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Salubai Ramchandra and ors. Vs. Chandu Saju and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 440 of 1962, 92, 255, 256, 257, 302, 309, 358, 369, 384, 407, 411, 475, 47
Judge
Reported inAIR1966Bom194; (1966)68BOMLR295; 1966MhLJ289
ActsBombay Tenancy and Agricultural Lands [Vidrabha Region and Kutch Area] Act, 1958 - Sections 1 and 38(7); Constitution of India - Articles 13, 13(3), 14, 16, 19, 31, 31-A, 31-A(2), 200, 201 and 366(10); Evidence Act, 1872 - Sections 114; Berar Land Revenue Code, 1928 - Sections 53 and 54; Madhya Pradesh Land Revenue Code 1954
AppellantSalubai Ramchandra and ors.
RespondentChandu Saju and ors.
Appellant AdvocateS.V. Natu, Adv. in Spl. Civil Appln. Nos. 92, 255, 256, 257, 302 and 511 of 1964, ;B.A. Udhoji, Adv. Spl. Civil Appln. Nos. 440 of 1962, 475 and 562 of 1964 and 50 of 1965, ;S.N. Kherdekar, Adv. in Sp
Respondent AdvocateC.S. Dharmadhikari, Adv. in Spl. Civil Appln. Nos. 92, 255, 309, 358 and 384 of 1964, ;G.R. Mudholkar, Addl. Govt. Pleader in Spl. Civil Appln. Nos. 440 of 1962, 92, 255, 256, 257, 302, 309, 358, 369,
Excerpt:
tenancy - vacation of leased land - sections 38 (1) and 38 (7) of bombay tenancy and agricultural lands (vidarbha region and kutch area) act, 1958 - whether landholder who has commenced proceedings for terminating lease of tenant under section 38 (1) and for possession of that land is not entitled to any relief in respect of land held by tenant if said tenant was protected lessee - petitioners have rights in property - protected tenant can be vacated - amended provisions of section 38 (7) not applicable - order of tribunal liable to be quashed and case remanded back to tribunal for fresh disposal in accordance with law. - - provided that where a person of such category is member of a joint family, the provisions of this sub -section shall not apply it at least one member of the joint.....abhyankar, j.(1) this order will dispose of a batch of 28 special civil application which raise a common question of law and also interpretation of the constitution. these special civil applications are:-(2) the common question of law that arises in all these case is whether a landholder who has commenced proceedings for terminating the lease of a tenant under section 38(1) of the bombay tenancy and agricultural lands [vidarbha region and kutch area] act, 1958, and for possession of that land is not entitled to any relief in respect of the land held by this tenant if the said tenant of was a protected lessee whose rights as such protected lessee , had come into existence's of before the landholder acquired such and by the partition., and such acquistion of land by partition took place.....
Judgment:

Abhyankar, J.

(1) This order will dispose of a batch of 28 Special civil Application which raise a common question of law and also interpretation of the constitution. These special civil applications are:-

(2) The common question of law that arises in all these case is whether a landholder who has commenced proceedings for terminating the lease of a tenant under section 38(1) of the Bombay Tenancy and Agricultural Lands [Vidarbha Region and Kutch Area] Act, 1958, and for possession of that land is not entitled to any relief in respect of the land held by this tenant if the said tenant of was a protected lessee whose rights as such protected lessee , had come into existence's of before the landholder acquired such and by the partition., and such Acquistion of land by partition took place after the first day of the August 1953.

(3) It is common ground in all these cases that the landholder who claims possession of the land claims this rights on the ground that as a result of partition of in the joint family particular land had been allotted to his share and therefore he or she was entitled to terminate the lease of the tenant and get possession according to law.

(4) Hereafter, the Bombay Tenancy and Agricultural Lands [Vidarbha Region and Kutch Area] Act, 1958, i.e. Bombay Act NO. XCIX of 1958 will be referred to as the Vidarbha act because it in operative in the eight's districts of Vidarbha Region of the State of Maharashtra.

(5) The Legislative Assembly of the reorganized state of Bombay passed by the Vidarbha act which come into force in this regain on 30th December 1958. The Act was published in the Extraordinary Gazette of the Bombay Government Gazette on December 26, 1958. It is reproduced in the regulate issue of the Bombay Government Gazette of January 1, 1959, in Part IV, page 1 to 69. On page 1 of the Gazette, the text of the act, it preceded by the following note under the signature of the Secretary to the Government of Bombay Legal Department.

'The Following Act of the Bombay Legislature, having been assented to by the President on the 25th December 1958, is hereby published for general information.'

(6) The Preamble to the Act is divided into two paragraphs and it is to the following effect:

'WHEREAS it is expedient to amend to the law which Governs of the relations, of landlords and tenants of agricultural land and suits used for allied pursuits in the Vidarbha Region and the Kutch area of the state of the Bombay with the view of bringing the status of and rights to tenants as far as possible in line with those prevailing in certain other parts of the state:

AND WHEREAS it is expedient in the interest of the general public to regulate and impose restriction of on the transfer of agricultural lands and to dwelling houses and lands appurtenant thereto the sites used for allied pursuits belonging to or occupied by agriculturists, agricultural labour, artisans and persons carrying on allied pursuits in the Vidarbha Region and the Kutch area of the state of the Bombay and to provide for the assumption of management of agricultural lands insertion circumstances and to make provisions of each certain matter hereinafter appearing: it is hereby enacted in the Ninth Years of the Republic of India as follows:'.

(7) Section 2 of the Act gives definitions of and sub - section (34) of section 2 states, the words and expressions used in this , act but not defined shall have the meanings assigned to them in the code and the Transfer of property act, 1882, as the case may be. But there is an overriding caution in beginning of the definition section, that this should be so unless the context requires otherwise. The 'code' referred to in sub -section [34] means under section 2 [7], the Madhya Pradesh Land Revenue Code, 1954.

(8) Section 38, the Interpretation of which is in issue in these cases originally stood in is various sub - section as follows:

'38 [1], Notwithstanding anything's contained in section 9 or 19 but subject of the provisions of sub - section [2] to [5] a landlord may after giving to the tenant one years notice in writing at anytime within two years notice in from the commencement of this act and from the application for possession as provided in sub - section [2] of the section 36 terminate the tenancy of the land held by a tenant other than an occupancy tenant if he bona fed requires the land for cultivating it personally.

(2) Where the landlord is of the following category, namely:-

(a) a minor,

(b) a widow,

(c) a serving member of the armed forces.

(d) a person subject to any physical or mental disability then if he has not given a notice and made an application as required by sub - section (1),such notice may be given and such application may be made-

(A) by the landlord within the one year from the date of which:-

[1] in the case of category [a] he attains majority:

[2] in the case of category [c] he ceases to serve inset force.

[3] in the case of category [d] he ceases to be subject to such physical f or mental disability and

(B) in the case of widow by the succession - in - title within, one year from the date on which the widows interest in the land ceases to exists:

Provided that where a person of such category is member of a joint family, the provisions of this sub - section shall not apply it at least one member of the joint family is outside the categories mentioned intuit sub section unless the share of such person in the joint family has been separate by the mentioned bound before the prescribed date and the Tahsildar on inquiry is satisfied that the share of such person in this land separated having or such person in the land is separated having regard to the area, assessment, classification as the share of that person in the entire joint family property of and not in the larger proportion.

Provided further that where land is held by two or more joint landlords, the provisions of this sub - section shall not apply if at least one joint holder is outside the categorizes specified in causes [a] to [do] of this sub - section.

(3) The rights to a landlord to terminate tenancy under sub - section [1] shall be subject to the following conditions namely:-

(A) If the landlord at the date of the on which the notices is given and on the date on which it expires hand other land of his own or has not been cultivating personally any other land, he shall be entitled take possession of the land leased to the extent of the three family holdings.

(B) If the land cultivated by him personally is less than three family holdings, the landlord shall be entitled to take possession of so much area of the land leased as will be sufficient to make up the areas in his possession to the extent of three family holdings.

(D) The land leased stands in the record - of - rights or in any public record or similar revenue of record on the 1st day of the August 1957 and thereafter during the period between the said that the of the commencement of this Act in the name of the landlord of himself or any of his ancestors of if the landlord is am member of such family.

(E) If more tenancies then one of are held under the same landlord, then the landlord shall be competent to terminate only the tenancy or tenancies which are the shortest in point of duration.

(4) In no case a tenancy shall be terminated:-

(A) In such manner as will result in leaving with the tenant after termination of less then held the areas of the leased to him:

Provided that where the land held by a landlord tenure of holder does not exceed one third of as family holding and the landlord does not cultivate personally any other land as attendant or cultivates personally and other land as tenant or cultivates personally only so much land as would not along with the land held by the him as tenure holder exceed one - third of a family holding exceed shall be entitled to resume for personal cultivation, the entire land leased by him. (B) In such a manner as will result in a contravention of the Bombay prevention of Fragmentation and consolidation of Holdings act, 1947 or making any part of he land leased a fragment within the meaning of that act,

(C) If the tenant has become a member of a co - operatives farming society and so land as he continues of to be such member or.

(D) It the tenant is a co - operatives framing society.

(5)The tenancy of the any land lift with the tenant after the termination of the tenancy under this section shall not be at any time after words be liable to termination of against on the ground that the landlord bona field requires that land for personal cultivation.

(6) If, in consequences of the termination of the tenancy of under this section, any part of the land leased is left with the tenant, the rent shall be apportioned in the prescribed manner in proportion to the area of the law left with the tenant.

(7) Nothing in this section shall confer on a tenure - holder who has acquired and land by transfer after the 1st day of the August 1953 a right to the terminate of the tenancy of tenant who is a protected lessee and whose right as such protected lessee had come to existence's before the transfer'.

(9) This section as well as other parts of the Act have been amended from time to time and the important amendment of will which we are concerned was made in sub - section [7] of the section 38 of the by Maharashtra act No. XLIV of 1963. This amending act received also the assent of the president an was first published after the receiving such assent on the 16th December 1963, which would therefore be the date on which the Amending act come in to force. Section 2 of the Maharashtra Act XLIV of 1963 amended the provisions of section 38 of Vidarbha act by adding words 'or partition' in two places of in the original section. As amended, sub section [7] of section 38 would read as follows.

'38 [7] Nothing in this section shall confer on tenure - holder who has acquired any land by transfer or partition after the 1st day of the august 1953 a rights to terminate the tenancy of tenant who is protected lessee and whose right as such protected lessee had come into existence of before such transfer or partition'

The Amending act XLIV of 1963 further provides by its sixth section that section 38 and 39 of he principal act as amended by that act shall also apply d as respect of all suits appeals and proceedings which was pending before the authority, tribunal or court onto date of the commencement of this act. This the result of the Amending act so far as section 38 is concerned would be that not affect the because finally decided by any authority, Tribunal or court before by Authority amending provisions would govern the disposal of the all suits appeals and the proceeding which maybe pending before the commencement of the amending act viz., 16th December 1963.

(10) it is not disputed in all these petitioner that proceedings were pending before one authority or another when the amendment of made inspection 38 become of applicable, by reason of the provisions of Act XLIV of 1963.

(11) The principal argument is divided into two branches. It is first contended that the new provisions of which apparently includes acquisition of land as result portion amongst of members of joint family violates or abridges the rights of the landholders guaranteed to them under Article 14, 19 and 31 of the constitution, and therefore they are ultra vires of the provisions of the powers Legislature of the state. While including partition as mode of acquisition of land in section 38 [7] of the Vidarbha Act the Legislature of invaded the inherent of rights of the members of the joint family of effect disruption of theirs joint status and get the joint family property divided according of their shares and interest to an unreasonable extent. This is because the allot of the land at the joint family partition which is effected after 1st August 1953 and after the tenant on land had acquired the statue of the protected lease, created an invidious discrimination of between create the partition effect prior to 1st august 1953 and after 1st August 1953 and thus is violative of equal protection of law under article of 14 of the constitution. It is also urged that there is no particular object of be achieved with references to this date of portion or who come on and such date. It is also urged that there is an inherent right in member of joint family to hold that enjoy his property without detriment of and the restriction put of the members of the joint family of in preventing him from terminating the tenancy of the protected lessee in an unreasonable restriction of under Article 19 of the constitution. The restriction of amount in effects to acquisition of property or atone rate drastic to acquisition of rights in property of members of abridgment of rights in who members of the joint family for which there is no justification bemuses it is done without any compensation. Thus, the three Article of the constitution of which are alleged to be violated by the amending which provisions of the act as Article 14, 19 of and 31 of the constitution.

(12) The second branch of the argument is that even assuming that the challenge of under Article 14, Article 19 or Article 31 of isn't possible as matter of construction of the amended section, it property interpreted a member of the joint family cannot be said to 'acquire' land as result of partition effected amongst of members of the joint family. A member of the joint family has unity of interest of ownership possession and enjoyment of the and what happens in the case of the joint Hindu family it is declaration of his intention to separate or in other words a declaration of the intentions to disrupt of the joint status and on declaration of the such intention it is only the made of enjoyment of property that is altered but there is no acquisitions of any land as a result of partition.

(13) AS there was a challenged to the vires of the act which amended the provisions of sub - section [7] of section 38, the state o Maharashtra was imploded and a notice was also issued to the advocate General. Arguments regarding the first question have been addressed on behalf of the state as well as the respondents - tenants of reply to the submissions made by the learned counsel for the petitioners - landlords.

(14) The principal contention on behalf of the opponents to the challenge grounded on the basis of violation of the guarantees under Article 14, Article 19 or Article 31 of the constitution was the effect of the Article 31-A of the constitution was the effect of the by the constitution as introduced by the constitution [first amendment] as act 1951, and amended by the constitution [fourth amendment] act 1955, a and the constitution [seventeenth amendment] act 1964. According to the respondents the vidarbha, act as originally passed or after the its amendment by the Maharashtra act XLIV of 1963, is immune from the challenge is on the ground that the any it is provisions of void being inconsistent of with or because it take away or abridges of any rights conferred by Articles 14, 19 or 31 of the constitution not withstanding anything's of contained in Article 13 of the constitution of because the Vidarbha act is law of providing for extinguishment of the modifications of rights in an estate. Article 31-A prior of the further modification by the constitution. [Seventeenth amendment] Act, 1964 stood as follows:

'31 - A (1) Notwithstanding anything contained in Article 13, no law provided for:-

(A) the acqusition by the state of any f estate or of any rights therein or the extinguishment or modification of any such rights, or.

(B) the taking over the management of any property by the state of the limited period either in the public interest or in order to secure in the proper management of property.

(C) the amalgamation of woo more corporations of either in the public interest or in order to issue secure of the proper management of any of the corporations of,

(D) the extinguishment or modifications of any rights of managing agents, secretaries and treasurers, managing directors, directors or manager of corporation or of any voting rights to shareholder thereof or

(E) the extinguishment of modification of any rights accruing by virtue of any agreement lease or license of for the purpose of searching for or winning, any mineral or mineral oil, or winning, any mineral or mineral oil, or the premature termination of cancellation of any such agreement else or licenses shall be deemed to be void on the ground that it is inconsistent of with or takes away of the abridges any of the rights conferred by the articles 14, Article 19 or Article 31:

provided that where such law is law made by the legislature of state the provisions of the this article shall not apply thereof unless such law having been reserved for the consideration of the president has received his assent. (2) In this article:-

(A) the expression 'estate' shall in relation to any local area have the same of meaning as that the local expression of the it local equivalent of has in the existing law relating of land tenures of in force of in that area, and shall and also include any jagir, in am or muafi or other similar grant [and in the state of Madras and Kerala any janmam rights]

(B) the expression 'rights' in relation to the an estate, shall be include of the any rights of vesting in a properties, sub - proprietor under - proprietor tenure - holder [raiyat, under - raiyat] or other intermediary and the any rights or privileges [in respect of land revenue]

(15) According to the respondents. The land with respect to which the Vidarbha Act makes a provision of fully answers what is decried as 'estate' in clauses 2 [a] of art. 31 - A anti has been so held by the supreme court in its decision of reported in Mahadeo v. State of Bombay : [1962]1SCR733 .

(16) In view of this position of judicial pronouncement of which prima facies of decided the question of vires of the impugned legislation, the learned council of for the petitioners Shri Natu made certain submissions which do not appear to have been pressed or agitated before the supreme court in the above case. As there has been no reference to any such argument, Shri Natu was heard to in details in amplification of his submissions on all these matters.

(17) According to Shri Nat, the Vidarbha Act i.e., the Bombay Tenancy and Agricultural Lands [Vidarbha Region and Kutch Area] Act, 1958 i.e., Bombay Act XCIX of 1958, is not a piece of legislation of the which could be in clouded in the proviso to the first clause of Article 31-A. In other works the contention raised by Shri Nat is that the Vidarbha Act isn't law made by the legislature for the State because it was not reserved for consideration oft President and hasn't received the assent the president and has president. This submission is based on the manner of in which the Bombay Act XCIX o 1958 come to be published both in the Unordinary and ordinary Government of Gazette with the note of the Secretary government Gazette with not of the Secretary to the Government of Bombay. Legal department. That note states 'The Following Act of the Bombay legislature having been assented to y the president on the 25th December 1958, is hereby published for general information.' Shri Nat, a contention is that what seem to the have been assented to by the president to it Act of Bombay Legislature and not the Bill as passed to the tow Houses, of Legislature of then state of legislate, it should not only be passed governor of the State. It is only the assent of the government the Bill passed by the Legislature of state which makes that the Legislation an Act oft state Legislature. The argument further says that there is no provision if the constitution for reserving an Act for the consideration of the president or for the assent of the president. Under article 200 of the constitution when a bill has been passed by the Legislative of the state is shall be presented to the Governor and the Governor shall declare either that the assent to the from or that he reserves the bills for the consideration of with the two provisos to Article 200 when are not called in aid here. Then Article 201 provides for the consideration of the president, the president shall declare either that he assent the bill or that the withholds assentherefore. Basing his argument on the text of these two article of he constitution it was argued on behalf of the petitioners that the endorsement appearing under the signature of the secretary to the government of Bombay, legal Department on in the Gazette Notification doesn't shows that the Bills of the Bombay Legislature was assented to the day by the Persian or was reserved for the consideration of president but it specifically referred to the act of the Bombay legislature having been assented to the president therefore according to the learned counsel for the petitioners this is not a law which could be said to the have been reserved for the consideration of the president or to have received his assent.

(18) There's no doubt that it is only a Bill by the Legislature of the state whether it is single or bicameral which cane reserved for the consideration of the president and for assent of the president. There is no provision in either of the two Article 200 and 20 or any article of the constitution which permits the governor of the sea t assent to Bill passed by the legislature to the state of and present to the obtain a further assent. We may mention here that this contention was not raised in the petitioners but was allowed to be argued at the hearing because according it was a mere matter or interpretation. It is not a mere matter of interpretation. As far as we can see it is a question of the fact in each case whether a governor of a state assented to a bill passed by the Legislature of a state or not. It is also a question of the fact n each case whether what was reserved for the consideration of the president was the bill as passed by the legislature of the state assent of the president was so obtained to the bills and or to an act. It view in the presumption of an official act being done according to the procedure prescribed in this lay it cannot possibly be presumed that in the case the Governor of the state of Bombay first assented to the Bill as passed by the two houses of legislature of and then reserved it for the consideration or for obtaining the assent of the president. The whole argument of the is founded on a very endorsement of above the text of the act where the secretary of the legal Department has stated that 'the following Act of he Bombay legislature having been assented to by the president on the 25th December 1958, is hereby published for general information'. It is not difficult to understand what this endorsement. In the first places, this is not a pat of the text of the act. It is an intimation for the information of general public that this was a piece of the legislation which was reserved for the consideration of the president was assented to by the president on a particular date. It is true that the secretary has described this an act of the Bombay legislature, but this description of equally fits in with the legislation being called an act after the bill passed by the state legislatures received the assent of the president for whose consideration it was reserved by the Governor. What the endorsement, in other words, says is that the legislation of the Bombay legislature in the from in bill was reserved for the true in therefor of the bill was reserved for the consideration by the president and assented to by him and has now therefore become an act of the Bombay legislature. I do not think any other interpretation impossible and the argument that the law is outside article 31A of the consideration because of it is an act of the legislature and could not reserved for the assent of the president must therefore be rejected.

(19) The next contention is that the decision of the supreme court in Mahadeo Kolhe's case, : [1962]1SCR733 , proceeds on the footing that the provisions of law relating to land tenure which is relevant for consideration is the Madhya Pradesh land Revenue code and it is the provision of the code which has been examined to find what the rights is respect of an 'Estate' as understood in Article 31-A[2][a] of the constitution.

(20) Article 31-A[2][a] prior to its amendment by the constitution [Seventeenth Amendment] Act, 1964 defined 'estate' as follows:

'the expression 'estate' shall, in relation to any local area have the same meaning as that expression or its local equivalent has in n the existing law relating to land tenures in force in that area'.

What had to be found therefore was whether there was local equivalent to the expression 'estate' or the expression 'estate' used in the existing law relating to land tenures in force in particular area with respect to which the legislation was made come to be examined. Now, the expression 'the existing law relating in the land tenures in force' must be understood in the seen in which the words 'existing law' have been used in the Article 366[10] of the constitution. 'Existing law' rule or regulation Ordinance, order, bye-law, rule or regulations passed or made before the commencement of the this constitution by any legislature, authority or person having powers to make such law, ordinance order bye - law, rule or regulation. In other words reference to 'existing law relating to land tenures in force' would mean was in force on the date of the coming into force of the constitution., i.e., on 26th January 1950. Shir Nat draws support of the this contention for decision of the supreme court in K. Kunhikoman v. State of Kerala. : AIR1962SC723 . This contention appears to be corrects. It is also clear that the M.P. Land Revenue Code, 1954 become law in the then state of Madhya Pradesh in respect of the certain provisions only on the 12th February 1955 and in respect of other provisions on 1st October 1955. The provisions of the M.P. Land Revenue Code, therefore may not strictly satisfy the description of being an existing law within the meaning of Article 31-A[2][a] of the constitution.

(21) Shri Nat, therefore, invited attention to the provisions of the law relating to land tenures which was applicable to the four districts of Berar on the before 26th January 1950. On that date, the Bera Land Revenue Code was applicable to the four districts of Berar viz., Yeotmal, Akola, amraoti and Buldana. Section 38 [7] of the Vidarbha Act affect of the rights to landholder to termite the tenancies of tenets who were protected lessees within the meaning to section 2 [ 25] of the Vidarbha of act and that definition of the 'protected lessee' in its turn, make a reference to section 6 [2] of the same act. Under this latter provision, for the purposes of the Tenancy Act a person shall be recognized to the be protected lessee if such person was immediately, before the commencement of this act deemed to the protected lessee under section 3 of the Berar Regulation of Agricultural leases Act 1951. The Berar Regulation of Agricultural leases act, 1951 was a piece of the tenancy legislation which was operative only in the true four districts of Bera mentioned above. Therefore, the law relating to land tenures which is relevant for consideration in interposing section 38 [7] as existing law in force in the area would be the Bera Land Revenues code of 1928. For this reason the provisions of the Berar Land Revenue code have to be examined.

(22) According to Shri, Nat under the Berar Land Revenues Code land tenures differed according as land was alienated land or unlamented land. Section 2 [2] defines 'Alienated land' and mean land in respect of which the crown has assigned in whole or in parts it right to receive land- revise equal in amount to the fair assessment, and the person to whom such assignment is made is called the 'Superior holder'. The Berar Land Revenue, code also defines 'Holder' in section 2 [4] and 'holding' in section 2 [5] of the code. Then comes the means of a portion of the earth's sure and where land is referred to the this law, it shall be deemed to include to in the things attached to or permanently fasted to anything's attach to such land. Section 54 of the Berar Land Revenue Code describes the position of the occupant. That section is as follows:

'54 (1) The person who acquired the right to occupy the and under section 53 is called an occupant of sent land, and shall hold it is accordance's with the provisions of this law.

(2) All the person who prior, to the commencement of this law, agricultural land under the style of 'occupant' or have been granted or have held rights in unlamented non - agricultural land under the style of 'occupant' or under leases which entitled them to hold in perpetuity, shall be deemed to be occupants within the meaning of this section, to Berar and all restrictions hitherto impose on their and right shall henceforth be of on effect in their far as they may be inconsistent with the provisions of this law'

(23) It is contended that he position of an occupant i.e., of a person entitled to cultivate unlamented land with the rights of the transfer, devolution of and alienation and which where also heritable were different and larger in content under the previously operative law relating to land tenures in this region, and this law was the Berar Land Revenue Code of the 1896, which was known as Hyderabad Assigned Districts Land Revenue code of the 1896.

(24) According to shir Nat, until the Berar Land Revenue Code, 1928, came to be enacted, unlamented land in possession of occupants was of the private ownership of the occupant was a not of the state ownership. This position and was altered and the rights of occupants were abridged under the Berar Land Revenue Code of the 1928 and there was establishment of the direct relationship of between on occupant in respect of unlamented land held by the him and the state therefore. In other words the state asserted it ownership of the Land vis--vis occupant under the Berar Land Revenue Code of 1928 of and to the extent there was diminution of the rights of an occupant under the Code of 1928. In support of the this proposition the learned counsel relied on the commentary of the Berar land Revenue code by late Mr. Hirurkar, and, in particular the observations of at pages 0, 12.

(25) I do not think this contention is well founded. It does not appear that there has been any substantial change in the rights of the occupants of an unlamented land between the code of 1986 and that the 1928 in the four district of Berar. The rights of an occupant where heritable and transferable under both the codes. An occupant could relinquish and obtain his holding under certain circumstances under both the codes. The liability of an occupant to pay land revenue is not different under either code. Whatever is theory may therefore be propounded as to the ultimate rights to the sovereign over land sub - soil rights under the land there doesn't appear to be any under violent departure in respective the rights of an occupant under the Code of 1896 and the rights on an occupant recognized under the Berar Land Revenue Code of 1928. In this context it is more useful to consider the views of another learned commentators on the law of land tenure in Berar viz., the late Diwan Bahadur K.V. brahma. In his commentary on berar land Revenue Code 1928., Third Edition, published in 1950 at page 123 of the book the learned author observed as follows book with reference to the rights of an occupant.:

'this is a clear statement for the first time in the code that the rights of an occupant of are permanent, heritable and transferable property.

The Code of 1896, in section 66, declared that an occupant had a rights to hold his hand in perpetuity on his paying the amount of due on the account of the land revenue. It said nothings about the nature of the property and the result was that occupants were held to be mere tenants by the court of the Additional Judicial commissioners at Nagpur in the case of Baliram v. Maroti [1910] 6 Nag LR 78. All doubts are new set a test by the clear wording of this section. An occupants office now a proprietor or owner of his land subjects however to certain restrictions.'

The learned author then refers to an attempt made by the Berar legislative committee, expressly to describe an occupants as an owner of the land which the he holds. This was not accepted by the Governor - General is council because the sense in which the status of an occupant was understood viz., that or properties from the earliest times was document reproduced it the Berar Gazetteers, as commissioners of West Berar. Sir A.C. Lyall had then observed as follows:

'Subject to certain restrictions the occupant is an absolute properties of his holding he may sell let or mortgage it or any part of it cultivate it or leave it waste of so long as the pays its assessment which is fixed for the errs of the settlement [usually 30 years] and may then by revised only on general principles that is the assessment of an entire district of the village may be impose raised or lowered as may seem expedient but the impose may he altered to the determent of any occupants, on account of his own improvement.

Of the restrictions of on this principles some are intended to protect the rights of the Government of and to check defect of the peasant properties system and the rest to protect the interest of persons other than the occupant who may have an interest in the holding. First if an occupant wishes to do anything's which will destroy the value of his land as to quarry in it, he must apply for the permission to do so and the pay a fine to compensate Government for the prospective loss assessment. Indeed the Berar occupancy tenure has many features resembling the copy - hold estate in the reservation of the manorial rights'.

The learned author thereafter gives a comparison of the rights and liabilities of an occupant under the Berar Land Revenue Code of 1928. Rights include [1], right in the as he improvement [section 57] [3] rights to divert his land after notice [section 58], [4] rights to relinquish his occupancy [5] rights to be entitled to trees [section 46] [6] rights to hold land without increase in the assessment during the currency of a settlement [7] right to pre - empty a share in a survey number [8]right to be entitled in allusion [section 67] and a right of have person who diverts his land without his consent evicted [section 59 [4]]

(26) Among the liabilities are the following liabilities:-

[1] Liability to pay land revenue and ceases;

[2] Liability to repair boundary - marks:

[3] Liability to permit inspection.

[4] Liability to Furnish Flag holders:

[5] Liability to inform acquisition of rights:

[6] Liability to not to work mines or take out minerals of value;

[7] Liability to submit to a rights of way in case of necessity and

[8] Liability to not divert land without notices.

On consideration of these rights and liabilities in could hardly be said that the rights of an occupant in Berar in respect of alienated lands are the less than the rights of a properties of a holding.

(27) In several cases which considered the applicability of the provisions of Article 31-A[2][a] of the constitution to land tenure or land as 'estate' tests have been laid down by the down by the supreme court. Broadly speaking the test is to make find out whether a tenure holder is holding land find out whether a tenure hold is holding land under the state and paying land revenuer for land which is held by him. It is s true that the Berar Land Revenue code which was existing law in force on the date of the coming into operation of the constitution doesn't contain the definition of 'estate' But as observed by their Lordship of in : [1962]1SCR733 .

'Article 31-A[2][a] refers not only to estate but also to in local equivalent. It was reapplied that in many areas the existing law relating to land tenures may not expressly define an estate of as such though the said areas had their local equivalent described and defined'.

It was for this reason that the constitution makes a provision by using the both the words 'estate as well as its local equivalent in existing law relating to land tenure in force in that area.

(28) Their Lordships of the supreme court had to consider the basic idea of the meaning of the words 'estate' assessed in Article 31-A[2][a] in Purushothaman v. State of kerala : AIR1962SC694 . The legislation under consideration was the Kerala agrarian regulations act [4 of 1961] In paragraph 24 their Lordship observed as follows:

'it is necessary, therefore, to have some basic idea of the meaning of the words 'estate' as used article 31-A[2][a] As we have said already where the words 'estate' as such is used in the existing law relating to land tenures in force in particular area there is no difficulty and the words 'estate' as defined in t the existing law would have that meaning for that area and there would be a necessary for looking for local equivalent. But where the words 'estate' as such is not defined in an existing law it will be necessary to see if some other term if defined or used in the existing law in particular area which in that area is the local equivalent of he words 'estate'. In that case the words 'estate would have the meaning assuaged to that the term in the existing law in that area to determine therefore whether a particular assigned to that termini law in that area. To determine therefore whether a articulator term defined or used in a particular areas is the local equivalent of the words 'estate' as used in Article 31-A[2][a] it is necessary to have some basic concept of the meaning of the words 'estate' as used of in the relevant Article of the constitution of the constriction. It seems to us that the basic concept of the words 'estate' is that the person holding the estate of should be proprietor of the soil and the should be in direct relationship of the with the state paying the land revenue relationship of to it except where is it remitted tin whole or in part if therefore a term is used or defined if any existing law in a local area which corresponds to this basic concept of 'estate' that the old be the at local equivalent of the word 'estate' in that area. It is not necessary that there must be an intermediary in an estate before it can be called in estate within the meaning of Article 31-A[2][a]. It is true that in the many cases of estate of such inter mediates is exist, but here are many holders o small estates who cultivate their lands without to any intermediary whatever. It is not the present of the intermediary that determines whether of a particular landed property is an estate or not., what determined of the 'estate' in the existing law in a particular area or is the purposes of the area the local equivalent of the words 'estate' irrespective of the whether there are words intermediaries in existence's or not. This in our opinion, is also borne out by the consideration of the relevant decisions of this court to which we all will not turn.'

It will, therefore be useful to examine the decision of their Lordship of the supreme court where the question whether an occupant in Berar Holding Land which was an 'estate' came directly under examination. That was in : [1962]1SCR733 . It is true that the provisions of law which have been considered in this decisions of are those of the M.P. land Revenue code but the sustained differences in the provisions of the Berar Land Revenue code of the 1928 and those of the M.P. Land Revenue code of 1954 which come to the examined by the Lordship. It may also be examined by the law which was directly under scrutiny was the vidarbha Act viz., The Bombay Tenancy and Agricultural Lands [Vidarbha Region and Kutch Area] Act, XCIX of 1958. Reference if first made to the definition of 'land' in section 2 [17] of he Vidarbha Act and also to the definition of 'land - holder' in section 2 [18] of the Vidarbha Act defines Landholder as meaning a tenure holder whom the state Government has declared to account of the extent of the value of the land his interest therein to be a land holder for the purposes o this act. Now, the words 'tenure - holder' is not defined in the Vidarbha Act expression is denied in M.P. Land Revenue Code In Section 2 [20] of the code [tenure holder] means a person holding land from the state Government of as Bhumiswami or a Bhumdihari. Now, as these two latter expression of have been used in the section 145 of the M.P. Land Revenue code which says of the that there shall be the following classes of tenure - holders of the lands held from the state that the is to says [I] Bhumiswami and [ii] Bhumidhari what a Bhumiswami is, is made clear n the section 146 of the M.P. Land Revenue Code. That section is as follows:

'Every person, who at the coming into force of this code belong to any of the following classes, shall be called a Bhumiswami and the shall have all the rights and be subjects to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely:-

(A) Every person in respect of land held by in as a malik makbuza or a plot properties in the central provinces.

(B) every person in respect of land lawfully held by him a as house site in the abadi in the central provinces.

[C] every person is respect of land held by him as a raiyat malik in the Central provinces;

[D] every persons is repeat of land held by him as an occupant in Berar;

[F] every persons is respect of land held by him as an ante-alienation of tenant o a tenant of antiquity in Berar in respect of which he has become lessee of the state under sub section [2] of the section 68 of the Madhya Pradesh Abolition of proprietary rights [Estates, Mahals and Alienated Lands] Act, 1950.'

(29) It will be seen from the definition of Bhumiswami in this section that every person in respect of land held by him as occupants in the Berar is called a Bhumiswami. Thus in the phraseology of the M.P. Land Revenue Code, 1954, an occupant in Berar who held land from the state under the Berar land Revenue Code, 1928 would be Bhumiswami or a tenured - holder within the meaning of section 2 [18] of the M.P. Land Revenue Code which describes him as a land hold under the Vidarbha under act. There is no dispute of also that he land which is the subject - matter of suit in these proceeding is the land used our capable of binged for auricular proposes and having answers the description of the land with the meaning of section 2 [17] of the Vidarbha Act.

(30) Their Lordship then referred to the definition of 'holding' in section 2 [7] of the M.P. Land Revenue Code. The M.P. Land Revenue Code defines 'holding' to mean [a] a parcel of land separately assessed to land revenue, and [b] in reference of to land held by attendant a parcel of the land held from a tenure holder under one lease or set of conditions. Now precisely the same definition of is given for the words 'holding' in section 2 [5] of the Berar Land Revenue Code. Reference is then made to section 2[20] of the M.P. Land Revenue Code for the definition of 'tenure - holder' meaning of a person holding land from the state Government as a Bhumiswami or a Bhumidhari. Their lordships then referred to Chapter XII of the M.P. Land Revenue Code which deals with the tenure - Holders and Particular to section 145 referring to the two classes of tenure - holder viz., Bhumiswami and Bhumidhari and the definition of the Bhumiswami given in section 146 of the M.P. Land Revenue Code. It has already been pointed out that the definition of 'Bhumisawmi' in section 146 and in particular inclusion of the occupant in Berar in this definition shows that the lands in possession of an occupant in Berar who later on the come to be called a tenure - holder being a Bhumiswami was in substances relating to land which will answer the description of 'estate'. This conclusion must follow from what their Lordships have observed in the above decisions with respect to land held as a tenure - holder by reference to the provisions of the M.P. Land Revenue Code. Their Lordships have also observed that though the words 'estate' as such has not been employed in the M.P. Land Revenue Code it has to bee borne in mind that the Article 31-A[2][a] refers not only to estate but also to its local equivalent. It was realized to land tenure s are the existing law relating to the land tenures may not expressly define an estate of such though the said areas had their local equivalents described and defined and that is why the relevant of provision of the constitution has deliberately used both the words 'estate's well as its local equivalent. Their lordships the observed that the petitioners in that case held land under the state and they pay land revenue for the lands thus held by the them and the therefore there was no difficulty in the them and therefore was no difficulty in the holding that under the existing law relating to land tenures the land held by them fell within the asses of the local held equivalents of the worse 'estate' as contemplated by Article of 31-A[2][a]. I have gone in some details to show that the provisions of the M.P. Land Revenues of code of the Berar Revenue Code, 1928, are identical was for words and the mere facts that it was the provisions of come to be examined the theirs lordships of made no differences to the conclusion reached viz., that the land held by the an occupant and definition of 'estate' as used in the article 31-A[2][a] o the constitution.

(31) The learned counsel for the petitioners, however urged that the land held by the occupants it Berar were under the right ward tenure. It was therefore contend that in another decisions of the supreme court in : AIR1962SC723 , lands held by right ward pattadars from the district of south Canara were not held to be estate and that decision of the supreme courts in Kolhe's case, : [1962]1SCR733 to hold that unalienated land held by a occupant in berar were not an estate. It is necessary to state a few facts of the case relied upon by the learned counsel for the petitions. The legislation nude consideration was he kerala Agrarian Relations, Act No. IV, of 1961. The petitioner come from that part of the state of the Kerala come which was formerly I the south Canara district of the state of madras and come to district and come to the state o kerala b virtue of the state Reorganization act ,1956 Actually, three lands were suited of Hosdrug and Kasargod talukas which have now been made part of the canara Districts in the state of Kerala. The petitioners had large areas of he lands ryotwari pattadras, according to the ryotwatri settlement in the state in Madras under the Boards standing orders of the state. Their lordships therefore observed that it was necessary to look at the state of the law as it was in the state of madras on January 26, 1950, for the area from which the petitioners, come, namely to the district of canara, which was then part of the province of Madras. The usual feature of the land - tenure in admires was the ryotwari from but in some districts of landlords clashed gown up both the in the northern and southern part so f the president of madras as it was before the constitution. The permanent settlement was introduced in a part of the madras presidency in the 1802, but there were other forms of tenures arising out the revenue - frees ground all over the province. There was various act in force in the Madras presidency with respect of to land lord tenures but so far as ryotwatri tenures are concerned, the were governed by the standing orders of the Boards Revenue. Eventually in 1908, the Madras Legislature passed the Madras Estates Land Act. No. 1 of 1908, which was later amended from time to the and that act later contained a definition of the words 'estate' which was in force when the constitution come into force.

(32) But it was further found in that case that though the act of 1908 of dealt with landlord tenures to madras and was the existing law relating to land - tenures, there were other classes of land - tenures with consisted of ryotwari pattadars which were governed by the Board's standing Orders, there being no act of the legislature of with respect to them. The holders of ryotwari with respect to them. The holders of ryotwari pattas used to hold land o lease of from government. After noticing the features of land tenures called ryotwari pattadars the their lordships proceeded to observe of that though the act of 1908 was in the force all over the state of madras, 'estate' which was also applicable of the words throughout the state of the madras except inter a indicated the which it was clear that it the existing the law relating to the land - tenures the words 'estate' did not include of the land the ryotwari pattadars and therefore the impugned legislation was held not to be saved in respect of the land from south Canara district which was held as ryotwatri pattadars by the litigants before the supreme courts.

(33) The learned counsel particularly relies on the observations in paragraphs 13 of the this decision of which describes the broad features of the system of ryotwari pattadars. Their lordship observed as follows in this connections:

'The holder of ryoetwari in pattas used to hold land on lease from Government. The basic idea of ryotwari settlement in that every bit of the land is assessed to a certain revenue of the and assigned of a survey number to for a period of years which is usually thirty on that land. But it is open to the occupant to relinquish his land or to take new land which has been relinquished by some other occupant or become otherwise available on payment of assessment ...........

Though, theoretically, according to some authorities, the occupant of ryotwari land held it under an annual lease [see Macleane, Vol I, Revenue settlement, p. 104], it appears that the in fact the collectors had no power s to terminate the tenants holding for any cause whatever except failure to pay the revenue or the ryot's own relinquishment or abandonment. The ryot is generally called a tent of Government of but he is no not tenant of from years to year and the cannot to is outset as long as he pays the land revenues assessed. He has also the rights to sell or mortgages or gift the lands in or lease is and the transferee becomes liable in his place of the revenue. Further, the lease of the ryotwari pattadar has no rights except those conferred under the lease and is generally of sub = tenants of at will liable to ejectment of at the end of each year. In the Manual of Administration, as quoted by Baden - Powell in Vol, III of Land systems of British India at p. 129, the ryotwari tenure is summarized as that:-

'of tenant of the state enjoying a enacts right which can be inherited sold or, burdened for debt if precisely of these manner as a proprietary rights subjects always to payment of the revenue of due to the state.' Though, therefore, the ryotwari pattadar is virtually like a property and has made of the advantages of such a properties, he could still relinquish or abandon his land is favor of that the ryotwatri pattadar was never considered a proprietor of the land under this patta, though he had many o the advantages of a proprietor.

According to Mr. Nat these feature of land held as ryotwari pattadar in the south Canara districts of madras are analogous to the rights and liabilities of an occupants in Berar and therefore it is urged that he should not b considered to be holding land which answers the description of 'estate' within the meaning of Article 31-A[2][a] of the constitution.

(34) It is not possible the accept this contention of mainly because the precise rights in the which the tenure - holders of like an occupants Berar and hold land under the M.P. Land Revenue Code have been the subject - matter of examination by their lordship of the supreme court in : [1962]1SCR733 , and as shown f above the rights of an occupant in Berar governed by the Berar Lands Revenue Code of the 19238 which was existing law when articles 31-A was introduced into the constitution are in no way different I view of the pronouncement of their lordships of the supreme court that such an occupants hold that the answered in the definition of 'estate' in the existing law relating to land tenures. It isn't open how to the petitioners of urge of the that the landholders petitioners which was an 'estate'. The case from Kerala is easily distinguishable also from because there was no existing law which governed land held by a particular petitioners in : AIR1962SC723 , because they were shown to be holding under leases granted by the Government according to the instructions of the Board of the Revenue. There is word to difference between the status of persons holding land under lease from the Government and occupants in Berar. Under the Berar Land Revenue decode of 1928 f which was the of Article 31-A[2][a] of the constitution the petitioners were occupants and not holding land a lessees from the government. The manner in which the lands could be granted by the government of lessees is separately provided in section 55 of the Berar Land Revenues code and it also provided to in the same section that the provisions of section 53 and section 54 of the Berar Land Revenues code will not the apply to such he leases. In view of their clear provisions of law it is difficult to uphold to the contention of the petitioners that temerity the because of system of land tears in respect of unlamented land in Berar was analogous to the ryotwari systems of the occupants would be called classes of the Government or were in any manner of analogous to ryotwari pattadars in the south canara district of madras.

(35) Shri Nat particularly relied on the provisions for relinquishment of the land held by the occupants and dispose of the same manner under section 60 and 61 of the Berar Land Revenue code. It is not possible of the hold that merely code. It is not possible to hold that merely because of tenure - holder is entitled under the law to relinquish holding he would may the proprietor o the land. This provisions of be made for preservations of agricultural property of and also for protecting the rights of the and state as overlord. It is interesting to note that an occupants may relinquish his rights, that is rights them resign them in favor of the Crown in the section 60m of the Berar Land revenues Code but relinquishments of the made subject of any rights , tenures, encumbrances or equities lawfully subsisting in favor of any persons other than the crown or the occupants and a notice is required to be given the such relinquishment. In the case of relinquishment of any sub - division of a survey number under section 60, the Deputy Commissioners is required to offer the right to occupy of such sub - division of the such premium as he thinks of the same survey number/ the land so relinquished by the occupant weathers full survey number of the sub - division of the survey number was liable to be disposed of by the procedure prescribed by section 53 which governs of the disposal of unaccented land. It is also noteworthy that what is disposal of under section 53 of the Berar Land Revenue Code did the right to occupy unoccupied unalienated land nor whosoever is granted this rights get of the on an occupants of the within the meanings of the section 54 of the Berar Land Revenue of Code. It must be held, therefore that the land held by the petitioners as landlords come within the local equivalent having the same meaning of the estate of then the existing the law relating to land tenures the force in berar within the meaning of Article 31-A[2][a] o the constitution. In view of the this position, the impugned act or any of its provisions viz., the Bombay Tenancy of and agricultural Lands [Vidarbha Region and Kutch Area] Act, 1958, was immune from challenge on the ground that it is inconsistent with the or takes away or abridges of the rights conferred to by Articles 13, 19 and 31 of the constitution notwithstanding anything's contained in Article 13 of the constitution.

(36) The learned Additional Government Pleader appearing for the state also relied on the amendment effects in Article 31 - A by the Constitution [Seventeenth Amendment] act, 1964 which come into force on 20th June 1964. By this constitution Amendment Act, sub clauses [a] of clauses [2] of Article 31-A is substituted as follows: This amendment d is expressly made retrospective because it states that it shall be always deemed to the have been substituted for sub - clauses [a] follows:-

'[a] the expression 'estate' shall in reaction to any local area, have the same meaning as the expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include:-

[1] and jagir, in am or muafi or others similar grantee and in the state, of Madras and Kerala, and Janmam Rights:

[2] any land held under ryotwari settlement;

[3] any land held or left for purposes of agriculture or for purposes ancillary thereto, including waste of land forest land, land to including pasture or siestas of buildings and others structures, or occupied by cultivators of land, agricultural laborers and villages artisans'.

(37) Relying on this act latest amendment of the definition of 'estate' the learned Additional Government o pleader urged that the lands held by the petitioners could in may case answered the description of third category viz., land held or let for purposes of agriculture or for purposes ancillary thereto and would be an 'estate' within the meaning of the Article 31-A of the constitution.

(38) The learned counsel for the petitioners has tried to meet this contention of urged to on behalf to the state by showing that if there was no law relating to land tenures having the same meaning as the expression 'estate' or its local equivalent in the existing law relating to land tenures in forces then the amendment effected in Article 31-A[2][a] a by the constitution [seventeenth Amendment] Act, 1964, should make is that the Vidarbha Act, i.e., the Bombay Tenancy and Agricultural Land [Vidarbha Region and Kutch Area] act, 1958, would be an invalid piece of legislation being contrary to the and violative provisions articles 14 and 31 of the Constitution and would to that the extent be a dead piece of legislation being on article 13[2] of the constitution. The arguments is that articles the 13 [2] of the constitution expressly of prohibits the state from making any law which takes away of the abridges the rights conferred by part III of the constitution and any law offered in the contravention of the this clauses shall to be extent of the contravention, be void. If the law made prior to the introduction of the constitution [Seventeenth Amendment] Act, 1964 is void because it takes away or abridges the rights conferred by the Part III of the constitution of under article 13[2] of therefore the lives cannot be resuscitated of in such an act merely by making the seventeenth Amendments of introduced I the constitution of retroactive. There will be considerable to force in this argument were it possible to uphold the earlier contention of the petitioners that under the amended definition of 'estate' in article 31-A[2][a] there was no local equivalent in the existing law relating to land tenures of 'estate; or in others worse the lands held by the petitioners of were to 'estate' within the meaning of that expression in unamended provisions of the Article 31-A[2][a]. As I have held that land held by the petitioners, must answers the description of the expression 'estate' in view of the local equivalent in the existing law relating to land tenures in force of the constitution, this contention of must also be rejected.

(39) In view of the position reached therefore that he Article 31A gives a complete of answer to any challenge of founded either on article 13 or Articles 14, 19 or 31 of the constitution., it is to possible for the petitioners of challenge the validity of section 38 [7] of the vidarbha act because it is shown to violate or abridge any the fundamental rights to the petitioners. That challenges fail on the this short ground.

(40) It is, therefore necessary now to consider the second argument on behalf of the petitioners founded mainly on the constructions of section itself as amended by Maharashtra Act 44 of 1963. The amended provisions have been reproduced above and it would show that the only amendment effected by maharastra Act 44 of 1963 in this sub section of section 348 is the addition of the words 'or partition' after the words 'transfer' it two places the sub -section. The main contentions of the petitioners is that member of a joint family owning property in land by reason of the fact that the is members of the family and partitions among the joint new rights ownership which he did not previously possess. Even after the amendment effected by Maharashtra Act 44 of the 1963, it is urged, that disability it created only on that the type of tenure - holder who has 'Acquired' any land by transfer or partition after the 1st day of August 1953. The phrase 'acquired any land' whether by transfer or patron postulates acquisition of ownership's in respect of the land by a person who had no pre - existing right of ownership in that land. The use of the words 'acquired' has a definite implication which cannot be lost sight of in the constructions of the sub - section [7] of section 38 inspite of the amendment effected therein. According to the learned counsel of the petitioners, a person is said to have 'acquired' something's when he becomes owner of that things for the first time as result of the trains action in other words the rights which become vested in a person vis--vis pieces of the property are conferred on him for the first time did the person is said to have 'acquired' that he property. It postulates non - existence's of those rights in that person prior of the such acquisition. The use of the words 'acquired' therefore, according to the petitioners itself suggests that the sub - section affect hat class of tenure holder who come on the lands for the first possess the such viz., tenure holder who didn't possess the rights of tenures holder prior to the transfer or partition. According to this lime of reasoning, the addition of words 'or partition has made no difference of as to the class of tenures of holder who are hit by the restrictions of the imposed in sub -section [7] of section 38 and the class is those tenure holders who acquired or obtained rights of the tenures holder for first time either of a tenures holder for the first time either of as result of transfer or as result partition.

(41) It is also urged that even though the amendment was effected in sub - section [7] of the section 38, no other amendment is effected to far as this aspect of the concerned is other sub section of section 38 of the parties of the Act. In this provisions of sub - section [2] of the section 38 which still continues to govern to the rights of tenure holders for whom a special provisions is made in sub - section [2] of the section 38, sub - section [2] of the section 38 is as follows:

'[2] Where the landlords of the following category namely;

[a] a minor

[b] a widow

[c] a serving member of the armed forces. Or

[d] a person subject to any physical or mental disability, then if the has not given a notice and made an application as required by sub =section [1], a such notice may be given and such application may be made:-

(A) by the landlord within hone year from the date on which [I] in the case of category [a] he attain majority, [ii] in the case of category [c] he ceases to serve in such force, [iii] in the case of category [d] he ceases to be subject to such physical or mental disability, and.

(B) in the case of widow by the successor - in - title within one years from the date on which the widow's interest in the land ceases to exist:-

Provided that where a person of such category is member of a joint family the provisions of this sub section not apply it at least one member of the joint family is outside the categories mentioned in that sub section unless the share of the such person in the joint family has been separate by metes and bounds before the prescribed date and the Tahsildar on esquire is satisfied that the share of such person in the land is separated having regard to the area, assessment, classification and valve of the lands, in the same proportion as the share of the person I the entire joint family property and not in a large proportion.

Provided further that where land is held to by two or more joint landlords the provisions of this sub section shall not apply if at least on joint hold is outside the categories specified in clauses [a] to [d] to this sub section.'

(42) According to the petitioners the land holders, or landlords who are of the specified categories, viz., minor, a serving members of the armed forces or a person subject of any physical or mental disability or widow have been given a special right to have been given make an application for possession of the land required by section 38 [1], after the date mentioned in sub -section [1] of section 37, which was 15th day of February 1961 till 31st March 1961. Different period are prescribed for persons in different categories of landlords for whom a provisions of made in sub section [2] of section 38. Under the first proviso to this sub section the right of giving a note as provided that the facility may not be available to a person under disability of unless where person of such category is a member of joint family, of whom any other member of such family is outside of the categories mentioned in that subsection. In other member of such family is out who is minor, a widow, asserting members of the armed forces or a persons subjects of the physical or mental disability is a member of the joint family of which at least one or other member of is outside this category then this privileges of the extended period of giving a notice may not be available. But this exception against is made subject of the one contingency and hat contingency is that he benefit of the extended period will be restored to such person under disability of the share of such person in the joint family has been separated by metes and bounded before the prescribed date which is the 30th June 1959. In other words what this proviso means is that partitions of be meters and bounds which is fair and equitable has take place of by 30th June 1959 in a joint family I the which one of the land holders office of the specifies categories, that is, a minor, a widow a serving member of the are forces of or person subject to any physical or mental disability then the right of such person to give note terminating the tenancy of and apply for possession of is extended as provided includes [a] of this sub section. Now, the argument is if sub - section [7] section 38 such landlord of would not have such rights. The obvious anomaly of arising the from such interpretation it is contended, can only be avoided by the harmonizing the two provisions in such a way as to apparent of conflicted contradiction of the which is only possible by constructing the sub section [7] of section 38 which uses theirs 'acquired any land of the transfer or partition' to mean acquired ownership of as a tenure - holder for the first time as result of a tenure - holders who had pre - existing right of ownership of interest in the property as owners.

(43) There's yet another of aspect on which also reliance displaced on the behalf of the petitioner. The vidarbha act was put on the statue book enforced to the parts of the then state of the enforced in the state Bombay and now of Maharashtra called western Maharashtra. This legislation was the Bombay Tenancy and agricultural land act, 1948, which was operatives of in western Maharashtra and the Hyderabad Tenancy of agricultural Land act which was in force the Marathwada district merged in the bi - lingual state Bombay as a result of the reorganization of the state in 1956. One of the objects of state in the preamble of the vidarbha act is to amend the law which govern the get regulations of landlords and tenets of agricultural land and sits so for as the Vidarbha Region and the Kutch area of the state of the Bombay are concerned with a view of the 'bringing the status and the rights of tenants as are as possible of the line with those prevailing in certain other parts the state. Now it is not disputed that the rest of the area of the state of Maharashtra that is area of the state of Maharashtra, that is area other then eight districts vidarbha a tenures - holder or a landholders of who acquires of the result of partition of among members of the joint family of it not prohibited from determining tenancies of his tenant if the needs the land bona fide for personal cultivation. There is therefore no reason to the hold that protected lessees in Vidarbha were intended the tenet ad get possession after disruption of the land in the family. There is no such prohibition of the risk of the states of Maharashtra on a tenure - holder and it is contended that there was o reason so to interpret section 38 [7] of the act asto create invidious distinction of the between one class of the tenure = holder of landlords of the other when the obvious intention of the legislation was to brings intention of the bring the law relating to landlords and tenants if Berar on par with that in the rest of the state of Maharashtra.

(44) The learned counsel for the respondents of and the state have resisted this interpretation of section 38 [7] on the grounds that the word 'acquired' issued in loose and comprehensible sense is section 38 [7]. It is in thence of the 'obtained' or 'got' and the words 'acquired' has no special significance and should be interpret accordingly. If so interpreted it would only mean that the tenure - holder who obtains and lay by transfer or partition would be prohibited if such land is obtained after 1st August 1953 by evicting the lasses who were already on land prior to that date.

(45) It is next urged that a member of a joint family who acquires of land on partition of cannot e aside to be tenure - holder who has acquired any land by transfer. Elaborating this contention, it is point out that he words 'tenures holder' has a special meaning given to is under the M.P. Land Revenue ode in the Section 2 [20] of which means a Bhumiswami or a Bhumidhari. What is urged is that unless a members of the joint family who acquires land as result of partition is regarded as Bhumiswami, he cannot be said to be a tenure - holder who has acquired land by transfer or partition and therefore is not saved from the mischief of his section. Prior to partition or disruption of the joint status of the members of the joint family. As an individual member of the joint family would not himself be a tenure - hold until after partition, and correction of the record - of - rights it cannot be said that a members of the titled to give note of terminating the tenancy of get possession under section 38 [1] of this vidarbha act. There is no substances in this contention.

(46) Section 38 [7] of the Vidarbha Act, prior to is the amendments by Maharastra Act XLIV of 1963 of come to be interpreted of in several of decisions of the Maharashtra Revenue Tribunal at Nagpur, on the question whether the words 'Transfer' in that section in clouded partition among the members of the joint family and therefore a person who claimed to terminate the tenancy of tenant on the grounds that the bona fide requires the land for personal cultivation's of the after the field or land under the tenancy was allotted to his share at such partitions of was held not entitled to do so it partition took place after 1st august 1953, while the tenant was no the land prior to the date of the partition.

(47)The matter was, therefore, considered by a full Bench of this court in special civil application of NO. 319 of the 1961 which come to be decided on 18-2-1963, [reported in : AIR1963Bom163 FB]. According to the full Bench decision partition of was not a transfer within the meaning of section 38 [7] of the vidarbha act. In reaching this conclusion, the full bench observed as follows in paragraph 6 of its judgment; : AIR1963Bom163

Mr. Dharmadhikari has, therefore argued that as the person to whom a land is allotted on partition acquires by the process of partition the interest of other coparceners in that land, he can be said to have acquired that land on partition. This argument is not correct, for as observed by the privy council in Mt. Girja Bai v. Sadashiv Dhundiraj, 43 Ind App. 151: AIR 1916 PC 104 partition does not give him a title or create a title in him, it only enables him to obtain what is his own in only definite and specific from for purposes of disposition independent to the wishes of his former co - shares. At p. 159 [of Ind App] : [at p. 107 of AIR] their Lordships of have quoted Sarkar's translation of a passage in Brimitrodava by Mitra Misra. Which is as follows:

'For partition is made of that is which preparatory right has already arisen, consequently partition of cannot property right. Indeed what is effected by partition is only the adjustment of the proprietary right into specific shares'. Partition does not, therefore give the person to whom a land is allotted, any new title or create a title in him to that land. He was already the owner of the land along with other coparceners and partitions only enables him to acquires of exclusive title to the that land. As therefore, in the words of the privy council portion only enables of him to obtain in a definite and specify from the land, which was his own, the it cannot be said that the he has acquired that land. By the process of the partition he no doubt acquires the interest of other co - shares in that the land but the worse in the sub -section are acquired any land. It does not contained the words or any interest therein. Such as are used in section 119 - B.

(48) In subsequent paragraph the Full Bench referred to another difficulty is accepting the contention of the tenant because of the conflict between sub - section [2] and sub - section [7] of section 38. In this context the learned chief justice observed as follows:

'Under sub - section [7], a tenure - holder. Who has acquired any land by transfer after August 1, 1953, has no right to terminate the tenancy of the tenant, who is protected lessee and whose right as such protected had come into existence's before the transfer. This sub -section applies to protected tenants only while sub - section [1] and [2] apply to all tenants including protected tenant. As pointed out above sub -section [2]gives a right to a person, who belongs to one of the categorizes referred to in this sub - section to terminate the tenancy of his tenant, even if he is a protected tenant, after the June 30, 1959, if his share in the family property has been separated by metes and bounds before this date. He would be able to the exercise this rights, even if the partition has taken place after the August 1, 1953, but before June 30, 1959. This right will not be available to him at least in respect of protected tenants if the partitions of the has taken a place after August 1, 1953 and is regarded to the legislature to treat partition as a transfer the date specified in the proviso as the sub - section [2] would find have been partition as same as is mentioned in sub - section [7], viz., August 1 1953, The usual rule of the interpretation of is to read the different provisions of an act in such a manner as to avoid a conflict between them. If therefore sub - section [2] and [7] are to be reconciled, as they should be the word, 'transfer' as used in sub - section [7] cannot be held to include a partition.

(49) In paragraph 9, the Full Bench also has answered one of the submission of the made on behalf of the respondents tenants is this case also viz., that the legislation of being specially enacted for the benefit of as tenants should be interpreted in their favour as far as possible. With regarded to such contention the learned chief justice observed:

'It is however, necessary to remember that while the Act imposes several restrictions on landlords it also contains positions of their lands on certain grounds, subject to the conditions specified in the act. The object of the act cannot therefore be said to have been frustrated, if the restrictions on the landlords of are not extended, beyond those which are imposed by the Act.'

(50) The question that falls for consideration, therefore is whether the manner in which the amendment of is effected in sub - section [7] of section 38 alters, and if so to what extent the rights of tenure - holders of landlords who acquired land as result of partitions effected after the tenant of was indicated on land while the property was joint family property. It is to be remembered hat excepting the addition of the words 'or partition' after the words transfer change has not been effected either in the strut of sub - section [7] of or in any other sub - section of section 38 or the any other part of the act so far is material and relevant in constructing the effect and ambit of the change brought about by the amendment in sub - section [7] of section 38 by the maharashtra Act XLIV of 1963.

(51) It would thus appear that the restriction is still confide to a tenure - holder who has acquired any land by the transfer or partition after the 1st day of the August 1953 vis -a- vis the protected tenant. In my judgment, the manner of the acquisition or the event which entitles a tenure - holder is indicated in sub - section [7] of section 38 as 'acquisition of land' Now, the words 'Acquistion' and the verb 'acquire' have a definite meaning recognized in judicial pronouncements whenever used in a statute relating of the to property. One of the reason which has been accepted by the full Bench of this court in the interpreting this unattended section 38 [7] of the Vidarbhar Act was the use of the words 'acquired' in sub - section [7] which is even now retained after the amendment. According to the shorter Oxford Dictionary to acquire means to gain or to get as ones own [by one's own exertions or qualities]. Its secondary meaning to gain or to get come into possession of the use of the words 'acquire' necessarily postulates a change of relationship of vis--vis thing or property which is said to be acquired and which was not existing before. The notion of ownership of property implies, various of the components of rights, viz., that of possession enjoyment, destruction, alienation, exclusion of and other incidental to the rights of ownership. A person who acquires a thing or property gets this right for the first time from someone of else of otherwise the use of the words 'acquire' is inappropriate and will not convey the correct meaning. In this context the decision of starry v. Graham [1899] 1 QB 406 may be useful. In that case the question was whether a person who had been bona fide in practices as a patent agent prior to the passing of the patents, Designs of Trade the Marks act 1888, and who was consequently entitled under the Act to be registered as a patent agent could be said to have acquired a right which was saved from the operation of the Act by section 27. The petitioners claimed that having bona Fide acted as a paten agent and in practice as such prior to the passing of the act he was entitled to the be registered with out payment of fees because he had passing to he act he was entitled to be registered with out payment of the fees because of had acquired a right under section 27 section 27 of had a saving clauses of which protected the rights of a person for an act done rights acquired or liability incurred before the commencement of this act and the question that was in practice as a patent agent. In negating the contention the High Court observed as follows:

'The answer to that seems to me to be that 'right acquired' means some specific right which in one way or another has been acquired by an individual, and which some persons have got and others have not got. It does not mean 'right' in the sense in which it is often popularly used. In oneness of in which the law foes not forbid. Every one has rights to wear spectacles of for instances, but he does not acquire right to the were them by the fact the he does the law of does not forbid, and a law were passed for bidding people to the been weaning them before the act or not. If a person had been wearing them he has done so not because he had acquired a rights to wear them, but merely of because of the law had not forbidden him to do so. I the same way before the passing this act, anybody had a right to call himself a patent agent, that is to say the law did not forbid him to do so. A right enjoyed in that way of is not within the meaning this saving clauses, a 'rights acquired'.

The question came up in another form before their Lordships of the supreme court when called upon to interpret the provisions of the Bihar private Forests act in Guru Datta Sharma v. State of Bihar : [1962]2SCR292 . The question of before the supreme court was whether the government could be said to the have 'acquired' property within the meaning of section 299[2] of the Government of India act, 1935 of when the Government took the management of private of forests under the Bihar Act. In repelling the contention of the petitioners, that taking land for management amounted to acquisitions of their lordship of observed in the paragraph 30 of the judgment as follows after referring to the decision of the Belfast case, 1960 of AC 490.

'We consider the principles of laid down in the Belfast Case 1960 AC 490 [Supra] apt as an aid to the constructions the content of the expression 'acquired' in section 299[2] of he Government of India act, 1935. The contention urged by the learned counsel for the appellants that deprivation of the landholder of the right of management and control over the forest without in his legal title thereof or benefit call enjoyment of therefore being affected amounts to Acquistion of the land within the section 299[2] of he Government of India, Act 1935 must be rejected. The extract weave made earlier from the judgment of Viscount simonds affords a sufficient answer to a submission that the right of the landholder and possession was itself a right of the property and as this had been taken over it constituted and acquisitions within the constitutional provision. Property, as a legal concept, is the sum of the bundle to rights and in the case of tangible property of would include the rights of the possession the right to enjoy the rights to distort the right to retie, the right to alienate and so on. Al these of course would be subject of the relevant law, procedural or sub substantives bearing upon the each of the these incidents of but the strands that make up the total are not individually to the identified as those constituting property. So understood, there is in o scope for the contention that the imposition, so to speak for compulsory governmental of agency for the purpose of the managing the forest with liability of imposed to account of the for income as laid down by the statue is an 'acqusition' of the property itself within the section 299[2] of the Government of India Act 1935.'

(52) In arriving at this conclusion, their lordship have considered the previous decisions of he the supreme court reported in Dwarkadas v. Sholapur spinning and weaving co. Ltd. : [1954]1SCR674 to which references was made by the learned counsel for the respondents even in this case. It would therefore appear of that whenever property is said to be 'acquired'; it postulates absences of pre - existing overate in the property and the change as a result of acquisitions of must mean getting ownership of the property with all its component incidental rights. The Calcutta High Court has taken a similar view in Sasadhar Chandra v. Tara Sundari : AIR1962Cal438 . In this case the provisions of under consideration the person acquiring it had no interest in the property. The done of a gift of the devisee under the will aside the had not title or rights of the property which he gets as gift or devise. This decisions is also useful of regarding the view of that courts as to the rights of members of the joint family and the effects of partitions of the family property. In this context the court observed as follows:

'The disruption of a Hindu coparcenery by partition results in the distribution of the coparcenary property amongst the coparceners to be enjoyed by each in severalty. In order to ensure the other coparceners cease to have title on properties not allotted to them. No coparcener acquires any new property by partition. In lieu of his undivided share in the whole state of he is given exclusive right in the properties allotted. There is no new acquisition of property by the Coparcener. It is immaterial that in the case of the Dayabhag coparcenary there's no unity of ownership but only unity of possession of enjoyment. A coparcener might have his defined share in the coparcenary property during the substances of the coparcenary. On disruption ,his retrained in the coparcenary is cry stalled in the coparcenary property. Not does the allotment amount to Acquistion of shares of the other copartners in that property:

(53) With respect of the effect of partition must be held to be so as observed in this decision. It is precisely on this principle that this court in the full Bench case has already held that a person an not be said to have acquired property as result of partition.

(54) A Similar view of the meaning of the word 'acquire' used in the tenancy of legislation is accepted in the Kerala High court in NaraYanan v. Sinaba AIR 1953 Trav 397. The question there was whether a person could be said to have acquired interest in holding of a verumpatacmdar in the case of the devolution of the right on the heirs of the deceased lessee. Rejecting this contention it was observed.

'The words 'acquired' signifies the obtaining of the title as a result of positive act done by the acquirer and will not apply to case where on account of death the rights devolves upon the heirs of the deceased lessee.'

(55) In the case of the members of a joint family who have pre - existing rights in he property itself it could hardly be said that they acquired and land or property in sense in which the words 'acquired has to be understood as a result of partition.

(56) The question then arises as to what is the effect of the amendment made by Maharashtra act XLIV of 1963. The respondent's contention is that the amendment was necessary precisely because the Full Bench of this court interpreted unattended sub - section [7] of section 38 as not covering of Acquistion of land by transfer and the effects of the amendment would be rendered nugatory if the same result is to follow because of retention of the 'acquired'. It does not appear to the alteration of the legislature to debar every kind tenure - holder intoning to terminate the tenancy of his tenant in respect of land obtained by partition. The retention of the phrase 'acquired land' does not fit in with any such intention of he being attributed to the legislature. The decision of the full Bench was well known and must be presumed to be known to the legislature and it was clearly held that a person does not acquire land by partition because a members of the joint family is already on owner of land and he does not become an owner as result of partition. The anomaly of the conflict which was pointed out between subsection [2] and sub section [7] of section 38 was also pointedly referred to in the decision of the Full Bench, but the legislature did to think inadvisable to make any change of in sub section [2] of section 38. If it was the intention of the legislature to exclude all tenures holder from terminating of the tenancies in respect of land as a result of partition, retention offset section [2] of section 38 in the form in which it was originally enacted and continuing the use of the phrase 'acquired land by continuing the use of the partition' is intended to restrict it effect of only the those classes of tenure - holder who did not have any rights in the property or pre - existing right in land prior the partition of but go such right to ownership of the for the first time in persons who had n o pre - existing right but where a member of the joint family had pre - existing righting property partition cannot be said to create or confer the rights of the ownership on such person having pre -existing right in the property so as to fit in with the use of the phrase 'acquired land by transfer or partition'. It is not difficult to conceive of case where a person not having not right in property prior t partition get such right as result thereof of the property. It is not that ever member of a joint family has right in the property of the family. The right depends on his or her relationship with the amity and whether the right is acquired by partition or by marriage or some other even which creates such a rights. The right partition postulates pre - existing right in the property. The tenancy Act i.e., the Vidarbha act defines a person as including joint family and joint family is defined as meaning an undivided Hindu family. By and large, there would be berry few three persons or group or units the members of the who by custom or usage aragonite in ester of residents and would therefore conform to the definition doff joint family in the Tenancy act. The very concept of the joint family as an undivided of joint family in the Tenancy act. The very concept of a joint family as an undivided Hindu Family which has been specially defined show that the logician was fully aware of the incidents of right to property among the members of the legislature in this regard in the patently bought out by some special provisions made in the act itself. Section 38 [2] is one such provisions of where special rights which are created in favor of minor, or widow or a serving member of the armed forces or a person of subject of any physically mental disability are protected If such a person is member of joint family. Another indicate is found in the provision made in section 38 [3] [d] under this sub - section one of the conditions required to the satisfied by the landlords is that the and leased stands in the record - of rights of the in any public or similar revenue record on the 1st day of the August 1957 and thereafter the during the period between the said that and the date of commencement of the vidarbha act in the name of the landlords himself or any of his ancestors. But from this requirement person who succeed to the property by succession are excluded. This obviously showiest hat the legislature was aware that he members of the undivided Hindu Family who have unit of ownership possession and deter mentioned and that the names of their ancestries from whom they claimed right by survivorship may be the record. This specific provisions of the share[ contract with the those classes of landholder of who do not get benefit of the names of their predecessors - in - title being in the record - of rights on he prescribed dates because title is derived by succession or by transfer.

(57) All this discussion will therefore, show that retention of he words 'acquired land by partition' must be given three full meaning and a person cannot be said to acquire land by partition, if partition is amongst ire the member of the an undivided Hindu family who were place as a result of partition if the changing the mode of enjoyment. As observed by the privy council in Girja Bai's case. 43 Ind app 151: AIR 1916 PC 104

'In Hindu Law. 'Partition' doesn't mean simply division of property into specific shares it covers as pointed out by lords Westbury in the Approves case [1867] 11 Moo Ind 75 both 'division of the title and division of property' In the Mitakshara, Vijanaeswara defines the words 'Vibhaga' which is usually rendered in to English by the words 'Partition' as the adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate. Mitra Misra explains in the viromitradaya the meaning of this passage he shows that the definition of Vijanaeswara does not mean exclusively the division of property into specify shares as along giving right of property but includes the ascertainment of the respective of rights to the individuals. Who claim the heritage jointly'.

He says : 'For partition issued of that in which proprietary right has already arsenic consequently partition cannot property be set forth as means of the proprietary right. Indeed, what is effected by partition is only the adjustment of the proprietary right in to specific shares:'

.................................. 'So far as their Lordships are aware nowhere in the Mitakshara is it stated that agreement between the all the coparceners is essential to the disruption of the joint status or that the severance's of rights can only be brought of about by the actual division of and distribution of the property led jointly. If this were so and there were minors in a joint undivided family partition would be impossible until they ad all attained majority a position which is expressly combated and negative in the viromitrodaya. It fact than later writers leave no room for doubt that 'Separation' which leave no room for doubt the severance of he status of jointures is a matter of individual of volition. For example Nillkkantha the author of he byavahara mayukha expressly laws down the even when the is a total absence of common property a partition is effected by the mere declaration 'I am separate form three' for partition is a particular condition of the mind and the declaration is indicative of the same................... But the following gloss in the viromitradaya appears to their Lordships conclusive of the rule of law under the Mitakshara, 'here again' it say 'partition' at the desire of the sons which expression it clouded grandsons of the great grandsons whether I the lifetime of the father or after his demise may take place by the choice of single coparcener. Since there is no distinction.'.

Later on at page 161 [of Ind App], [at p. 108 of AIR] their lordships referred to Madho Parshad v. Mehrban singh [1891] 17 Ind 194 and observed.

' Partition does not give him a title to create a title in him, it only enables him to obtain what is his own in a definite and specific from the purposes of disposition independent of the wishes of his former co - shares'. It is, therefore clear to my mind that even after making the amendment is section 38 [7] by the addition of words 'or partition' the legislature did not intend touring within the mischief of the section by this amendment, the rights of those landlords who were owners of property fro before of and who chose to owner divide property as a result of partition which was only choosing different mode of enjoyment of the property. On the other hand what is intended to be hit even after the amendment is that the class of landlords who owl acquire the property to the class landlords who would acquire the property for the first time as result of partition or under the cloak of partition. This may happen for instance if a Hindu father in respect of the separated or self - acquired property himself effects of partition of the that property the son may have no interest before the partition but they acquire intuits fore first time as a result acquire infest of the respect of what as his sole property. This may also happen in the case of other similar partitions effected by person who are sole owners of property who was to share after the partition with their close regulations out of the love and affection or for any other reason. In my judgment, the addition of words or partition must be confined to that class of partition where the landlord gets a rights therefore of action does not include a landlord who was per - existing such landlord could not be said to be acquires land as result of partition. There is a another reason why such constructions of seems more can of the with the retention of the words 'transfer and partition'. In construing the sub section if would be permissible for the petitioner say that the use of the words 'partition' must take it colour from the context associated with the words 'transfer'. The phrase being acquired any land be he transfer of postulates acquiring or becoming owner of property as a result of transfer. The association of the words 'partition' with 'transfer' in this context must, therefore lead to the inference of that the use of the words 'partition' was also intended to be understood in the same sense as 'transfer'. This mode the construction of and inferences would be permissible in view of the fact that no other change has been made in the structure of subsection [7] of he section 38 is the spite of the view of taken by the Full Bench of this courts that the use of the words 'acquisition' points out to obtaining rights of ownership for the first time.

(58) It has also been argued on behalf of the petitioners of that one of the objects the law relating to landlord of and tenant of agricultural rights of tenants privileging in the western Maharashtra and Marathwada districts of the former state of Hyderabad which were merged first in the Bombay state then in the Maharashtra state. Now, there s no doubts of that the Bombay Tenancy and Agricultural Lands Act 1948, which is an analogous legislation on the subject landlords and tenants of agricultural land does not disentitle a member of an undivided Hindu family to take an application under section 29 read with section 31 on the ground of the partion. This has been so held by the Division Bench of this court in special Civil apply No. 104 of 1961 D/-16-6-1961 reported in Arwindlal v. Khandu, 1962 n LJ 65. In that case the Petitioners was a member of the joint Hindu Family which owned about 42- acres of alnd. On 20th December 1956, a partition as effected in which the petitioners of including the lands of the tenants against whom applications of were made the petitioner to the Mamlatdar for possession as being required bonafide for personal cultivation. The mamlatdar allowed the applications and that order was affirmed by he deputy Revenues of the tribunal on the grounds that there was no compelling necessity for the member of the family to the necessary for the member of the family to the separate for the one another. Repelling this view of the learned chief justice delivering the judgment observed as follows.

'It is necessary in law that any necessity for making a partition should exist since question regarding partition have arisen in may section 29 and under section 88 - C of the Tenancy act. We counts it necessary to the state when the correspondents of law it. I Hindu law partitions mentioned of joint status. It consist of definition of coparcener of in joint property and actual division of the property of by mentioned and boards is not necessary. Once that shares are defined, the partition is complete. The property ceases to be joint immediately the shares are defined and henceforth the parties hold the properties of tenant in common see Mulla's Hindu Law, 1959 Ed. Pp. 492- 493 every members of the an undivided Hindu family has an indefeasible right to deemed to partition of his own shares of any he may assets his right at any time of he chooses. Partition doesn't give him a title or created a title in him it only enable him to obtain what is his own in definite and specific from. It is n ot necessary that any necessary should exist or that there should be any circumstances of which compel him to ask for the separation. He may ask for the separation for any reason of the he deems of proper. But whatever be the reason, on account of which he wants of severance, which rights to obtain and assess the share, to which he is entitled cannot be denied. The other members of the of the family must submit to it, whether they like it or not .........The motive or the reasons of on account of which partition is effected have therefore on bearing on its validity.

* * * * * The Tenancy act does to take way or restrict of the right given by the law to member of he undivided family to effect partition. Subsection [2] of the section 31, specifies March 31, 1957 as the last date, before the which a landlord, who wants possession of his land either for personal cultivation of for any non - agricultural purposes of the must make an application to the mamlatdar. Sub section [3] extends this date in cases in which the and lord is a minor a widow or a person subject to member the armed forces. The provision to this sub - section state that the this sub section member of the armed forces. The proviso to this sub section state that this sub section to this sub section state that this sub section shall not apply, if the person of such category is member of a joint family unless the share of such person in the joint family has been separated by in joint family has been separated by metes and bound before March 31, 1958, and unless such person has got his proper share and not a larger one of the entire joint family property similar provisions have been made in the proviso to clauses [a] in sub - section [1] of the section 32 - F and in the proviso in sub - section [4] of section 33 - A recently of added to the act. By these provisions the legislature has therefore conferred benefits in on persons falling in the above categories in whose cases portion had been made before March 31 1958. It is therefore clear that the legislature intended that partition should have its ordinary legal effect even for the purposes of the tenancy act........'

I consider myself bound by the these observations of the and similar considerations must lead to an inferences of that in spite of the amendment effected the section 38 [7] but in the absence of any amendment either in the preamble or in section 38 [2] of the Vidarbha act ,it could not have been the intention of the legislation to take violent departure from the law of th and which recognized the rights off the members of the undivided Hindu Family to choose a different mode of enjoyment of property by effecting a partition of the property of which they were already owners.

(59) It is also to be remembered that the impugned rights of the citizens of any of the fundamental rights of the citizens after the incorporation of Article 31-A of the constitution. there is no valid reason why any pieces of the tenancy legislature avowedly put on the statute book to bring the law relating to the landlords and tenants of agricultural lands in line with similar statutes governing landlords and tenants of the agricultural lands in the rest of the state should be so interpreted as to make an invidious of distinction between them rights of landlords in his region as against the rights of landlords and tenants similarly situated but in other party of the state only in the matter of consequences flowing from partition among members of the an undivided Hindu family.on the other hand it would be more in consonance with the well accepted principle that the legislature knows of the need of its people and there interests and could not be attributed with the making a law ex facie containing discriminatory provisions and no other interpretation sought to be put on section 38 [7] after the amendment should be accepted. It is true that no provision of this act is liable t o be constitution put that a is all the more reason why court will have so slow to attribute an intention to the legislature in making a law which would be patently discriminatory knowing full well that the citizens or persons affected by the law will have the remedy to in respect of such a provisions of the statute. If the intention of the legislature of is to be gathered therefore it will not be appropriate not to attribute of the on intention to make discriminatory, law with regard to the make same under matter in a piece of the legislation specially enacted to make a provisions on the same topic in its region on the lines of the similar law in the rest of the state.

(60) It must, therefore be held in the case of all these petitioners who have pre - existing rights in the family property as members of the undivided Hindu family are no affected by partition of join family property whether effected after 1st day of the August 1953 or not in the respect of the land held by the protected lessees for date prior to the date of the such partition and section 38 [7] would be no bar to their making an application for possession of the land after the terminating the tenancy of such protected tenants. As all these cases have been decided on the main grounds that the amended provision of section 38 [7] barred the rights of the such petitioners the orders based on the this view of such petitioners, the order section 38 [7] are liable to the quashed.

(61) I therefore, quash the orders of the Maharashtra Revenue Tribunal in all these cases of the cases are remanded to the Tribunal for a fresh decision of th e according to law in the view of what the has been stated above. The tribunal shall examine of each case and find out whether the decision of the subordinate authorities is also based only on the interception of section 38 [7] and not on merits of the decision of other contentions raised by the parties. It is the found in any cases, that the decision of the Naib - Tahsildar or the appellate authority of based solely on the interpretation of the section 38 [7] regarding partition the Tribunal in its turn will quash the orders of the subordinate of authorities and send back or the case for a treat disposal to the Naib - Tahsildar for decision according to law on other matters. On the other hand if it is found that is any case other contention of the raised between the parties have also been decided then the tribunal may either retain the case on its file or finally decide the revision application or pass appropriate order the revision application of the pass merits of each case and decide whether the matter should be remanded for decision of any of the subordinate authorities.

(62) In view of the Tribunal's orders having been quashed purely on the question of the interpretation there will be no order for costs in any of these cases.

(63) Applications allowed.


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