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Nandkishore Fakirchand Sevak Vs. Nanji Raghoji Mali and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Constitution
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 674 of 1969
Judge
Reported inAIR1973Bom354; 1973MhLJ748
ActsBombay Tenancy and Agricultural Lands (Vidarbha Region) Rules, 1959 - Rule 17; Constitution of India - Articles 14, 19 and 31-A; Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act - Sections 118
AppellantNandkishore Fakirchand Sevak
RespondentNanji Raghoji Mali and anr.
Appellant AdvocateJ.N. Chandurkar, Adv.
Respondent AdvocateV.M. Kulkarni and ;A.S. Deshpande, Advs. and ;V.V. Naik, Hon. Asstt. to the Addl. Govt. Pleader for the Adv. General
Excerpt:
.....rendered it unconstitutional as violative of article 14. so far as we could understand the submission, the unreasonable discrimination was said to exist because of the operation of the proviso. 11. in the result, therefore, the challenge to rule 17 of the rules on the ground that it is discriminatory and is, therefore, violative of the petitioner's fundamental right guaranteed under article 14 of the constitution must fail......granted reasonable time to get their shares separated by metes and bounds before the prescribed date. the date fixed is a prospective date, namely, 30-6-1959, though the act and rules came into force earlier. thus all the persons belonging to the specified categories were given reasonable opportunity in this behalf and are treated equally. this classification is found on an intelligible differentia which has a rational relation to the object sought to be achieved by the act. further, in my opinion, provisions of article 14 of the constitution will not apply to such a case. as held by the supreme court in hathising . v. union of india, : (1960)iillj1sc a statute creating a liability which is strictly prospective is not hit by article 14 of the constitution. in this context, it was.....
Judgment:

1. The petitioner is a tenure-holder of survey number 125/1, area 18 acres 37 gunthas, land revenue Rs. 28.37 of village Tembhurna, taluq Khamgaon, district Buldana. A partition was effected on 30-6-1959 between the petitioner, his brother and father and along with the other property the aforesaid survey number was allotted to the share of the petitioner. His name was also duty mutated in the record of rights. The petitioner was a minor having been born on 11-10-1956 on the date of partition.

2. Respondent No. 1 Ninaji was cultivating survey number 125/1 as a tenant. Suo Motu proceedings for considering the question whether Ninaji, the tenant had become the owner of the property were started by the Additional Tahsildar and the Agricultural Lands Tribunal, Khamgaon. In these proceedings it was contended by the tenure-holder that he being a minor the property cannot be transferred in favour of the tenant. The Agricultural Lands Tribunal held that the suit field could be compulsorily transferred in favour of the tenant because the share of the petitioner in the joint family property was not separated by metes and bounds before the prescribed date as contemplated by second proviso to sub-section (2) of Section 41 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act and thereafter the Lands Tribunal proceeded to fix the price at 48 times the land revenue.

3. This order passed by the Agricultural Lands Tribunal was challenged before the Sub-Divisional Officer, Khamgaon. The order passed by the Lands Tribunal was modified by the Sub-Divisional Officer by reducing the price. According to the Sub-Divisional Officer, the price had to be calculated at 36 times the land revenue, and therefore, the calculations were made accordingly. The Sub-Divisional Officer also placed reliance on Rule 17 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Rule, 1959, hereinafter referred to as the Rules, read with the proviso to sub-section (2) of Section 41 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereinafter referred to as the Act, and held that in spite of the minority of the petitioner the tenant was entitled to be declared as purchaser of the land in question. Therefore, except for the modification in the fixation of the price the Sub-Divisional Officer maintained the order passed by the Agricultural Lands Tribunal.

4. This order of the Sub-Divisional Officer was challenged before the Maharashtra Revenue Tribunal. The Revenue Tribunal by its order dated 29-11-1968 held that the minority of the petitioner did not come in the way of respondent No. 1 Ninaji being conferred with the rights of ownership, in view of the second proviso to sub-section (2) of Section 41 of the Act read with Rule 17 of the Rules. Therefore, the revision application was dismissed. Against this order of the Revenue Tribunal the present writ petition has been filed by the petitioner Tenure-holder.

5. Shri Chandurkar, who appears before me for the petitioner-tenant, contended that Rule 17 of the Rules is ultra vires of the provisions of Article 14 of the Constitution of India. He contended that the prescribed date fixed by Rule 17 of the Rules has no rational basis, that a discrimination has been made by the second proviso to sub-section (2) of Section 41 and Rule 17 of the Rules with respect to the partition which has taken place before 30-6-1959 and that taking place after that date and the said provision is, therefore, discriminatory and is violative of the provisions of Article 14 of the Constitution. Consequently, therefore, the date fixed, namely, 30-6-1959, is one which has to be ignored while giving effect to the provisions of Section 41 (2) of the Act. The classification made on the basis of this date of partition is without any basis, and therefore, the said rule is liable to be struck down being violative of the fundament right of the petitioner guaranteed under Article 14 of the Constitution. This is the only ground which has been argued in this writ petition. Shri Chandurkar for this proposition relied upon a decision of this Court in Balabhau Nanji v. Bapuji Satyaki, : AIR1957Bom233 (FB).

6. It cannot be disputed in view of the decisions of the Supreme Court in Mahadeo Paikaji Kolhe v. State of Bombay. : [1962]1SCR733 and Shri Kalanka Devi Sansthan v. Maharashtra Revenue Tribunal, : [1970]1SCR936 , that the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 is rendered immune from attack or challenge on the ground of violation of Articles 14 and 19 of the Constitution of India in view of Article 31-A of the Constitution. It also cannot be disputed that Rule 17 of the Rules has been framed by the Government by virtue of the power vested in it under Section 118 of the Act. The term 'prescribed' has been defined in the Act in Section 2 (23) meaning thereby prescribed by rules made under the Act. In exercise of the powers conferred by S. 118 of the Act, the State Government has framed Rule 17 which reads as under :

'17. Last date for separation of share under sub-section (2) of Section 38 and sub-section (2) of Section 41 : - The 30th June, 1959 shall be the prescribed date referred to in the first proviso to sub-section (2) of Section 38 and in second proviso to sub-section (2) of Section 41.'

This statutory rule is within the power conferred by the section of the Statute upon the State Government. The said rules are subject to previous publication in the Official Gazette and are required to be laid before each house of Legislature. They are also subject to modification by the State Legislature. In this view of the matter in my opinion, even thus rule would be protected form attack under Article 31-A of the Constitution.

7. The Supreme Court had an occasion to deal with this aspect of the matter in Latafat Ali Khan v. The State of U. P., : AIR1973SC2070 . In the said case Rules framed under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 were challenged. While upholding the validity of the said Rules it was observed by the Supreme Court :

'It seems to us that if a statutory rule is within the powers conferred by a section of a statute protected by Article 31-B, it is difficult to say that the rule must further be scrutinised under Articles 14, 19 etc. Rule 4 (4) seems to us to be rule which does not go beyond the powers conferred under Section 6 (xvii), read with Section 44 of the Act. At any rte, Section 6 (xvii) and R. 4 (4) are part of a scheme of land reform in U. P. and would be protected from attack under Article 31-A of the Constitution.'

In the present case also Section 38 (2), first proviso and Section 41 (2), second proviso, and Rule 17 are part of the scheme of the Tenancy Act itself. Rule 17 as framed is within the rule making power conferred upon the State Government under Section 118 read with other relevant provisions of the Act. This being the position, in my opinion, the said sections as well as the rule framed thereunder would be protected from attack or challenge on the ground of violation of Articles 14 and 19 of the Constitution, under Article 31-A of the Constitution of India.

8. Even otherwise the said rule is not violative of the fundamental right of the petitioner guaranteed under Article 14 of the Constitution. It is not difficult to find out the rationale behind the fixation of the said date by the rule. As observed by this Court in Shrikrishna Nimaji v. Namdeo, 1963 Mah LJ 289 = AIR 1963 SC 163, this date has been fixed an order to enable persons falling into the special categories to get the benefit of sub-section (2) of Section 38 of the Act. After quoting sub-section (2) of Section 38, the Full Bench observed :

'This sub-section extends the time for terminating the tenancy and making an application for possession in the case of the persons, who belong to the categories mentioned in clauses (a) to (d). This is subject to the conditions mentioned in the proviso, one of which is that if such person is a member of a joint family, his share in the joint family property has been separated by metes and bounds before the prescribed ate. The Act came into force on 30th December 1958, and in order to enable persons falling within the special categories to get the benefit of this sub-section, 30th June, 1959 was fixed as the prescribed date. They were, therefore, given about six months' time to get their shares separated by metes and bounds. If such a person's share was so separated before 30th June 1959, he can terminate the tenancy and apply for possession after this date, during the period specified in cls. (A) and (B) of the sub-section.'

9. It is apparent from this that this date, namely, 30th June 1959, was fixed so as to enable the persons to get the benefit of the various provisions of the Act. Six months' time was granted to them to get their shares separated by metes and bounds. Therefore, it cannot be said that either the time granted or the date fixed is unreasonable or has no reasonable nexus with the object to be achieved by the Act. All the persons belonging to the specified categories were granted reasonable time to get their shares separated by metes and bounds before the prescribed date. The date fixed is a prospective date, namely, 30-6-1959, though the Act and Rules came into force earlier. Thus all the persons belonging to the specified categories were given reasonable opportunity in this behalf and are treated equally. This classification is found on an intelligible differentia which has a rational relation to the object sought to be achieved by the Act. Further, in my opinion, provisions of Article 14 of the Constitution will not apply to such a case. As held by the Supreme Court in Hathising . v. Union of India, : (1960)IILLJ1SC a Statute creating a liability which is strictly prospective is not hit by Article 14 of the Constitution. In this context, it was observed by the Supreme Court in the said decision as under :-

'Article 14 of the Constitution is not violated by making by law a distinction between employers who closed their undertakings on or before November 27, 1956, and those who closed their undertakings after that date. The State is undoubtedly prohibited form denying to any person equality before the law or the equal protection of the laws, but by enacting a law which applies generally to all persons who come within its ambit as from the date on which it becomes operative, no discrimination is practiced. When Parliament enacts a law imposing a liability as following from certain transactions prospectively, it evidently makes a distinction between those transactions which are covered by the Act and those which are not covered by the Act, because they were completed before the date on which the Act was enacted. This differentiation, however, does not amount to discrimination which is liable to be struck down under Article 14. The power of the legislature to impose civil liability in respect of transactions completed even before the date on which the Act is enacted does not appear to be restricted. If, as is conceded - and in our judgment rightly - by a statute imposing civil liability in respect of post-enactment transactions, no discrimination is practised, by a statute which imposes liability in respect of transactions which have taken place after a date fixed by the statute, but before its enactment, it cannot be said that discrimination is practised. Article 14 strikes at discrimination in the applications of the laws between persons similarly circumstanced; it does not strike at a differentiation which may result by the enactment of a law between transactions governed thereby and those which are not governed thereby. If the argument that discrimination results when by statute a civil liability is imposed upon transactions which were otherwise subject to such liability to accepted, every law which imposes civil liability will be liable to be struck down under Art, 14 even if it comes into operation on the date on which it is passed, because immediately on its coming into operation, discrimination will arise between transactions which will be covered by the law after its coming into force and transactions before the law came into force which will not naturally be hit by it. If a statute creating civil liability which is strictly prospective is not hit by Art, 14, a law which imposes liability on transactions which have taken place before the date on which it was enacted, cannot also be hit by Article 14. By bringing within its fold transactions before the date of its enactment, in truth, the date of the application of the Act is related back to a period anterior to the date on which the Act was enacted.'

Similar view has been taken by the Supreme Court in Bihari Lal Batra v. Chief Settlement Commissioner (Rural) Punjab, : [1964]7SCR192 . In the said decision Rule 2 (h) of the Displaced Persons (Compensation and Rehabilitation) Rules (1955) was attacked on the ground of discrimination under Article 14 of the Constitution of India. In para 6 of the said judgment it was observed by the Supreme Court as under :

'We must confess our inability to comprehend what precisely was the discrimination which the rule enacted which rendered it unconstitutional as violative of Article 14. So far as we could understand the submission, the unreasonable discrimination was said to exist because of the operation of the proviso. Under the proviso in regard to quasi-permanent allotments 'already made' i.e. made before May 21, 1955 in the States of Punjab and Pepsu, the test of what was to be considered as 'urban area' was to be determined on the basis of the state of circumstances which obtained on 15th August, 1947. The allotment in favour of the appellant was after the rules came into force and was not one 'already made'. Therefor if on the date of the allotment the land was in an urban area, the allotment would be governed by the main para of the definition and so could not have validly made and that was the reason why it was set aside. The discrimination is said to consist in the rule having drawn a dividing line at the date when it came into force, for determining whether the allotment was valid or not. It is the discrimination that is said to be involved in this prospective operation of the rule that we find it difficult to appreciate. It is possible that before the rules were framed the land now in dispute could have been allotted, but because of this it is not possible to suggest that the rule altering the law in this respect which ex concessions is within the rule making power under the Act, is invalid. Such a contention is patently self-contradictory. Every law must have a beginning or time from which it operates, and no rule which seeks to change the law can be held invalid for the mere reason that it effects an alteration in the law. It is sometimes possible to plead injustice in a rule which is made to operate with retrospective effect, but to say that a rule which operates prospectively is invalid because thereby a difference is made between the past and the future, is one which we are unable to follow.'

In the present case also Rule 17 of the Rules is to operate prospectively. The Tenancy Act came into force on 30th December, 1958 and six months' time was granted to the persons to get their shares separated by metes and bounds. Therefore, it is quite clear that the date fixed is a future date which is prospective. In this view of the matter, in my opinion, as held by the Supreme Court, it cannot be said that the said rule is discriminatory. The petitioner and the persons, namely, tenure-holders who separated their shares on or after 30-6-1959, belong to one distinct class and are treated equally. The persons who have separated their shares prior to 30-6-1959 and the persons who have separated their shares after the said date belong to two separate classes. The persons belonging to the same class are treated equally. In this view of the matter, in my opinion, it cannot be said that the said rule treats the persons belonging to the same class differently. The said rule, therefore, cannot be said to be discriminatory.

10. The decision in : AIR1957Bom233 (FB) (cit. supra) is not applicable to the facts and the circumstances of the present case, because in that case the provisions made were to operate with retrospective effect. Such a provision cannot be compared with Rule 17 of the Rules which is to operate prospectively.

11. In the result, therefore, the challenge to Rule 17 of the Rules on the ground that it is discriminatory and is, therefore, violative of the petitioner's fundamental right guaranteed under Article 14 of the Constitution must fail.

12. In the view which I have taken, the petition fails and is dismissed. However, in the circumstances of the case there will be no order as to costs.

13. Petition dismissed.


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