly fall to the ground. The fourth, fifth and sixth points are also based on the assumption that the impugned Act confers tenancy rights were extinguished on April l, 1957, rights of permanent tenancy. Upon the construc tion which alone can properly be placed on s. 4 it cannot be said to confer any new rights on such persons. To repeat, the section applies to perma nent tenants and permanent tenants alone. There fore, the three contentions raised by Mr. Pathak do not fall for consideration. persons whose The seventh point urged by Mr. Pathak is that ss. 4 and 5 of the impugned Act do not apply to other occupants under the Bombay Land Revenue Code, who are similarly situnte and that the result of this would be that they will be entitled to higher purchase price than that permissible under s. 5A of the Abolition Act. This, according to him, is a classification without any reasonable connection with the objects sought to be achieved by the statute. If our construction of s. 4 is correct, Art. 31-A of the Constitution' would protect law and the petitioners would be precludt>d from challenging it on the ground that it infringes Art 14. Apart from that we may point out that ~hough the im pugned Act applies only to tenure villages and not to non-tenure villages, there is, in fact a ground of types. distinction between villages of the two Th'.tt ground former all the wise of the relevant tenure-holders the statement of themselves, but as Rtated records. In records were with the availability 19'1 M oAorhlla Shri J'9r:iantsmth]i Ra11mclsi111hji tk. v. Tiu 8141< o/Ouja•ot Mwlho/k., J. 466 SUPREME COURT REPORTS [1962) SUPP. "objects a.nd reasons" were not produc!'rl by them and this created difficulties in completing the r!'cord of rights. In the latter the records having been maintained by the Government were av11.ilable and theroforo, no diffieultv was experienced in complet ing the record of rights. The claK.~ification is thus ha. Red on the extent of the availability of the material inference or a p;e,umption and, for raising an therefore, has a roasonable nexus with the object sought to be achieved by tho impugned Act. Upon this view is not necessary to consider the other points urged by Mr. Pathak on the authortity of various decisions because the very basis of those arguments is, in our opinion, unsound. The petitions are, therefore, dismiBBed with costs. As there was only one common argument we direct that there will be only one set of costs. AYYA~GAR, J.-I entiroly agree with the order proposed to be passed by my Lord the Chic! Justice and my learned Brother S.IC Das .T. The only reason for my separate judgment is because of the views I entertain regarding tho import of Bombay Land Tenure Abolition Laws (Amendment), Aot l9ii8 (Bombay Act LVII of 1958) hereinafter referred to as the impugned Act, and in particular of s. 4 thereof. Tho facts of the case and relevant statutory provisions bearing upon it are set out in extenso in the judgments of my learned brethren and they do not need.to be repeated Beforo entering on a consideration of the proper construction of the impugned Act it, is neceRB&ry to state tliat I did not understand the learned Soli citor-General to contest the poaitio11 that if the impugned Act extended the definition of the term permanent tenant beyond that which obtained under s.83 of the Land Revenuo Code, and brought that category tenants who before then were com· tenants" prehended within the class or "other 1901 M aharana Shri J ayvanbinghji Ranmalsinghji et&. v. n,, Stale of Gujarat Ayyangar J, 2 S.C.R. SUPREME OOURT REPORTS 467 under's.32H(l)(ii) of Bombay Act 13 of 1956, its consitutional validity could be sustained, having rf'gard to the decision of this Court in Sri Ram Ram Nnrain Medhi v. State of Bombay(') holding that the effect of the 1956 legislation was to replace the rela.· tionship of landlord and tenant by that of vendor and purcha~er as between the temire-holder and his tenants. His sn bmission was accordingly directed to establishing that the impugned Act while not modifying in any manner the basic requirement~ needed to constitute a person a "permanent tenant' under s. 83 of the Code, merely shifted the onus of proof on to the tenure-holder on certain stated facts being found. It is this view which has found favour with my learned brother Mudholkar J. On the construc tion of the relevant provisions of the impugned Act, he has held that the status or character of a permanent tenant or the definition of that term has not been altered in any manner, and that whereas before the impugned enactment the onus was upon the tenant to prove all the nf\cessary elements to establiRh his claim to he a permanent tenant, the change effected by the Act of 19158 was to throw on the landlord the burden of proving the origin of the tenancy and· its terminahle character in the event of its being proved that the tenant had been in posseRsion of his holding for twelve years before August 15, 1950. If this construction of the effect of the impugned Act were accepted I agree it would go a considerable way towards establishin!! impugned the constitutional validity of the provision. I feel mvself however unable to accent the construction of s.4 of the impugned Act whi<'h was put forward before us bv the learned Solicitor General for the State and l\fr. Nathwani on behalf of the contesting tenants. To start with, the long (I) [1959] Supp. IS. C, R. 489. 1961 Malt11rana Slr1i Ja)amui11ehji Ranmal1inghji tk, •• 17w 81414 "'f Gujar_at AJ!10lltar J. 468 SUPREME OOURT REPORTS [1962) SUPP title of the Act itself stlLtes that the Act is one for further to "define" permanent tenants. No doubt, where the orwrnti v" words of the prol'iaion aro clear that only a shifting of the onus of proof ia effected, the long title of the Act cannot be called in aid to vary their proper intPrpn:ta• ion, but that th(l other hand is not as I the 0111•rative pro visions of the enactment app,.arH to me dPsiµned to clearly carryout the purpose '"t out in thn long title, viz., to "define" or to reddhe the elass of persons who shall be considered to be "permanent tenant•" for the purposes of obt:liuing the bern·fits conferred upon "permanent t(·nauts" nndn tho hnv that existed before that dat,._ the position hne. On shQw presently, The operative provisions of the impugned Act rel1>vant to the present enquiry are ss. :!, 4 and 6 and they read : "3. A person shall, within tho meaning of the relevant Land Tenure Abolition Law (in the context the Taluqdari Abolition Act, HJ.19), be dcrml·d to bc ........................... a pnmanent tenant on the date of the abolition of the relevant land tenur<', if hi" name has bt>en recordeci in .the T<'Cf'rd of rid1ts or other publie or revenue rec•)rc] as ........ :· ... pcrmanent tenant in r(•spect of any h·nure-land (a) on the •late of the aliolition of the relevant land tenure, or issued durini! (b 1· in pursuance of ord«rs th•· courB<' of any proceP<linc~ 1111dn the rele vant Land Tenure A!J1Jlitiun Jaw or, as the cas" may be, the Land Revenu" Code, J 87!)- (i) before the •·u;.imenecment of this Act, (ii) after the commenePml'nt of this A it in cases in which inquiri•·H were pend ing at the commencement of thiH Act, 01· 1961 ])1 aharana Slari J ~1vantsinghji Ranmalsinghji etc. v. The State of Gujarat A)yangar J. 2 S.C.R. SUPRElliE COURT REPORTS 469 (iii) in put'suance of an order issued by the Mamlatdar in respect of art entry under section 6 of. this Act." "+. For the purposes of the relevant Act specified in Part I of the ~che<lule, a person- (a) who on the date of the commencement of that Act was hoi<ling any tenure-land, and ( b) who and whose predecessors in title, if any were, immediately before that date for suuh continuous periods as aggregate to a total continuous period of twelve years or more, holding the same tenure-land or any othe.r tenure-land, as a tenant ............ under the tenure- holder for the time being on payment of an amount ex~eeding the assessment of the 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 clause. (b), be deemed to be a permanent tenant of the land under clause (a) and all the provisions of that Act shall apply to him as they apply to a permanent tenant. Explarwtion.-The assessment purpose of this section shall be reckoned as provided in clauses (a) and (b) of section 5." "6. (1) The rights of ..................... (a) permanent tenant under sections 4 and 5 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 this Act for a decla ration that any holder or tenant under his is not ...•........ a permanent tenant. (2) Any such applicati•m shall be disposed of as if it were an applioation in respect of a 19C1 •• Mahsrat1t1 Sltri J'fYNICtsiirt.h.ii RCIUff4lsUcgliji tic. Th. Sl•'4 q[Guj11T•I 470 SUPREME COURT REPORTS [1962] SUPP. disputed caso under section 135D of the Bombay Land R-0venuo Code, 1879." to extract only the portion pertinent to tho contro versy before us. It will be seen that by force of s. 3 persons are deemed to be permanent tenants under the Taluqdari Abolition Act, 1949, if the name of such tenant is recorded in the record of rights or other public records aB "a permanent te!lant" in any one of the three events specified in els. (a), (b) and (c) In so far as reference is made to of the section. porsons already recorded in the record of ri!:hts before the passing of the Act, the characteristics for determining who a permanent tenant was would obviously have been based on the pre-existing law and they would have beon permanent tenants under the law apart from the "deeming" provision. The position of those recorded under cl. (b) might be similar, and it is unnecessary to enter into a dis cussion as to whether in cases where an enquiry commenced before the commencement of the Act but is completed thereafter, the tcl!ts brought in by s. 4 of the Act could be availed of to determine status of the tenant. If ono proceeded on aesumption that the provisions of tho impugned Act aro not to be brought in into an enquiry already started there would be no difl'erenoe between els. (a) and (b) of s. 3-and in both MBOB they would be actual and not statutorily deemed "permanent tenant.a". Sub-cl. (cl however st!\nde on a different footing. It brings in, if my construction af a. 4 ( b) i.e correct, a new class of "permanent tenants" persons who were before the date of the impugned enactment non-permanent tenants in whom by virtue of the provisions of Bombay Act 13 of 1956 the interest of the landlord stood transferred and by whom the purchase-price specified in s.32H(l)(ii) into the category of "permanent was payable, tenants." 1961 Maha,.ona Shri J tJ,JtJantsinghji Ranma/Jinghji etc. v. Th• Stat, of Gi!iarat AyJangar J. 2 S.C:R. SUPREME COURT REPORTS 471 Section 3( c) refers to an entry made by a llfamlatdar under s. 6, but when one looks at s. 6 he is referred to s. 4 as containing or defining the clasp of tenants whom the Mamlatdar is enjoined to enter in the revenue r~cords as a "permanent tenant." Turning now to s. 4, it would be s~en that persons are deemed to be "permanent tenants" if they satisfied three cumulative conditions : (a) they must be holding tenure-land on the date of the commencement of that Act, viz., The Taluqdari Abolition Act, i.e., on August 15, 1950, (b) they or those from whom. they claim should immediately before August 15, 1950, have been continuously in possession of that or any other tenure-land for twelve years, (c) the amount of rent payable by them should exceed the assessment. Jeviable on the land calculated according to s. 5. The effect of condi tion (a) would be to exclude from the category of permanent tenants those who came into occupation or were inducted on the land of· which they could claim to be permanent tenants, after August 15, 1950. But every tenant who was in possession of t:enure-land on that date could apparently qualify for obtaining the status of a permanent tenant, being deemed to be such, if he satisfied the other two conditions. As regards condition (b ), obscurity and contradiction attending the expres sion "continuous periods aggregating to a total continuous period of twelve years". Aggregation would obviously mean an addition of integers, and when units of time are the integers as is apparent from the context, in plain words it would mean the addition of broken periods. To posit continuity in such a case, might possibly suggest that it refers to cases where a tenant is in possession of different parcels of tenu:e-land throughout the twelve-year period, though he is not ip. possession of any parti cular parcel continuously for a period of 12 years; and that the terms of the section would be satisfied and he would be deemed to have been in "continuous IHI JI dorao Shri J .,.,_tsi111Aji R-1sVo,Aji ti<. v. n. Stci. ofGujatat A.va1.,.J. 472 SUPREME COURT REPORTS [1962] SUPP. i.e., posscesion" of the land of which he was in posses sion at the commencement of the Taluqdari Aboli tion Act for the purpose of qualifying for permanent tenancy of that parcel. An analJ sis of the circums tances attendant on this condition would reveal the following: (1) Let us take it that during the period twelve years before August 15, l!J50 a tenant had been in poaseasion of three distinct parcels of tenure land •A', 'B' and 'C' at different periods but conti there being no point of time at nuous, which he was not in poasesaion of one or the other of these three parcels and that on the date of the commencement of the Act he is in possession of parcel •C'. It is possible that such a situation might arise from exchange of holdings with the con sent of the tenure-holder by a person who was a p<?rmanent tenant under the existing law. But the provision on its terms is not confined to exchanges by such tenants, but is of wider. application. If tho proper construction of this unclear provision of s. 4 be as above, any tenant who satisfied the other conditions of the section, would bu deemed to bo a perman~nt tenant in respect of parcel •C'. It will at once be seen that the origin of his tenancy of holding •C' is ex concessis known. Surely, such a tenant would not be a permanent tenant within s. 83 of the Bombay Land Revenue Code. It has only to be added that he would not fall within the definition of a permanent tenant even s. 2( lOA) of the Tenancy Act inserted by Bombay Act 13 of 1956. The argument, therefore that s. 4 was merely intended to and provided a rule of evidence for determining who a permanent tenant was :under s. 83 of the Bombay Land R-0venue Code, 18i!I and did not extend such category of persons by an artificial definition, would appear to be negatived even by the first paragraph of s. 4(1.>). This conclusion is strengthened by the provi sion made at the end of s. 4(b) of the impugned Act lamllor<l or as regards the grounds upon whi"h tho 1941 M IJ~/JTmJIJ Shrr Jayi·antsinghii Ranmalsinghji etc. v. The State 'of Gujarat Ayyangar J.

2.S.C.R. SUPREME COURT REPORTS 4i3 the tenure-holder could disprove the right of a ten ant to the status of ii permanent tenant. That provi sion reads: "Unless it is proved by the tenure-holder that he would not have been a permanent tenant on the basis of continued posseesion of land under clause (b) ...... " The learned Solicitor-General submitted that to read this portion of s. 4 (b) as meaning that the landlord has to disprove what tenant has already proved would be to give it no mea~1ing at all and that consequently it should be held that in order to give some rational meaning to the words quoted they refer to tenure·holder having to prove that the tenant was not a permanent tenant under s. 83 of the Bombay Land Revenue Code. To put it differently, the construction suggested was that on the conditions in s. 4(b) being ful · laid down filled, viz., continuous possession of tenure-land twelve years computed as des by a tenant for cribed, the onus was shifted to the tenure-holder to prove that the tenant did not . fall within the category of persons described in s. 83 of the Code. I find myself unable to accept this interpretation of the section. Even if one started with the presump tion that what the impugned Act sought to achieve was not to "define'' a permanent tenant but merely to shift the onus of proving tho status-the conditions of s. 83 of the Code being assumed to be still the determinant, I do not find words in s. 4 to support the interpretation which the learned Solici tor-General desires the Court to accept. There is no reference to s. 83 in the impugned Act and the class of persons who are termed "permanent tenants" are expressly stated to be those who are deemed to be such. That itself would be some indi cation tha.t the class is an artificial creation brought the Act. That apart, I have into existence by that the opening words of the already pointed out 1961 •• M allarana Shri Ja)l!Ol"llJin.~IJi Rantr.alsin1hji tt .. Tlt1~l4'* of Gujt.ral Ayynn1or J. 4i4 ~UPREMJ£ COUHT REPORTS [19til!J SUP!'. tenancy to <lis1.ute first paragraph of s. 4(b) contemplate cases where tenancy of the parcel in respect of the origin of th€1 which permanent is claimed is known. Lastly, the words in which the content of the right of the tenure-holder the "deemed" permanent tenancy are couched are wholly incom patible with his having a right to establish that the tc, nant docs not satisfy the requirements of s. 83 of the Code. The words used are "that the tenant would not have been .a permanent tenant on the basis of continued pcs>ession of land under elau8e (b)''. The conditions on the fulfilment of which a person iH deemed to be a permanent tenant aro, as already pointed out, three and of these two aro set out in sub.cl. (b}, viz., the "continuous" posses. sion of tenure-land and the rent of the land being In my opinion higher than the revenue aSl!essment. the argument about the irrationality of the literal the quoted words or ~. 4(b) stems construction of thats. 4 contemplates an from the assumption enquiry or proceeding initiated by the tenants who by evidence establish the matters set out in s. 4 and it b on that basis that the submission is made that the legislature could not have made a provision for the same matters being disproved by the tenur· holder. Even if the basis be assumed to be corrct, I do not see any absurdity in the provision. But that apart, in my judgmont s. 4(b) doos not contem plate or provide for any application by the tenant is no question of the tenant and therefore there having Cotablished the conditions of s. 4(b) havo been satisfied. Section 4(b) enacts a positive rule of law by which a person in possess10n of a holding of tenure-land on Au!,'llSt 15, 1930 is "deemed" to be a permanent tenant on the fulfil tenure.bolder conditions, ment of being entitled to C8tablish that the conditions of that section have not been satitificd when proceed that purpose are initiated by him. Tho ings for l!Ml Af ahuan.a Shri JtJyvantsfozhji Ra.nm 1lri'lghji etc • ... Tiit State of Gujarat AyyangarJ. 2 S.C.R. SUPREME COURT REPORTS 475 provision for proceedings being initiated by the tenure-holder granted to him bys. 4(b) is to be found ins. 6. to take advantage of What has just been stated is amply borne out by the terms of s. 6, for it enacts that 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 commencement "of the Act of a declaration that the tenant under him is not a permanent tenant" (to quote only the material words). It will there fore be seen that the concept of permanent tenant as envisaged under s. 4 is incorporated into the texture of s. 6. Every person who satisfies the detlnition of a permanent tenant under s. 4 is therefore auto matically entitled w;+.hout application by him, to be entered in the revenue records as a permanent tenant by the Mamlatdar unless the tenure-holder applies in writing objecting to the entry. Obviously raise and which the objections which he could would be the subject of adjudication under s. 6 are tliost· set out as being open to him under s. 4. In it has to be noticed that s. 6 does this connection not specify the grounds upon which the tenure holder might object to a tenant being treated as a permanent tenant and it is on the absence uf those provisions that the learned Solicitor-General bases his argument suggesting that the objections of the tenure holder would extend to disproving tbat the tenant was a permanent tenant under s. 8il of the Code. It is not possible .to accede to this submission. It is common ground that no enquiry 'is contiimplated under s. 4(b) and that the right of the tenure-holder to object to the entry of the tenant as a permanent tenant is by taking advantage of the provision in s. 6. It would therefore follow that s. 4(b) and s. 6 are integrated provisions, the one laying down the grounds of objection open to the tenure-holder, and s. 6 making provision for the forum in which and I~I M•hartlU s~,; Jo)YentJinghji R11n1MlJingliji tk• v. TJ11 SW1 of Guj.,•I ... _,_, .. , .. J. 476 SUPREME COURT REPORTS [1962] SUPP. the procedure by which such objections could be urged. To put the matter slightly differently s. 4ib) specifies the grounds of objection open to a t<'nure-holder but does not indicate where and in the objrctions could be raised- which proceeding that t !"' authority to dccido is whfle s. 6 indicates the Mamlatdar and that ti"' proceeding would be initiated by an objection petition filed by the tenure holder. Hoth s. 4(b) ands. 6 would be truncated unless they were read as forming. an integrated whole. It is in this manner that a reconciliation is possible between the terms of ss. 4 and 6 which so to speak form together provision for determining, investigation. the class of persons who shall be entitled to claim rights as permanent tenants. Section 4 having defined a permanent tenant in positive terms, s. 6 ste_ps in and sets up a procedure and creates a forum in which that positive provision might be tested and if not displaced wou Id be given effect to. In the view I have expressed the reference the Code to the enquiry being under s. 135D of would not make any difference, because the officials and Tribunals or Courts vested with authority under s. 135D of the Code and the related provi sions would have still to consider whether the tenant had or had not qulified to be a permanent tenant by the application of the criteria enacted by s. 6. I am therefore clearly of the opinion that the entire impugned en~ctment object and purposo of the which is given effect to by its operative provisions enacts not a rule of evidence for determining who permanent tenants are under the pre-existing law, but to define, create and as it were, add a new class of "permanent tP.nants", i.e., those who satisfy the requiremets of s. 4. If this were the proper construction of the impugned enactment it was not seriously contested that the enactment would be void and uncoll8titu tional and liable to be struck down. I agree there fore that these petitions should be allowed, 'o ll/Gl Maharana Shri Jayvantsinghji Ranmalsinghji etc. v. Tht State of Gu.iaral Ayyan.1ar J. January 9 2 S.C.R. SUPREME COURT REPORTS 477 BY CoURT : In accordance with the opinion of the majority, these petitions are allowed with costs. As tne petitions have bP-en heMd together there will be only one hearing fee. MUNSHI RAM v BANWARILAL (M. HIDAYATULLAH and J. c. SHAH JJ.) Arbitration-Award .filed in Court-Application for setting aside award-Oompram1:ae between parties-DecreP in terms of award as mo·iified by compromiae-Validity of-Arbitration Act 1940 (10 of 1940) ss., 15, 23, 30, 3! and 41-Code of Civil Procedure, 1908 (.5 of 1908), O. 23. The dispute between the parties regarding their shares in a firm was referred to arbitration. The arbitrator made his award, inter alia, awarding certain sums of moneys to be paid by certain instalments. There was also a provision in the award that the p;irties shall be liable t" pay in eq ta! shares theincome-tax to be assessed. The award was filed in court by the arbitrator. The appellant made an application for set~iug aside the award and the respondents filed their replies to the application. Thereafter, the parties came to ter111'> and askej for a decree to be pass~d in accorda.nce there with. The court passed a decree on the award as modified by the c )mpromise. In execution, the appellant contended that the decree was a nullity as the cr, urt had no jurisdiction to mo.iify the award by compromise. Held, that the decree was not a nullity and was e:<ecut able. In cases of compromise after an award, if the parties are dissatisfied with the award and wanted to substitute it by a co1npron1ise involvinb· matters alien t() the original dispute \YhL::h are inseparable, the court n1ay supersede the submhsion and leave the parties to \vork out their agreement in accor dance with In such circumstance-s the new cornpr-.1mise itself furnishes a very g<lod ground for superseding the reference and thus revoking the award. Where the parties do not throw the award overboard but modify it in its operation, the award, in so fa1 as it is not altered still remains operative and continuous to bind the If the whole of the subject- parties and cannot be revoked. the Arbitration ;\ct. law outside