S.P. Kotwal, J.
1. This petition raises important questions as to the applicability and scope of Section 214 of the Madhya Pradesh Land Revenue Code, 1954 (Act II of 1955), and as to its constitutional validity.
2. The facts upon which the petition is based are simple. The first petitioner is an association known as the ''Berar Provincial Patels and Patwaris Association, of which the petitioner Nagorao son of Haribhau Gaopande is the authorised representative. Nagorao also was at the material time the malik watan-dar patwari of several villages in Akola Taluq and the petitioners Nos. 2 and 3 were the malik watan-dar patels of several villages in Akola faluq, district Akola and in Malkapur taluq of Buldhana district respectively. The petitioners were appointed to their respective offices under the Berar Patels and Patwaris Law, 1900. To the provisions of this law and the circumstances in which it came to be passed we shall presently advert.
3. After the abolition of malguzaris and other proprietary rights in Madhya Pradesh by thy Madhya Pradesh Abolition of Proprietary Rights Act, 1950 (Act I of 1951), the law governing land tenures and the rights and liabilities of holders of land from the State Govt. had to be radically revised, and so the new Madhya Pradesh Land Revenue Code, 1954, came to be passed. It received the assent of the President on 5-2-1955 and was published in the Madhya Pradesh Gazette Extra-ordinary on 12-2-1955. By Section 1 of the Code it was to come into force 'in the whole of Madhya Pradesh from such date as the State Government may by notification appoint', except Section 242, with which we are not here concerned. The notification of Government brought the Act into force from 1-10-1955.
4. Section 214 of the Madhya Pradesh Land Revenue Code runs as follows:
'214. (I) At the end of one year from the date appointed for the corning into force of this Code or on any earlier date which the State Government may, by notification, specify, the Berar Patels and Patwaris Law, 1900, shall stand repealed and any right or claim to continue or to be appointed as a patel or patwari under the said law shall stand extinguished.
(2) Notwithstanding anything in sections 205 and 212, the powers, terms and conditions of service of patels and palwaris in Berar shall be governed by the Berar Patels and Patwaris Law, 1900, until it is repealed under Sub-section (1)'.
It will be noticed that the Section repeals the Berar Patels and Patwaris Law, 1900, from the end of one year from the date appointed for the coming into force of the Code, and therefore that law stood repealed on 2-10-1956.
5. It was the petitioners' case that the then State of Madhya Pradesh acting under Section 214, issued a notification on 25-6-56, declaring that as from 1-10-56 the watandari rights of the petitioners would be at an end and ordering that new patels shall be appointed by the Deputy Commissioners under Section 205 of the Code to the vacant posts. Government also purported to issue new rules governing such appointments.
6. The petitioners alleged that their rights as watandar patels and patwaris were hereditary rights and amounted to 'property' within the meaning of Article 19(1)(f) of the Constitution, and that since Section 214 of the Land Revenue Code purported to abolish those rights without payment of any compensation, Section 214 (1) was ultra vires, void and of no effect as it was in conflict with the fundamental right guaranteed to the petitioners under Article 31(1) and Article 19(1)(f) of the Constitution.
7. The original petition, it has to be noted, was filed on 20-8-56, that is to say, before Section 214 actually came into force on 2-10-56. The peti-tioners had applied for stay of the implementation of Government's resolution of 25-6-1956, referred to above, but stay was refused by this Court. In the meanwhile, pending the petition Section 214 came into force on 2-10-1956 and the State Government made appointments of new patels in terms of their Memorandum of 25-6-1956. The petitioners who had previously asked merely for a writ of prohibition prohibiting the State of Madhya Pradesh from giving effect to the provisions of Section 214 (1) and for other ancillary reliefs, sought permission to amend their petition. That permission was granted by us at the hearing of this petition. Pending the petition, also the State of Madhya Pradesh was, as a result of the reorganisation of States, substituted by the State of Bombay, By the amended petition the petitioners now ask for a writ of mandamus against the Government of the State of Bombay to reinstate the petitioners in their offices of patels and in their hereditary rights according to the Patels and Patwaris Law, 1900.
8. On behalf of the State it was contended that Section 214 was validly enacted and does not conflict with the constitutional provisions of Article 31, and in any event reliance was placed on Article 31(2-A) introduced by the Constitution Fourth Amendment Act, 1955, to justify repeal of the Berar Patels and Patwaris Law.
9. Another objection raised on behalf of the State was that the petitioner No. 1, the Berar Provincial Patels and Patwaris Association had no legal status and could not move this Court. The point raised, however, is in our opinion academic and is not a point of substance because the petitioners 2 and 3 can pursue the petition and the questions raised will have to be decided in any event.
10. Before we proceed to deal with the applicability of Article 31 of the Constitution and consider the effect of the amendment introduced therein by the Constitution Fourth Amendment Act, 1955, it is necessary to dispose of a fundamental question arising on the terms of the Article, prior to its amendment. On behalf of the State it was contended that the alleged rights which the petitioners claim had been affected by Section 214 (1) of the Code were not 'property' or 'property rights', and therefore there was no question of any infringement of Article 19(1)(f) or of Article 31 amended or unamended.
11. The territory known as the Berars former-ly belonged to the Nizam of Hyderabad who by virtue of Treaties made in 1853 and 1860 ceded them to the then British power. The ceded territory was formerly known as the Hyderabad Assigned Districts. In 1902 those districts became the subject of a perpetual lease to the British Government on payment of an annual rent. The territory was therefore treated as foreign territory and not part of 'British India though for all practical purposes it was under the sole administration of the British Indian Government.
12. Prior to the passing of the Berar Patels and Patwaris Law, 1900, from the earliest limes there existed these offices to which were attached rights and certain duties, for the performance of which the holder of the office was entitled to remuneration. The nature of these watandari rights is best described by Sir Alfred Lyall in his Gazetteer as follows:
'The patel was paid by rent-free land, money dues and dignities, the whole being grouped under the term 'Watan'. The office was, and still is, a most precious family possession heritable unless the Government violently changed the course of succession or ousted a holder. The land was the patrimony of the family which shares the profits and privileges according to the Law of succession. Under our rule the patel and his coadjutor, the pat-wari, receive only a fixed percentage on the collection, but the importance of their office is undimini-shed. The family is most tenacious of the dignities and small emoluments which pertain to the patelki or Man-pan or precedence in various ceremonies, and the possession of a site within the old village Garhi or walled enclosure. The title of patel is jealously preserved and pedigrees are tested when marriage is under treaty. The actual appointment to the positive duties of a patel lies with the Revenue administration, and the heir succeeds on a death vacancy unless he is quite unfit.'
13. The Berar Patels and Patwaris Law was enacted on 19-7-1900, by the then Governor-General, in exercise of the powers conferred by Sections 4 and 5 of the Foreign Jurisdiction and Extradition Act, 1879 (XXI of 1879). The law prescribes the Revenue unit in which patels and patwaris may be appointed and lays down rules for the filling of vacanoies in those offices. Section 7 prescribes that patels ad patwaris shall be appointed to hold office either for life or for a term not less than ten years where rotation is permitted. Section 8 lays down that the duties of the offices of patels and patwaris shall be personally performed by the holder of the office unless he is exempted or relieved from such obligation. Section 9 is of importance in the context of the contention raised that the right to the office is not property because Section 9 prescribes that the emoluments pertaining to the office of patels and patwaris shall he enjoyed solely by the person for the time being holding the office, or his substitute. Section 10 prescribes that the emoluments shall not be liable to attachment and sale in satisfaction of a decree or order of a Court, and Section 11 that they cannot be assigned, nor a charge created thereon, and every such agreement to assign or charge shall be void. Then follow the sections which prescribe how the claim to office is liable to be forfeited or terminated, and the parties are given rights of appeal and revisions against the orders of Revenue officers, enforcing any of the rules. Such then were the rights created by the Law of 1900 and the primary question that falls to be determined is whether having regard to their true nature they can be held to he 'property'.
14. The word 'property' as used in Article 19(1)(f) of the Constitution and in Article 31 came up for consideration before their Lordships of the Supreme Caurt of India in Dwarkadas Shrinivas of Bombay v. Sholapur Spinning and Weaving Co., : 1SCR674 and the word 'property' was given the widest possible connotation. Ghulam Hassan J. observed:
'Having regard to the setting in which Article 31 is placed, the word 'property' used in the Article must be construed in the widest sense as connoting a bundle of rights exercisable by the owner in respect thereof and embracing within its purview both corporeal, and incorporeal rights. The word 'property' is not defined in the Constitution and there is no good reason to restrict its meaning'.
15. No doubt in State of West Bengal v. Subodh Gopal Bose, : 1SCR587 Patanjali Sastri, Chief Justice, contrasted the terms of Clause (f) of Article 19(1) 'right . ..to acquire, hold and dispose of property .....' with the terms of Clause (1) of Article 31 'no person shall be deprived of property .....' and with the terms of Clause (1) thereof 'no property shall ..... be taken possession of or acquired .....' and he observed that the different terminology of the two Articles suggested a distinction, The distinction which he drew was between the right to property and the concrete or tangible property itself. According to the learned Chief Justice, Article 19(1)(f) was only concerned with safeguarding the right to hold, acquire and dispose of property i.e. the capacity of the citizen to do so & had no relation to concrete property. (See in this connection paragraph 7 at page 95, the material portion of which is given below.)
'7. There are difficulties in the way of accepting the view of the learned Judges below that Articles 19(1)(f) and 19(5) deal with the concrete rights of property and restraint to which they are liable to be subjected. In the first place it will be noticed that Sub-clause (f) of Clause (1) of Article 19 deals only with the rights of citizens, whereas Article 31 deals with the rights of persons in general. If Article 31 which is headed by the caption 'right to property' was designed to protect property rights of citizens as well as non-citizens, why was it considered necessary to provide for the protection of those rights in Sub-clause (f) of Clause (1) of Article 19 also? I do not think that our Constitution-makers could have intended to provide a double-barrelled constitutional protection to private property. Moreover, right to 'acquire' and 'dispose of' property could only refer to the capacity of a citizen. The word 'hold', which is inserted between those two words must, in my opinion, be understood to mean 'own', and not as having reference to something different, viz., rights to specific things owned by a citizen......'
16. This distinction was not accepted by the majority of the learned Judges in that case, and shortly after, in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swa-miar, : 1SCR1005 the Supreme Court reiterated its view that the word 'property' should be given a liberal and wide connotation. In that case the view of Patanjali Sastri C. J. was relied upon by the Attorney General and as to that Mukherjea J. observed at p. 289 paragraph 13:
'In the case of : 1SCR587 , an opinion was expressed by Patanjali Sastri C. J., that Article 19(1)(f) of the Constitution is concerned only with the abstract right and capacity to acquire, hold and dispose of property and that it has no relation to concrete property rights. This, it may be noted, was an expression of opinion by the learned Chief Justice alone and it was not the decision of the Court; for out of the other four learned Judges who together with the Chief Justice constituted the Bench, two did not definitely agree with this view while the remaining two did not express any opinion one way or the other.
This point was not raised before us by the Advocate-General for Madras who appeared in support of the appeal, nor by any of the other counsel appearing in this case. The learned Attorney General himself stated candidly that he was not prepared to support the view taken by the late Chief Justice as mentioned above and he only raised the point to get an authoritative pronouncement upon it by the Court. In our opinion, it would not be proper to express any final opinion upon the point in the present case when we had not the advantage of any arguments addressed to us upon it. We would prefer to proceed, as this Court has proceeded all along, in dealing with similar cases in the past, on the footing that Article 19(1)(f) applies equally to concrete as well as abstract rights of property'.
17. In the Hindu Religious Endowments case (C) certain provisions of the Madras Hindu Religions and Charitable Endowments Act were impugned. The Hindu Religious Endowments Board acting under powers vested in it by the Act, had issued notice to the head of a Math stating that it had reason to believe that the endowments of the Math were being mismanaged and calling upon him to show cause why a scheme should not be framed for the administration of its affairs. The Board having proceeded to frame such a scheme, the Swami filed a petition for a writ of prohibition alleging infringement of his fundamental rights to property under Article 19(1)(f). One of the grounds on which the petition was resisted was that the right of the Swami or Mathadhipati were not rights to property but a mere right to an office or a dignity. It will be noticed that the question raised was in precisely the same form in which it is raised here. No doubt, in the Hindu Religious Endowments case (C) the duties of a Mathadhipati or Swami were different in nature from the duties of a patel or a patwari. Nevertheless, it seems to us that the tests laid down in the above cases govern the decision of the point in the present case and are binding upon us.
18. Their Lordships in disposing of the objection observed:
'Thus in the conception of Mahantship, as in Shebaitship, both the elements of office and property, of duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties; and these and other rights of a similar character invest the office of the Mahant with the character of proprietary right which, though anomalous to some extent, is still a genuine legal right. It is true that the Mahantship is not heritable like ordinary property, but that is because of its peculiar nature and the fact that the office is generally held by an ascetic, whose connection with his natural family being completely cut off the ordinary rules of succession do not apply.
(12) There is no reason why the word 'property' as used in Article 19(1)(f) of the Constitution should not be given a liberal and wide connotation and should not be extended to those well recognised types of interest which have the insignia or characteristics of proprietary right. As said above, the ingredients of both office and property, of duties and personal interest are blended together in the rights of a Mahant and the Mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties would be to destroy his character as a Mahant altogether'.
19. Applying the test to the rights which the petitioners held under the Berar Patels and Patwaris Law, it seems to us that though something may be said for the view that the mere office of a patwari or patel is not 'property' the rights which the petitioners held were not rights merely to an office or to a mere dignity as counsel put it. As we have shown from the provisions of the Patels and Patwaris Law, there were attached to each office valuable monetary rights in the shape of emoluments and with the abolition of the offices were also taken away those lights to remuneration. As often as not, this remuneration was to bederived from lands heid on concessional terms. In so far as every office of patwari or patel necessarily imported the right to certain emoluments, we hold that the rights which the petitioners held were 'property' within the meaning of Article 19(1)(f) and Article 31.
20. We then turn to the substantial question raised in this petition as to whether Section 214 is ultra vires for the reason that it infringes Article 31.
21. Article 31(2-A) runs as follows;
'Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that it deprives any person of his property.'
22. We have already held that the watandari patelki rights constituted 'property' within the mean-ing of Article 31 as also of Article 19(1)(f) of the Constitution. Article 31 prior to its amendment received intepretation several times at the hands of the Supreme Court, particularly in : 1SCR587 and Saghir Ahmad v. State of U.P, : 1SCR707 and having regard to those decisions there could be no doubt that Article 31, as it stood prior to the Fourth Amendment, would hit Section 214 of the Madhya Pradesh Land Revenue Code, because no compensation has been provided therein for the abolition of the watandari rights of the petitioners. But reliance was placed on behalf of the State on the provisions of Article 31(2-A) which was introduced by the Constitution (Fourth Amendment) Act, 1955.
23. If Article 31(2A) applies in the instant case, then there is no doubt that Section 214 of the Madhya Pradesh Land Revenue Code cannot be deemed unconstitutional though it purports to deprive the petitioners of their property without payment of compensation because the acquisition of these rights was for public purposes and the law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State. Therefore, 'if shall not be deemed to provide for the compulsory acquisition or requisitioning' of that property. It was not disputed before us that if Article 31(2A) applies, Section 214 would be a valid piece of legislation.
24. As we have said above, the Notification of Government brought the Madhya Pradesh Land Revenue Code into force from 2-10-55, and the Constitution (Fourth Amendment) Act, 1955, had already come into force on the 27th April 1955, It was urged on behalf of the State that since on the date on which the Act became law, Article 31(2A) was already in force, it would save the enactment. We are unable to accept this contention. What is in question-before us is the constitutional validity of Section 214 of the Code, and the question raised therefore affects the making of that law in all its stages and not merely a question as to its validity on the date on which the Act Or the Section was brought into force. If the Legislature was incompetent to enact Section 214 for the reason that it contravenes Article 19 or 31 of the Constitution, the mere argument that when it was brought into force it would be valid under the provisions of the Constitution cannot take away the original unconstitutionality of the law or the want of competence in the Legislature to enact it. In our opinion, it will therefore have to be determined whether Article 31(2A) could be availed of to validate the enactment of Section 214 when it was enacted by the Madhya Pradesh Assembly, which was prior to the coming into force of the Constitution (Fourth Amendment) Act. Therefore, the question to be determined would still be whether Article 31(2A) has any retrospective operation or whether it is merely prospective in its application.
25. Now, Clause (2A) prescribes that when a law-does not provide for the transfer of the ownership or the right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not he deemed to provide for the compulsory acquisition or requisitioning of any property. The Article clearly creates a fiction by the use of the words 'be deemed''. In other words, what it implies is that even though the law deprives any person of his property, it shall not be deemed to be a law providing for compulsory acquisition or requisitioning of (he property so long as the property docs not vest in the State or in a corporation owned or controlled by the State. The expression 'deemed to be' has, by virtue of successive interprotations both of the Privy Council and of several High Courts in India, now acquired a fixed connotation. In Commissioner of Income-tax, Bombay v. Bombay Trust Corporation, Ltd. Visocunt Dunedin observed:
'Now when a person is 'deemed to be' something, the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were.'
In Samsher Khan v. Vithaldas ILR 1946 Nag 278: AIR 1946 Nag 264 this fiction was applied to the interpretation of a provision of law -- Section 58(c) of the Transfer of Property Act--by a Division Bench of the then High Court of Nagpur. Section 58(c) pro-vides that a document though purporting to be a mortgage shall be deemed not to be a mortgage unless certain conditions are fulfilled. See also the eases in Sawatram Ramprasad Mills, Co. Ltd. v. Vishnu Pandurang ILR 1949 Nag 905 : AIR 1950 Nag 14 and Spring Mills Ltd. v. G. D. Ambekar 51 Bom. L. R. 148 : AIR 1949 Bom 188 .
26. In our opinion, by the use of the words 'it shall not be deemed to provide for the compulsory acquisition or requisitioning of property' in Article 31(2A) Parliament clearly intended to apply the fic-tion without reference to any point of time and to make Clause (2A) retrospective in its operation.
27. The very question came up for consideration before their Lordships of the Supreme Court of India in a recent case in Amar Slngh v. Custodian, Evacuee Property, Punjab (S) AIR 1987 S. C. 599. In that case the validity of Section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, and of the rules framed thereunder were in question. Under that provision of law quasi-permanent allotments of property could be cancelled or resumed. The section was impugned as infringing Article 31 of the Constitution. But their Lordships rejected the contention, holding that the interest of a quasi-permanent allottee was not 'property' and therefore neither Article 19(1)(f) nor Article 31 would be attracted. At the same time, Mr. Justice Jagannath Das held that Article 31(2A) would apply as it was retrospective in operation. In paragraph 23 at page 611 he observed:
'But in view of the word 'deemed' in the amended Article 31(2A) it appeal's likely that the amendment was intended to be retrospective.'
No doubt, that was not the decision of the Court but the observation supports the view we have taken above. In our opinion. Article 31(2A) is retrospective in its operation, and having regard to its provisions Section 214 of the Madhya Pradesh Land Revenue Code, 1955, which is impugned in this petition, cannot he declared unconstitutional though it deprives the petitioners of their property.
28. In the view we have taken, we need not consider another contention raised that Article 31A which was introduced by the Constitution (First Amendment) Act, 1951, would save the provisions of Section 214 of the Land Revenue Code.
29. The petition fails and is dismissed with costs. The outstanding amount of security deposit made by the petitioners be refunded to them after deducting expenses that may be payable by them.
J.R. Mudholkar, J.
30. I have had the advantage of reading the order proposed by my learned Brother. While I agree that the petition should be dismissed, I would state my own reasons for doing so.
31. Section 214 (1) of the Madhya Pradesh Land Revenue Code provides that the Berar Patels and Patwaris Law, 1900, shall stand repealed as from a certain date and that thereupon any right or claim to continuie or to be appointed as a patel or pat-wari under the said law shall stand extinguished.
32. It is contended on behalf of the petitioners that the provisions of this section are ultra vires inasmuch as they take away their right to property without paying them any compensation.
33. On behalf of the State it was contended that the rights conferred by the Patels and Patwaris Law on the patsls and patwaris cannot be said to fall within the term 'property' which occurs in Article 19(1)(f) of the Constitution, and that therefore the petitioners can have no grievance. Alternatively, it was contended on behalf of the State that even assuming that the provisions of the Patels and Patwaris Law confer any right or interest in property, the provisions of Section 214 of the Madhya Pradesh Land Revenue Code are protected by Sub-clause (a) of Clause (1) of Article 31A which was substituted for the original Clause (1) by the Constitution (Fourth Amendment) Act, 1955, Section 3.
34. My learned Brother after examination of a number of decisions of the Supreme Court expressed the view that there is no reason why the word 'property' as used in Article 19(1)(f) of the Constitution should not be given a liberal and wide connotation and should not be extended to those well recognised types of interest which have the insignia or characteristics of proprietary right. In my opinion, it is not necessary in the present case to decide the vexed question whether the word 'property' as used in Article 19(1)(f) of the Constitution is used in its widest connotation or is used only in a restricted sense. My learned Brother has quite rightly pointed out that under Clause (1) (a) of Article 31A of the Constitution, no law providing for the extinguishment of any estate or of any rights therein shall he deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Articles 14, 19 or 31 of the Constitution provided that where, as here, the law having been reserved for the consideration of the President, has received his assent. The expressions 'estate' and 'rights'' have been defined in Clause (2) of Article 31A. If, the interest conferred on the patels and patwaris by the Patels and Patwaris Law is 'property' or a right in property, that interest clearly falls within the ambit of Clause (1) (a) of Article 31A, giving the expressions 'estate' and 'rights' the meaning assigned to each of them by the definitions contained in Clause (2) of that Article. Though the Madhya Pradesh Land Revenue Code was enacted before the Fourth Amendment, than Amendment was clearly retrospective, as pointed out by Mr. Justice Jagannadha Das in : 1SCR801 , to which decision my learned brother has made a reference. That being the position, the challenge to the vires of the provisions of Section 214 of the Madhya Pradesh Land Revenue Code must fail.
35. I therefore agree that the petition must be dismissed with costs.
36. Petition dismissed.