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Parappa Payappa Desai and ors. Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 2025 and 2026 of 1965 and 882 to 884 of 1966
Judge
Reported inAIR1968Kant305; AIR1968Mys305; (1968)1MysLJ146
ActsBombay Merged Territories and Areas (Jagirs Abolition) (Mysore Amendment) Act, 1963 - Sections 2; Constitution of India - Article 226; Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953; Bombay Act, 1955
AppellantParappa Payappa Desai and ors.
RespondentState of Mysore and ors.
Excerpt:
constitution - constitutionality - section 2 of bombay merged territories and areas (jagirs abolition) (mysore amendment) act, 1963 and articles 14, 19 and 31 of constitution of india - matter pertaining to effect and validity of section 2 - act only transfers ownership or right to possession of lands from petitioners-jagirdars to respondents-tenants and not to state or corporation owned or controlled by state - act enlarged period for paying occupancy prices from 4 years to 12 years - petitioners alleged that respondents-tenants not entitled to be granted occupancy rights in said lands in their respective possession as they failed to pay occupancy prices within 4 years from appointed day and enlarged period would not be applicable retrospectively - legislature competent to legislate with..........j. (1) the effect and the validity of section 2 of the bombay merged territories and areas (jagirs abolition) (mysore amendment) act, 1963, (hereinafter referred to as 'the amendment act, 1963') arise for decision in these petitions under art. 226 of the constitution. that act received the assent of the president on 23-5-1964 and came into force on 6-3-1964.(2) the petitioners were jagirdars or their co-shares of hangandi jagir and 3 other villages in jamkhandi taluk, bijapur district. it would appear that these villages were grated in inam to their ancestors by the then badashah of bijapur in the 17th century. later these inam villages formed part of the then badashah of bijapur in the 17th century. later these inam villages formed part of the then state of sangli which merged in.....
Judgment:

Chandrashekhar, J.

(1) The effect and the validity of Section 2 of the Bombay Merged Territories and Areas (Jagirs Abolition) (Mysore Amendment) Act, 1963, (hereinafter referred to as 'the Amendment Act, 1963') arise for decision in these petitions under Art. 226 of the Constitution. That Act received the assent of the President on 23-5-1964 and came into force on 6-3-1964.

(2) The petitioners were Jagirdars or their co-shares of Hangandi Jagir and 3 other villages in Jamkhandi Taluk, Bijapur District. It would appear that these villages were grated in inam to their ancestors by the then Badashah of Bijapur in the 17th Century. later these inam villages formed part of the then Badashah of Bijapur in the 17th Century. later these inam villages formed part of the then State of Sangli which merged in the then Province of Bombay with effect from 8-3-1948. Thereafter these villages were included in Jamkhandi Taluk, Bijapur District. On reorganisation of States these villages are in the new State of Mysore.

(3) The then Bombay Legislature enacted the Bombay Merged Territories and Areas (Jagirs Abolition) Act, 1953 (Bombay Act No. 39 of 1954) hereinafter referred to as the (Jagirs Abolition Act). The preamble of that Act states that it is expedient in the public interest to abolish jagirs of various kinds in the merged territories and merged areas in the State of Bombay and to provide for matters consequential and incidental thereto. That Act received the assent of the President and came into force on 1-8-1954, that date having been notified in the official Gazette under Section 1(3).

(4) Clause vii) of Section 2(1) of the Act defines 'Jagirdar' as the holder of a Jagir village including his co-sharer. Clause (v) defines 'Gharkhed land' as land held by a Jagirdar as his personal or private property and cultivated personally by him. Clause (xi) defines 'Jiwai land' as land held by a cadet of a jagirdar's family for the purposes of maintenance.

(5) Section 3 of the Jagirs Abolition Act provides that notwithstanding anything contained in any usage, grant, sanad, order, agreement or any law for the time being in force, on and from the appointed date (1-8-1954), all jagirs shall be deemed to have been abolished, and that save as expressly provided by order the provisions of that Act, all rights of a jagirdar in respect of a jagir village shall be deemed to have been extinguished.

(6) The first proviso to sub-section (1) of Section 5 states that if a Jiwai land or a land other than Gharkhed land, is in possession of a person other than a permanent tenant, holding through or from his jagirdar or his cadet, as the case may be, on payment of rent to the jagirdar or cadet, as the case may be, such person shall be entitled to the rights of an occupant in respect of the land in his possession on payment in the prescribed manner to the jagirdar or the cadet, as the case may be, of the occupancy price equivalent to six multiples of the assessment fixed for such land.

(7) The second proviso to sub-section (1) of Section 5, as it stood when the Jagirs Abolition Act was enacted, reads:--

'Provided further that the right conferred by the above proviso shall not be exercisable after a period of two years from the appointed date.'

(8) By the Bombay Act 51 of 1955, the words 'two years' were substituted by the words 'four years'.

(9) The relevant portion of Section 2 of the Mysore Amendment Act, 1963, reads:

'2. In Section 5 of the Bombay Merged Territories and Areas (Jagirs Abolition), Act, 1953, (hereinafter referred to as the Principal 'Act').

(1) in the second proviso to sub-section (1),

(a) ** ** ** ** (b) for the words 'four years', the words 'twelve years' shall be substituted and shall be deemed always to have been substituted.

(10) The constitutionality of the Jagirs Abolition Act came up for consideration before the Supreme Court in Maharaj Umeg Singh v. State of Bombay, : [1955]2SCR164 . Upholding the constitutionality of that Act, this is what the Supreme Court said at p. 548:--

'even if it could be demonstrated that the provisions of the impugned Act were confiscatory as well as discriminatory in the manner suggested the Jagirs of the petitioners (except in the case of the petitioner in petition 364/54 were all estates within the meaning of the term as defined in Art. 31-A(2)(a) of the Constitution and even if the impugned Act provided for the acquisition of the estates or of any rights therein, or for the extinguishment or modification of such rights, the impugned Act could not be challenged as void on he ground that it was inconsistent with or took away or abridged any of the fundamental rights conferred by Part II of the Constitution.

Any challenge therefore, on the ground of the impugned Act violating the fundamental rights of the petitioners under Art. 14 or Art. 19(1)(f) or Art. 31(2) of the Constitution, was not available to the petitioner'.

(11) Respondents other than respondents 1 and 2 in each of these petitions, are tenants, but not permanent tenants, in possession of certain lands which are other than Gharkhed lands. They had not paid the occupancy price either within the period of two years (as fixed in the Jagirs Abolition Act as it stood originally) or within the extended period of four years (as fixed by the Jagirs Abolition Act as amended by Bombay Act 51 of 1955) from the appointed date. After the Amendment Act, 1963, came into force, in pursuance of directions of the Deputy Commissioner, the Revenue Authorities issued notices to the respondents tenants who have deposited the occupancy prices.

(12) The petitioners have contended that respondents-tenants are not entitled to be granted occupancy rights in the said lands in their respective possession as they (respondents-tenants) failed to pay the occupancy prices within four years from the appointed day and that the purported enlargement of the said period into 12 years by the Amendment Act, 1963, is void and has no legal effect.

(13) Mr. V. Krishna Murthy, learned counsel for the petitioners formulated his contentions thus:

(i) The period of four years fixed by the second proviso to Section 5(1) of the Jagirs Abolition Act, as amended by Bombay Act, 51 of 1955, had expired before the Amendment Act, 1963 came into force, and hence clause (b) of sub-section (1) of Section 2 of the Amendment Act, 1963, could not enlarge that period into 12 years.

(ii) Clause (b) of sub-section (1) of Section 2 of the Amendment Act, 1963, has the effect of divesting the property vested in the petitioners-Jagirdars on the failure of tenants to pay occupancy prices before the expiry of four years from the appointed day and as the Amendment Act, 1963, provides for no compensation to the Jagirdars for deprivation of their property, the Amendment Act, 1963, is violative of Art. 31 of the Constitution and void

(14) We shall now examine these contentions.

(15) In support of his contention that an amending Act cannot enlarge any period of time fixed by the principal Act, if the amending Act comes into existence after the expiry of that period of time. Mr. Krihsna Murthy placed strong reliance on the decision of the Federal Court in Jatindra Nath Gupta v. Province of Bihar . There, the appellant was arrested on 23-2-1949 under Section 2 of the Bihar Maintenance of Public order Act, 1947 (hereinafter referred to as 'the Bihar Act, 1947'). Section 1(3) of that Act provided that that Act shall remain in force for one year from the date of its commencement; but the proviso to that sub-section purported to empower the Provincial Government to extend the life of that Act for a further period of one year on a resolution being passed by the Bihar Legislative Assembly and agreed to by the Bihar Legislative Council. In the purported exercise of such power the Governor of Bihar directed that the said Act shall remain in force for a further period of one year from 16-3-1948.

(16) On 15-3-1949, Bihar Act V of 1949, being an Act to amend the Bihar Maintenance of Public Order Act, 1947, was passed. The words 'till 31st March 1950' in Section 1 (3) of the Bihar Act, 1947, were substituted for the words 'for a period of one year from the date of its commencement'.

(17) The majority of the Bench of the Federal Court held that the power to extend the life of the Act, conferred on the Govt. was an impermissible delegation of legislative power and was ultra vires. It was contended for the Province of Bihar that the Bihar Act, 1947, was in operation till 31-3-1950 by virtue of the said amendment, introduced by Bihar Act V of 1949, Rejecting that contention, B. K. Mukherjee, J. (as he then was), who was one of the four Judges speaking for the majority view, said:

'The Legislature proceeds, on the footing that the old Act was alive at the date when the new Act was passed, and the new Act merely purports to amend one of the provisions of the old Act. There could be no amendment of an enactment which is not in existence, and from the fact that the Legislature purports to amend an Act, it cannot be held as a matter of construction that the intention of the Legislature was to renew a dead Act or make a new enactment on the same terms as the old with retrospective effect'.

(18) As explained in the judgment of Kania, C. J., the Bihar Act, 1947, was a temporary Act as its duration was fixed for one year by the Act itself, and it came to an end when the first year expired. The result was that when Bihar Act V of 1949, was passed, there was no Bihar Act, 1947, in operation which could be amended.

(19) As stated in Craies on Statute Law (quoted in the judgment of Kania, C.J) every statute for which no time is limited is called a perpetual Act and continues in force until it is repealed. If an Act contains a proviso that it is to continue in force only for a limited time, it is called a temporary Act. In the absence of any special provision to the contrary, after a temporary Act has expired, it ceases to be in operation and ceases to have any further effect. If the measure has to be brought into operation again fresh legislation has to be resorted to.

(20) Mr. Krishna Murthy has not shown how the Jagirs Abolition Act can be regarded as a temporary Act. There is no provision in that Act it is to continue in force for any limited time. The mere fact that certain acts (like the tenants paying the occupancy price within four years from the appointed day) contemplated by the Act should be done within a certain specified tie, does not make the Act any the less a permanent Act. hence the decision of the Federal Court has no application to the present petitions.

(21) It is well settled that it is competent for the Legislature, in exercise of its plenary powers, to legislate with retrospective effect and such powers would include the power to amend an earlier Act with retrospective effect. What clause (b) of sub-section (1) of Section 2 of the Amendment Act, 1963, provides is that the time limit of 12 years shall be deemed to have been inserted in the second proviso to sub-section (1) of Section 5 of the Jagirs Abolition Act, from the inception of the Jagirs Abolition Act. In other words Clause (b) shall, at all times, be read as containing the words 'twelve years' and not the words 'four years'.

(22) Thus we are unable to accept the contention of Mr. Krishna Murthy, that the Amendment Act, 1963, is ineffective and cannot enlarge the time for payment of occupancy price by respondents-tenants, beyond four years (fixed by the jagirs Abolition Act as amended by Bombay Act 51 of 1955).

(23) It was next contended by Mr. Krishna Murthy, that before the Amendment Act, 1963, was passed, the respondents-tenants who had not paid the occupancy price, had lost the rights of occupants; that the petitioners-Jagirdars became entitled to the rights of occupants in those lands; that if the Amendment Act, 1963, had the effect of conferring on respondents-tenants rights of occupancy in those lands, the petitioners-Jagirdars would be deprived of the property that had already vested in them: and that such deprivation of property without providing for compensation to petitioners-jagirdars was violative of Article 31 of the Constitution.

(24) For the sake of arguments we shall assume that on the expiry of four years from the appointed day, respondents-tenants who did not pay occupancy in the lands in their possession, that the petitioners-Jagirdars got such occupancy rights and the Amendment Act, 1963, conferring occupancy rights on respondents-tenants, has the effect of divesting the property of petitioners-Jagirdars Mr. Krishna Murthy did not contend, and we think rightly, that the State Legislature has no power to enact a law taking away the vested property rights. But what he contended was that vested property rights of the petitioners cannot be taken away by a legislation which does not provide for payment of compensation to them.

(25) Under Clause (2-A) of Article 31, a law which does not provide for transfer of ownership or right to possession of any property to the State or a Corporation owned or controlled by the State shall not be deemed to provide for compulsory acquisition of property. The effect of the Amendment Act, 1963, is only to transfer the ownership or right to possession of lands from the petitioner-Jagirdars to respondents-tenants and not to the State or to any Corporation owned or controlled by the State. In such a case, there is no acquisition or requisition and no compensation need be provided for under Art. 31(2) of the Constitution.

(26) In Sri Ram Narain v. State of Bombay, : AIR1959SC459 the question that arose for consideration was whether the provisions of the Bombay Tenancy and Agricultural Lands Act which provides for purchase of lands by tenants, would amount to compulsory acquisition of the property of the landlords. Section 32 of that Act, provides that on certain conditions being fulfilled, on 1-4-195 (called 'the tillers day') every tenant shall be deemed to have purchased from his landlord, the land held by him as tenant. The Supreme Court held that that Act was certainly not a law for the acquisition by the State of any estate or any rights therein even though those provisions deprived the landlords of their property, because the provisions with regard to the compulsory purchase by tenants of the land on the specified date transferred the title in those lands to the respective tenants and not to the State.

(27) There is yet another reason why the Amendment Act, 1963, cannot be held to be void as being inconsistent with Article 31 of the Constitution. As stated by the Supreme Court in : [1955]2SCR164 , the Jagirs dealt with by the Jagirs Abolition Act, are all estates within the meaning of the term as defined in Article 31-A(2)(a) of the Constitution. Even if the Amendment Act, 1963, can be regarded as providing for the acquisition of the rights of the petitioners-Jagirdars therein and not merely for the extinguishment or modification of their rights therein, the Amendment Act, 1963 is protected by Article 31A from any attack on the ground of it being inconsistent with, or taking away or abridging any of the rights conferred by Articles 14, 19 or 31.

(28) As laid down by the Supreme Court in Mahant Sankarshan v. State of Orissa, : [1962]3SCR250 the benefit of Article 31-A available to a principal Act is also available to an amending Act which extends the scope of the principal Act. It is to be presumed that the President gave his assent to the amending Act in its relation to the principal Act which it sought to amend.

(29) Thus the contention of Mr. Krishna Murthy that the Amendment Act, 1963 is violative of Art. 31 of the Constitution must be rejected.

(30) All the contentions of the petitioners fail and these petitions are dismissed, but without costs.

(31) RSK/D.V.C.

(32) Petitions dismissed.


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