1. This is an application under Article 226 of the Constitution by the owner of wet lands in village Raghunathpur, in Chatrapur Taluk of Ganjam-district, challenging the validity of the Orissa. Tenants Relief Act 1955 (Orissa Act V of 1955) (hereinafter referred to as the Act).
2. In 1948 the Orissa Legislature passed an Act known as the Orissa Tenants Protection Act for the purpose of granting temporary protection from eviction to the tiller of the soil (usually known as Bhagchassis) and also for reducing the produce rent payable by a tenant to his landlord. After the coming into force of the Constitution the validity of this Act was unsuccessfully challenged before a Division Bench of this Court in the case reported in Sashi Bushan v. Mangal, ILR (1953) Cut 45: (AIR 1953 Orissa 171) (A).
In that decision the full history of the circumstances leading to the passing of the Orissa Tenants Protection Act was given and it is unnecessary to repeat the same here. It is sufficient to say that the Legislature thought that the insecurity of tenure of the actual cultivator was mainly responsible for the deficiency in agricultural production and that the incidence of produce rent was so heavy as to leave a very inadequate return to the actual cultivator for his labour and enterprise.
It was to remedy these defects that the said Act was passed and it remained on the statute book after being extended from time to time by competent authorities, till 15th April 1955. In 1951 the Orissa Legislature passed the well-known Orissa Estate Abolition Act whose main purpose was to eliminate intermediaries between the Government and the actual cultivators by acquiring their rights on payment of compensation.
In pursuance of that Act most of the estates of proprietors in North and South Orissa have been taken over by Government but there still remains a large class of intermediaries in North Orissa known as tenurehofders whose interests have not yet been acquired. Moreover, there are a number of ryots both in North and South Orissa who are in possession of large tracts of land which they are unable to cultivate personally and which are generally settled on produce rent with the Bhagchassis who are the actual tillers of the soil, The Tenants Protection Act doubtless gave those Bhagchassis protection from eviction and also substantial reduction in the produce rent payable to their immediate landlord.
But as the life of that Act expired on the 15th April 1955 and there was a genuine apprehension that further legislation relating to land reform would be initiated by Government resulting in the elimination of other classes of intermediaries between the Government and the actual tiller including even big ryots, there was a danger that these intermediaries would attempt to evict the actual cultivators from their lands on a large scale. With a view to avoid this evil, the Orissa 'Tenants Relief Act was passed on the 21st April 1955, and the Preamble to that Act which makes the object clear is as follows:--
'Whereas subsequent to the passing of the Orissa Estate Abolition Act 1951 and pending further legislation relating to land reforms large-scale eviction of tenants from actual cultivation of agricultural lands is being resorted to by the owners of such lands;
And whereas pending such further legislation it is expedient to afford relief to such person by providing for their temporary protection from such eviction and for conferring on them certain other privileges in the manner hereinafter appearing; etc.'
The Act was given retrospective effect from the first day of July 1954 and the Orissa Tenants Protection Act was also repealed retrospectively from that date. There was, however, a saving clause (Section 19) by which the rights and privileges acquired under the Tenants Protection Act, as well as pending proceedings, appointments orders, etc., made under that Act, were all saved. The Act closely follows the pattern of the Orissa Tenants Protection Act, though there have been material changes, some of which are drastic in nature. Under the Tenants Protection Act the definition of the expression 'tenant' was somewhat restrictive and did not include a tenant paying wholly cash rent to his landlord. For the purpose of eviction it did not include a Bhagchassi if his immediate landlord was an occupancy ryot holding less than 33 acres.
Under the Act, however, the expression 'tenant' was given wider meaning so as to include even those cultivators who paid rent wholly in cash or kind, or partly in cash or partly in kind, Further, a person holding land directly under the Government with permanent and heritable rights of cultivation therein on payment of rent either wholly or partly in cash was completely excluded from the definition of the expression 'tenant' (see Exception 3 to Section 2 (1) (1).).
Clause (a) of Sub-section (1) of Section 3 of the Act gave protection from eviction to a tenant who was in lawful cultivation of his land on the 1st day of July 1954. The remaining clauses of that sub-section and Sub-section (2) of Section 3 fixed the maximum amount payable by a tenant holding land on produce rent to his immediate landlord.
It was fixed at one-fourth of the estimated gross produce subject to a maximum of 4 standard maunds of paddy per acre in respect of dry lands, and 6 standard maunds in respect of wet lands. Where however money crops were grown the maximum produce rent payable was fixed at 8 standard maunds of paddy per acre. These rates were fixed for those tenants who had no permanent or heritable rights, i.e. those tenants who had no occupancy rights.
But the tenants who had occupancy rights were required to pay only two-thirds of the rates as fixed above even though their lands might not be under 'their personal cultivation. In addition the landlord was prohibited from recovering, from any tenant, cess, water rate or other dues.
3. Having thus protected the tenants from eviction the Legislature thought that every landlord should have at least a minimum of 7 standard acres of land for the purpose of personal cultivation and hence, in Section 4 of the Act provided for his choosing such seven acres for his cultivation even by evicting tenants through the intervention of the Revenue authorities.
Sub-section (7) of Section 4, however, saved the rights of tenants from such eviction if they were already protected from eviction by any other law in force prior to the date of commencement of the Act. The other provisions of the Act are mainly procedural and consequential. I shall refer to the same subsequently while discussing the constitutional question.
4. Section 18, however, exempted from the scope of the Act (other than the provisions dealing with reduction of produce rent -- Section 3 (1) (b) and (c) the following five classes of land:
(i) Communal lands or pasture lands.
(ii) Lands reserved by the State Government for non-agricultural or industrial development.
(iii) Lands recorded or demarcated as belonging to Government or any Local authority used or held for the purposes of the Army, Navy or Air Force, or for any public work.
(iv) Lands held under a temporary lease granted by Government.
(v) Lands held on a temporary lease under a Grama Sabha under the Orissa Grama Punchayets Act 1948.
Hence, if a tenant is found to be cultivating any of these classes of land, on payment of produce rent to his landlord, such a tenant did not get the protection from eviction under Section 3 (1) (a) of the Act, but he was entitled to the relief of substantial reduction in produce rent payable by him to his landlord by virtue of Clauses (b) and (c), of Sub-section (1) of that Section.
5. Mr. H Mohapatra on behalf of the petitioner challenged the validity of the Act on two grounds viz: (1) it offended Article 14 of the Constitution and (2) it imposed unreasonable restrictions on a citizen in respect of his right to holdproperty and thereby contravened Article 19(1)(f).
6. Article 14: Mr. Monapatra's arguments in respect of this article may be summarised as follows:
(i) Exception 3 to Section 2 (1) (j) excluded from the benefits of the Act those tenants who held land directly under Government on payment of rent partly by produce and partly by cash, and thereby discriminated against them.
(ii) Section 18 (d) and, (e) by excluding all lands held under a temporary lease under Government, or under a Grama Sablia, from the operation of the Act, caused unfair discrimination by giving no protection from eviction to Bhagchassis who may be cultivating lands under such lessees, (iii) Sub-section (1) of Section 4 when construed along with Sub-section (7) of that Section had the effect of conferring only on those landlords who were occupancy ryots having less than 33 acres of land, the right to choose seven acres for their personal cultivation by evicting the Bhagchassis. The other classes of landlords such as ex-proprietors, tenure-holders or occupancy ryots having more than 33 acres were not given this benefit, and consequently Section 4(1) also brought about unfair discrimination between these two classes of landlords.
7. The principles to be followed in considering whether a particular statute offends Article 14 of the Constitution have been repeatedly laid down by the Supreme Court in a series of cases beginning with Charanjit Lal v. Union of India, 1951 SCJ 29; (AIR 1951 SC 41) (B) and ending with Thangal Kunju Musaliar v. Venkatachalam Potti, 1956-SCJ 323 : ( (S) AIR 1956 SC 246) (G) I would content myself with quoting only the following passage from the latter decision at p. 339 (of SCJ): at p. 262 (of AIR):
'It is now well established that while Article 14 forbids class legislation it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligent differentia which distinguishes persons or things that are grouped together, from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question.
The classification may be founded on different basis, namely geographical, or according to the objects or occupations or the like. What is necessary is that there must be a nexus between the basis of the classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure'.
8. The Act has excluded from its scope (1) lands held under temporary lease granted by Government (Section 18 (d) ) and (2) those tenants who held land directly under Government with permanent and heritable rights of cultivation therein on payment of rent, either wholly or partly in cash (Exception 3 to Section 2(1) (j) ).
The crucial question for consideration is whether this discrimination in respect Of tenants holding directly under Government is based on any reasonable classification bearing in mind the object sought to be achieved. The Preamble makes it absolutely clear that the primary object was to prevent private landlords from evicting the tillers of the soil on a large scale in view of the panic created in their minds about the impending legislation relating to land reforms.
It is obvious that there can be no such punicky eviction where the Govt. happens to be landlord, The whole object of tenancy reform, as envisaged in the Estates Abolition Act 1951, was to eliminate all intermediaries between Government and the cultivator and to bring the two in direct contact with each other.
Hence, it is inconceivable that Government would think of evicting the actual cultivators merely because of apprehended land reforms in the future. Therefore bearing in mind the apprehended evil which the Act was intended to remedy, even the complete exclusion of all Government lands from the scope of the Act would not have amounted to unreasonable discrimination so as to offend Article 14.
But the Legislature did not go so far as that. Where an occupancy ryot holding land directly under Government was paying only produce rent to them he was given the benefit of reduction in rent conferred by Section 3. Doubtless where such a ryot was paying rent partly in cash and partly in kind he derived no benefit from the Act, but on this ground alone the Act cannot be struck down as offending Article 14, because the Legislature did not intend primarily to legislate for tenants holding directly under Government.
So far as protection from eviction was concerned, there was no necessity to extend the Act to such classes of tenants because their rights of cultivation were permanent and heritable as denned in Exception 3 to Section 2(1) (j) and they were not ex hypothesi liable to eviction. Hence I cannot hold that Exception 3 to Section 2 (1)(j)) amounted to unreasonable discrimination,
9. Similarly, Section 18 (d) which deals with lands held under a temporary lease granted by Government cannot be held to be discriminatory. I have already shown that the primary object of the Act was to confer benefit on the actual cultivators holding lands under private landlord. Cultivators holding lands on a temporary lease whether from Government or from a temporary lessee under Government stand on a different footing.
It may be that a Bhagchassi holding land under a temporary lessee of Government may also be liable to arbitrary eviction by his immediate landlord. But if the Legislature did not think it necessary to legislate for his benefit, it cannot be said that the Act is unconstitutional.
As pointed out by Their Lordships of the Supreme Court in 1951 SCJ 29: (AIR 1951 SC 41) (B) if there is a classification the Court will not hold it invalid merely because the law might have been extended to other persons who, in some respects, might resemble the class for which the law was made, for the Legislature is the best judge of the needs of that particular class and to estimate the degree of evil so as to adjust its legislation according to the exigency fund to exist.
It was, however, urged by Mr. Mohapatra that there was no material distinction between a Bhagchassi holding land under a temporary lessee of Government on the one hand & a Bhagchassi holding under a private landlord on the other, and there was no special reason as to why the former class of Bhagchassis should be denied the protection from eviction. It is true that the two classes of Bhagchassis mentioned above are somewhat similar, but they cannot be held to be identical in all respects.
A bhagchassi under a private landlord is practically at the mercy of the landlord, & unless the Legislature steps in he may be evicted according to the terms of the contract and may also be compelled by force of circumstances to pay very heavy produce rent. Government would be powerless to help him in the absence of legislation. A bhag-chassi under a temporary lessee of Government on the other hand stands on a different footing.
It is always possible for Government, by inserting appropriate terms in the temporary leate, to safeguard the interests of the bhagchassis of the lessee. Hence, if the Legislature felt that the condition of this class of Bhagchassi was slightly different from that of Bhagchassis under private landlord and did not want to confer protection from eviction on that class, it will not be proper to hold that Act to be unconstitutional. So far as reduction of produce rent was concerned all classes of Bhagchassis were treated alike and Section 18 contained express words to that effect.
10. The only other provision of Section 18 which was challenged is Clause (e) which exempts all lands held on temporary lease under a Grama Sabha from the provisions of the Act conferring protection from eviction. The lands of a Grama Sabha are primarily lands for the purposes of that Grama Sabha as provided in the Orissa Gram Punchayats Act 1948.
Doubtless where those lands are not immediately needed for the purposes of the Sabha, the executive officers of the Sabha might have granted temporary leases for agricultural purposes and there may also be Bhagchassis under such lessees but the Act was not meant primarily for such Bhagchassis because even if the Grama Sabha or its temporary lessee evicts such Bhagchassis it cannot be said that such eviction was due to any apprehension about impending land reforms.
Such Bhagchassis therefore do not stand on the same footing as Bhagchassis under private landlords and if the legislature chose not to confer on them protection from eviction no question of discrimination would arise. The reasons given for holding Clause (d) of Section 18 to be constitutional would apply with full force in respect of Clause (e) also.
11. I may in this connection refer to a decision of the Supreme Court reported in Babu Rao V. Bombay Housing Board, AIR 1954 SC 153 (D) where the validity of the Bombay Housing Board Act 1948 was under consideration. Section 3 (a) of that Act exempted lands or buildings belonging to or vested in the Bombay Housing Board from the operation of the Bombay Rents, Hotel and Lodging House Rates Control Act 1947.
Section 4 of that Act exempted from the operation of the Act any premises belonging to the Government or a local authority and further provided that it would not apply as against the Government to any tenancy or other like relationship created by grant from Government in respect of premises taken on lease or requisitioned by Government.
This provision was challenged as amounting to unfair discrimination on the ground that tenants of houses under Government were not conferred the benefits of the Act whereas tenants of private house owners were conferred certain benefits. In repelling this argument their Lordships of the Supreme Court observed as follows: --
'It is not to be expected that the Government or the local authority or the Board would be actuated by any profit-making motive so as to unduly enhance the rents or eject the tenants from their respective properties as private landlords or are likely to be. Therefore the tenants of the Government or the local authority or the Board are not in need of such protection as the tenants of private landlords are, and this circumstance is a cogent basis for differentiation.
The two classes of tenants are not, by force of circumstances, placed on equal footing and the tenants of the Government or the local authority or the Board cannot therefore complain of any denial of equality before law or equal protection of the law'. These observations apply with full force to the lands of Government or of a Grama Sabha, and the mere fact that the Supreme Court decision dealt with Government as landlord of buildings whereas we are here concerned with the position of Government as landlord of agricultural, lands does not in any way affect the principle laid down by their Lordships. Government as the landlord will not arbitrarily evict a Bhagchassi from his lands and hence a Bhagchassi under Government or under a Grama Sabha does not stand on the same footing as a Bhagchassi under a private landlord.
12. I may also notice an argument advanced by the learned Advocate-General to the effect that the expression 'person' occurring in Article 14 of the Constitution will not include Government and that consequently any statute which discriminated between Government property on the one hand and private property on the other may not offend that article. In support of this contention he relied on Kesheo Prasad v. State of Madhya Pra-desh (S) AIR 1955 Nag 177 (E) and the Allahabad decision referred to therein: Motilal v. Govt. of the State of U. P., AIR 1951 All 257 (FB) (F).
But as pointed out in the Nagpur decision the expression 'person' occurring in Article 14 may not include Government only in respect of those functions which are incidental to the ordinary function of Government. It is true that in a modern welfare state the expression 'ordinary functions of Government' has a wider connotation than In Service v. State of Pepsu, (S) AIR 1956 Pepsu 3 (G) a strictly Police State as pointed out in People Bus but the question as to whether where Government is the owner of lands and leases them for purposes of cultivation to certain tenants it is performing the 'ordinary functions of Government' or else whether it is merely acting like any other private landlord is somewhat arguable.
It is, however, unnecessary to decide this question in the present case. Even if it be held that Government as the landlord is a 'person' within the meaning of Article 14 it cannot be said that the discrimination is unreasonable. The Legislature is the best judge to decide whether the evil of arbitrary eviction was so great as to necessitate legislation for the protection of tenants of private landlords only, or else whether tenants of Government also should be given such protection. If in its wisdom it thought that tenants of Government did not require protection, on such a piece of legislation cannot be held to be unconstitutional.
13. The next contention of Mr. Mohapatra requires a detailed scrutiny of Sub-sections (1) and (7) of Section 4 of the Act. Under the Orissa Tenants Protection Act all Bhagchassis holding land directly under a proprietor or tenure-holder were given absolute protection from eviction provided they were in possession of it on the 1st day of Sept. 1947.
But as regards Bhagchassis holding land directly under a ryot, a distinction was made between those Bhagchassis whose landlord (ryot) was in possession of more than 33 acres of land on the one hand and those in possession of less than 33 acres on the other. In the former case, the Bhagchassis were given absolute protection from eviction whereas in the latter case there was no such protection given, and it was open to their immediate landlord, namely, the ryot to evict them in accordance with the terms of the contract of tenancy.
Hence, under the Orissa Tenants Protection Act the classes of tenants protected from eviction were (I) Bhagchassis holding land directly under tenure-hofders of proprietors and (ii) Bhagchassis holding directly under ryots in possession of more than 33 acres. Section 4 (1) of the Act says that a landlord shall have the right to evict his tenant from any land selected by him for his personal cultivation to the aggregate extent of seven acres and for that purpose he may evict his tenants on or before a specified date after notice to the revenue authorities.
But Section 4(7) says that 'nothing in sub- Section (1) or Sub-section (2) shall apply to a tenant who is already protected from eviction under any other law in force prior to the date of commencement - of this Act.' Mr. Mohapatra urged that the expression 'any other law in force prior to the date of commencement of this Act' would also include the Orissa Tenants Protection Act and in view of the saving clause provided in Sub-section (7) of Section 4 of the Act those Bhagchassis Who were protected from eviction by virtue of the Tenants Protection Act cannot be evicted by the landlord in exercise of his power under Section 4(1) of the Act. According to him, therefore the net result is that only those landlords who were ryots holding less than 33 acres could take advantage of Section 4 (1) by evicting the Bhagchassis with a view to take seven acres for their personal cultivation. This according to him would amount to discrimination between this class of landlords and other landlords, which is unreasonable.
14. I am however unable to accept this argument. The question turns on the construction of the words 'any other law in force prior to the date of commencement of this Act' occurring in Sub-section (7) of Section 4. It is true that the Tenants Protection Act was also a law in force prior to the date of commencement of the Orissa Tenants Belief Act which protected tenants from eviction, but that Act was repealed with the passing of the Act and the only rights under the Tenants Protection Act which were saved were those expressly specified in Section 19 of the Act. When the Legislature expressly inserted the saving clause in Section 19, in respect of the repealed Act, there is no justification for construing Section 4(7) in such a manner as to save some other rights under the repealed Act, apart from those expressly saved by Section 19. Moreover the tense used in Section 4(7) is the present tense as will be clear from the words 'tenant who is already protected.'
Under the proviso to Sub-section (1) of Section 4 the landlord's right of selection could be exercised till the 15th June 1955 by which date the Orissa Tenants Protection Act had ceased to he in force. Hence, if say on the 1st June 1955 a landlord wanted to exercise his right under Sub-section (1) of Section 4 to select seven acres of land for his personal cultivation by evicting the tenants from those lands, it cannot be said that on that day such a tenant 'is already protected from eviction under any other law in force prior to the date of commencement of this Act'. If the Legislature wanted to include the Orissa Tenants Protection Act also within the scope of Sub-section (7) of Section 4, it would surely have used the words 'was protected from eviction'.
Hence, the true construction of Section 4(7) of the Act would be that it relates to those laws (which protected a tenant from eviction) which were in force prior to the date of commencement of the Act and which also continued to remain in force even after that date. Thus the normal Tenancy Laws of North and South Orissa such as the Orissa Tenancy Act or the Madras Estates Land Act conferring freedom from eviction on all occupancy ryots would come within the scope of Sub-section (7) of Section 4. If the saving clause of Sub-section (7) of Section 4 was not in the Act the landlord may while exercising his option under Sub-section (i) of Section 4 attempt to evict even occupancy ryots. It was with a view to prevent this contingency that Sub-section (7) was inserted in Section 4.
Hence, in my opinion the expression 'landlord' occurring in Sub-section (1) of Section 4 should be given the same meaning as in Section 2 (1) (e) and it would include all classes of landlords namely ex-proprietors, tenure-holders or ryots, and there is no discrimination amongst these classes, so far as the right to choose seven acres for the purpose of personal cultivation on or before a specified date is concerned.
15. Article 19(1) :-- Mr. H. Mohapatra urged that the provisions of Section 3 of the Act dealing with reduction of produce rent payable by a tenant to his landlord were so drastic as to leave very little margin for the landlord and that they imposed an unreasonable restriction on his right to hold property. He also urged that the procedural provisions regarding enquiries under the Act, especially R. 22 of the Orissa Tenants Protection Rules, offended the principles of natural justice and thereby amounted to an unreasonable restriction.
16. Hence the main question for consideration is whether the substantial reduction in the rights of the landlord brought about by Section 3 of the Act and the procedural provisions made for implementing that section amount to the imposition of an unreasonable restriction on his right to hold property within the meaning of Clause (5) of Article 19 of the Constitution.
17. In the well-known Madhya Pradesh case reported in Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 (H), it was pointed out by the Supreme Court that the words ''reasonable restrictions' in Article 19(6) connote that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of the public. .... Legislation which arbitrarily or excessively invades that right cannot be said to contain the quality of reasonableness, and unless it strikes a proper balance between the freedom guaranteed under Article 19(1)(g) and the social controf permitted by Clause (6) of Article 19 it must be held to be wanting in that quality.
It is true that the opinion of the Legislature of what is reasonable is not final and is subject to scrutiny by the High Court and the Supreme Court, but as pointed out by the Chief Justice of India in State of Madras v. V. G. Row, AIR 1952 SC 196 (I):
'It is important to bear in mind that the test of reasonableness wherever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial vertict.
In evaluating such elusive factors and determining their own conception of what is reasonable in all the circumstances of a given case it is in evitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part and the limit to their interference on legislative judgment in such cases can only be dictated by their own sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.'
18. Any legislation dealing with tenancy reform must necessarily diminish the rights of the landlord (1) by giving protection from eviction (subject to certain restrictions) to the actual cultivators and (2) by reducing the rent payable by him to the landlord. Mr. Mohapatra fairly conceded that in view of the decision of the Privy Council in Jagannath Bux v. United Provinces, AIR 1946 PC 127 (J) which has been followed in subsequent Supreme Court decisions, he could not contend that merely because the Act provided for reduction of produce rent and gave security of tenure to Bhagchassis it would be unconstitutional but he urged that the reduction of produce rent brought about by Section 3 of the Act was so drastic, and in some cases so arbitrary, that it amounted to an unreasonable restriction.
He has however given us no data to show that the reduction in rent brought about by Section 3 would practically leave nothing to the landlord. The proportion of gross produce which should reasonably go to the landlord is always a difficult question to decide and it should in the first instance be left to the Legislator's discretion. Doubtless, if the portion left to the landlord is palpably so negligible as to give him practically no income from his land there may be unreasonable restriction. But as pointed out in Rajah of Bobbili v. State of Madras, AIR 1952 Mad 203 (K), it is the duty of the petitioner-landlord to allege and prove facts which would conclusively establish that as a result of the reduced rate of rent fixed under the Act he has been totally or substantially deprived of the net income available to him.
The petitioner has given us no materials to support such a conclusion. Hence it cannot be said that the fixing of the proportion of produce rent payable to the landlord at one-fourth of the gross produce subject to certain maxima as regards dry lands and wet lands and as regards paddy crops and money crops is unreasonable. I have however perused the last Settlement Report of North Orissa (1922 to 1932) and find that nowhere in the districts of Cuttack, Puri and Bala. sore (See pages 192, 230 and 271) is the yield less than 13 maunds an acre for unirrigated lands and In many cases the yield is much higher.
Consequently, the fixing of one-fourth of the estimated produce as the amount payable to the landlord subject to a maximum of four maunds in the case of dry lands and six maunds in the case of wet lands will yet leave at least 3 1/2 to 4 maunds of paddy per acre as the landlord's share even in unirrigated lands. Under the current market-rate of paddy this would easily give him about Rs. 25/- per acre which after deduction of cash rent payable by him to his superior landlord and payment of cess, etc. would still leave a sufficient margin.
If he is himself a phulibhag ryot and has to pay produce rent to his superior landlord Sub-section (2) of Section 3 says that he will have to pay only two-thirds of what is payable to him by his Bhag-chassi. Hence, even a ryot paying produce rent to his superior landlord who has allowed a Bhag-chassi to cultivate his laud, would get a net income of 1/12th of the gross produce. In the absence of further data I am unable to hold that the net income available to the landlord is very negligible. It was, however, urged that Clause (c) of Sub-section (1) of Section 3 prohibited a landlord from recovering from his tenant cess, water-rate or other dues payable and that this prohibition amounted to an unreasonable restriction.
The land cess payable under the Cess Act is hardly one anna in the rupee of the rental and if the tenant is exempted from paying the same it does not very much affect the income of the landlord. It is true that the clause prohibits the landlord from realising even water rate from his tenants though he is bound to pay water rate to the Government where his lands are irrigated from Government irrigation sources. But as the yield of paddy from irrigated land is higher than from dry land the proportionate income which accrues to him will also be higher and if the Legislature thought that he should pay the entire water rate, it cannot be said that this provision is unreasonable.
It was also urged that by virtue of Explanation 3 to Section 3(2) of the Act the gross produce was deemed include all subsidiary crops and hay and straw, and that consequently a landlord whose lands bear only one crop and a landlord whose lands bear two crops are put on the same footing which again amounts to an unreasonable restriction. It is true that in fixing the maximum per maund in Clause (b) of Sub-section (1) of Section 3 of the Act no distinction was made between those lands which bear two crops and those which bear only one. But the ultimate effect of all these provisions is to reduce the rent and so long as the net income available to the landlord is not rendered illusory it will not be proper for the Court to question the wisdom of the Legislature.
19. I may now deal with the procedural provisions under the Act. Disputes arising under the Act have been made exclusively cognizable by the Revenue Officers (See Sections 9, 10 and 11) and Section 17 of the Ant confers power on the State Government to make rules for carrying out the purposes of the Act. In exercise of this power the Government of Orissa made Rule 22 which is as follows:
'Rule 22. Enquiries, under this Act may be of a summary nature. The Collector may give an opportunity to both parties to be heard and may also hold a local enquiry where necessary. It shall not be essential for the Collector to record the deposition of any witness; but he may make a brief memorandum of the evidence on the basis of which he arrives at his decision. The Collector shall be competent to dispense with the personal attendance of either party and to hear, or refuse to hear, any Advocate, Pleader, Vakil or Muktar appearing on behalf of either party.'
20. In testing the unreasonableness of restrictions for the purposes of Article 19, the procedural provisions of the statute should also be looked into along with the substantive provisions. In Ram Prasad v. State of Bihar, AIR 1953 SC 215 (1) the Chief Justice of India pointed out that a statute which provides for adjudication of a dispute between private parties must provide well established safeguards which include the right to be heard, the right to produce witnesses and so forth. It will be noticed that these rights have been fully safeguarded in Rule 22.
The right of the landlord and tenant to be heard is expressly provided for. Doubtless the enquiry is made summary and the Collector is not required to record fully the depositions of witnesses, but only to make a brief memorandum of the evidence on the basis of which he arrives at his decision. It was urged that as, under the Act, the order of the Collector is appealable, any provision in the rule dispensing with the full recording of the deposition of a witness would be unreasonable. This argument is clearly unsound. It is a well known feature of all summary enquiries and trials that evidence need not be recorded in full even though the order of the Court may be appealable. Thus in Chapter XXII of the Criminal Procedure Code (Summary Trials) Section 264 permits the recording of only the substance of the evidence even though the order is appealable.
Hence merely because in a summary enquiry under the Orissa Tenants Relief Act the Revenue Officer is given discretion not to record the depositions of witnesses in full such a provision cannot be held to be unreasonable. The last portion of the rule which gives the officer the power to hear or refuse to hear an advocate appearing on behalf of either party, was also adversely commented upon. Where civil rights are under dispute there is no fundamental right for either party to appear through a legal practitioner (See Nanalal M. Varma v. G. Ambulal, AIR 1956 Cal 476 (M) ). Where the liberty of a citizen is invofved Article 22(1) of the Constitution confers this right.
Hence, where a statute which deals With civil rights denies to a party the right to be represented by a legal practitioner the question as to whether such a provision would be unreasonable must be judged from other circumstances such as the nature of the dispute that has to be decided by the authority concerned, etc. Disputes arising under the Act are generally simple and depend mainly on ascertainment of facts. The Act itself is a temporary measure and an enquiry under the Act must necessarily be held as quickly as possible. Rule 16 contains detailed provisions regarding the hearing of such disputes and Rule 17 permits local enquiry. These provisions, in my opinion, provide sufficient safeguards for compliance with the rules of natural justice.
Ordinarily, where summary local enquiries are made at the spot to decide such dispute the necessity to hear a legal practitioner may not arise though in respect of certain matters involving difficult questions of law the help of a legal practitioner may be very valuable. In such cases Borne discretion should be left with the Court concerned. Hence the provision in the Rules framed under the Act conferring discretionary power on the enquiring officer to allow or refuse to allow either party to be represented by a legal practitioner cannot be held to be unreasonable.
21. For the aforesaid reasons I would dismiss this petition with costs. Hearing fee Rs. 100/-.