1. This is a petition under Article 226 of the Constitution for a declaration that the provisions of the Orissa Tenants Protection Act, 1948 (Orissa Act 3 of 1948) are void as being inconsistent with the fundamental rights guaranteed Hinder the Constitution and that proceedings under that Act pending in the Court of the Second Officer, Russelkonda, in Misc. Petition No. 38 of 1950 are without jurisdiction.
2. The petitioner claims to be the owner of about 22 acres of agricultural land in Canjam district. He alleged that formerly he allowed the opposite party to cultivate about five acres of his land; but as the latter defaulted in payment of rent he evicted him as early as 1946 and took over the cultivation of the said land through his farm servants. In January 1948, the Orissa Legislative Assembly passed, an Act entitled the Orissa Tenants Protection Act, 1948, which having been assented to by the Governor-General, came into force in all the districts of the old Province of Orissa, except Sambalpur, on 14-2-1948. It was alleged by the petitioner that taking advantage of some of its provisions, the opposite party filed a petition (M. P. No. 35 of 1949) in the Court of the Second Officer, Russelkonda, requesting that Revenue Officer to allow him to remain in possession ofthe said lands. When notice of that application was served on the petitioner he entered appearance before the said Revenue Officer and urged that the provisions of the O. T. P. Act became void after the advent of the Constitution. The Second Officer of Russelkonda while rejecting the contention of the petitioner observed :
'This subject-matter can better be moved and decided by the Hon'ble High Court of Orissa. So. the petition is rejected and this Court will proceed with the present proceedings.'
Thereupon the present application under Article226 of the Constitution was filed before us.
3. It will be useful at this stage to review briefly the history which preceded the passing of the O. T. P. Act, 1948 (hereinafter referred to as the impugned Act). The tenancy laws in force in North Orissa (excluding Sambalpur) and South Orissa. were respectively known as the Orissa Tenancy Act, 1913 and the Madras Estates Land Act, 1908. Both the Acts were mainly concerned with safeguarding the interests of 'Raiyats' (known as Ryots in South Orissa) who, according to the definition of the expression, were persons who primarily acquired a right to hold land for the purpose of cultivating the same with the help of the members of their family and hired labourers. But in due course of time raiyati interests were acquired by persons who were not actual cultivators and who sub-let the same to persons who were known as under-raiyats, undertenants or Bhag-chasis, who were the actual tillers of the soil. The interests of these Bhag-chasis were not adequately protected in the aforesaid two Acts and they were liable to eviction on the expiry of the agricultural year, or on the expiry of the term of the lease under which they cultivated the land of a raiyat. Their tenancies were held on produce rent and the share payable to their landlords was generally half the gross produce.
4. Immediately above the raiyats were a class of tenants known as 'tenure-holders' (practically unknown in South Orissa) who acquired the right to hold land for the primary purpose of settling tenants and collecting rents from them. Most of their lands were held by raiyats who paid cash or produce rent to them; but some of their lands were in their khas possession and these were known as Nij-jote or Nijchas. These lands also were usually sub-let to Bhag-chasis who actually cultivated the same and gave half the gross produce as rent to the tenure-holders.
5. Above the tenure-holders were proprietors who were holders of 'estates' and who were known as zamindars. In South Orissa, these estates were permanently settled and the proprietors were owners of large areas of land, succession to which was governed by the rule of primogeniture as regulated in the Madras Impartible Estates Act. In North Orissa, however, there were both permanently settled and temporary settled estates and also partible and impartible estates. Some of the partible estates, in the temporary settled areas were very small and, not infrequently, there were instances of proprietors who were owners of a lesser area of land than big raiyats of their village'. All these classes of proprietors held under their khas possession some lands known as Nij-jote, Nij-chas, Heta etc. which were usually sub-let to Bhag-chasis whopaid them half the gross produce es rent. The Bhag-chasis (whether under a raiyat, tenure-holder or proprietor) were thus the actual tillers of the soil, but the existing tenancy laws did not give them sufficient security from eviction and the high rate of produce rent payable by them (half the gross produce) left them very little margin even for their bare subsistence.
6. The amelioration of the condition of these Bhag-chasis was engaging the attention of the Governments of many States in India for more than a decade prior to the passing of the impugned Act. A passing reference may be made in this connection to the report of the Madras Estates Land Act Committee of the year 1938 (known as Pakasam Committee) which recommended radical amendment to the Madras Estates Land Act and drastic reduction of the rent payable by the tenants to the landlord. Doubtless the question of the status of the Bhag-chasis (under-tenants) was not fully discussed in that report for reasons mentioned at page 263 of Vol. I of that report. But in the report of the Land Revenue Commission, Bengal, 1940 (known as the Floud Commission's Report) this question was considered and in Chap. 4 of Vol. 1 of that report it was suggested (see paras 145 and 149) that the share of the produce rent payable by the Bhag-chasis to their immediate landlord should be reduced. In the Famine Enquiry Commission's report of 1945 (known as the Rowland Commission's Report) the same question was further discussed and information about the condition of the Bhag-chasis was collected from the various Provinces of India including Orissa. The Government of Orissa than suggested that suitable legislation should be undertaken to reduce the produce rent to one-third of the gross produce. In para 38 of Chapter I of Part 4. the Committee after reviewing the suggestions of the various Provincial Governments pointed out 'It seems to us 'prima facie' probable that production must suffer where the tenure of the cultivator is insecure & the incidence of the rent so -heavy as to leave the cultivator an inadequate return for his labour and enterprise.'In para 40 the Committee observed:
'The terms on which land is let by occupancy-right-holders to non-occupancy tenants are a material factor in determining the efficiency of agricultural production. It is desirable that the terms of tenancy should be such that either the occupancy-right-holder provides the facilities necessary for efficient cultivation.'
When the Congress Party assumed power in Orissa in April 1946 they were aware of the reports of the aforesaid Commissions and Committee in other Provinces and the necessity of taking steps to improve the condition of the Bhag-chasis. On 15-11-1946 the Government of Orissa appointed a Committee known as the Land Revenue and Land Tenure Committee, Orissa, one of whose terms of reference was 'to improve agricultural production and raise the standard of Ufa of the cultivating classes'. In the Government Resolution No. 7533--R of that date the Committee was specially directed to examine the reports of the Floud Commission and Rowland Committee, while making its recommendation. Thus it seems to have been recognised by all competent authorities that (i) the existing rate of rent payable by the Bhag-chasis was so heavy as to leave them an inadequate return for their labours and enterprise and (ii) the security of tenure of the Bhag-chasis was desirable so as to improve agricultural production. As there was some delay on the part of the said Committee in submitting its recommendations, the Government as an interim measure introduced in the Orissa Legislature as early as 19-12-1947, a Bill known as the Orissa Tenants Protection Bill, 1943. The Statements of Objects and Reasons of the Bill are worth quoting.
'It is well known that the status of the Bhagchasis is very insecure. They have not been, recognised by the land laws in force in some parts of the Province. They can be evicted at the sweet will of the land-holders, who often realise more than half the gross produce as rent besides exacting forced labour, Government, therefore, consider it necessary to give protection to these Bhag-chasis against eviction and in respect of the produce rent payable by them. As comprehensive legislation in this respect is not possible until the report of the Land Revenue and Land Tenure Committee, which is examining these questions, is available the present Bill has been drawn up as an interim measure to give immediate relief to these classes of tenants for a period of two years,'
The Bill was eventually passed by the legisla-ture and became the law of the land on 14-2-1948. It was a temporary Act whose life was extended from time to time and at present its fife is limited to 15-4-1953. In the meantime the said Committee completed its labours and submitted its report to the Government on 17-7-1949 recommending the abolition of the zamindari system and suggesting several radical changes in the administration which are not relevant for the present purpose. It is sufficient to note that in pursuance of the recommendation of the Committee the Orissa Legislature has recently passed an Act known as the Orissa Estates Abolition Act, 1051.
7. It was not seriously urged that the impugned Act was invalid in 1948 when it was passed by the Orissa Legislature exercising its powers under the Government of India Act. 1935. The main contention of the learned counsel for the petitioner is that after the advent of the Constitution, the essential provisions of the Act became void* as being inconsistent with the fundamental rights and that consequently this Court should under Article 13 of the Constitution declare the whole Act to be invalid,
8. The important provisions of the impugned Act may now be described. Its primary object was to give temporary protection to Bhag-chasis who under the then existing tenancy laws of North and South Orissa were liable to eviction. Section 3 of the Act prohibits the eviction of such Bhag-chasis from the lands which they were cultivating on 1-9-1947. An exception was, however, made in the case of Bhag-chasis cultivating the lands of a raiyat when the total extent of the possession of the raiyat on 30-11-1947 did not exceed 33 acres. (See the definition of 'tenant' in Excpn. (3) to Section 2(g)). The Bhag-chasis of that class of raiyats were not given any protection from eviction by the impugned Act, Section 4 of the Act directed; the stay of all suits, proceedings in execution of decrees or orders for the eviction of Bhag-chasis from their lands. But sufficient safeguards were provided for the realisation of the rents due from the Bhag-chasis to their landlords. Section 6 modified the provisions of the Orissa Tenancy Act, 1913 and the Madras Estates Land Act, 1908 as regards the share of the produce rent payable by a tenant to his landlord. It directed that in North Orissa an occupancy raiyat was not bound to pay more than one-third of the gross produce; and in South Orissa it directed that the ryot was not bound to pay more than one sixth of the gross produce. As regards Bhag-chasis the section further provided that they were not bound to pay more than two-fifths of the gross produce as rent to their landlord. Section 7 conferred on the Collector and other Revenue Officers exclusive jurisdiction to decide all disputes between landlords and tenants regarding matters which may arise out of the application of the provisions of the impugned Act and Section 8 Busted the jurisdiction of the Civil Courts in respect of those matters. Section 13 declared that the provisions of the impugned Act should, as far as may be, be read and construed as forming part of the Madras Estates Land Act, 1908 and Orissa Tenancy Act, 1913. Section 15 further declared that the impugned Act did not confer any additional right in land on any tenant & that on the expiry of that Act the tenant would possess the same right which he would have possessed if the Act had not been passed. Section 17 conferred power on the Provincial Government to do anything which appeared to them necessary for the purpose of removing any difficulty that may arise in giving effect to the provisions of the Act.
9. The grounds on which the impugned Act were attacked are as follows:
(i) Section 17 amounted to an abdication of power by the Legislature and was, therefore, invalid.
(ii) Section 6 was partially confiscatory in character inasmuch as it reduced the rent which was lawfully payable to the landlord under the existing tenancy laws without payment of any compensation and consequently contravened Article 31(2) of the Constitution.
(iii) Sections 3, 4 and 6 imposed unreasonable restrictions on the owner of land from holding his property and thereby contravened Sub-clause (f) of Clause (1) of Article 19 of the Constitution and were not saved by Clause T5) of that Article.
(iv) The Act offended Article 14 also inasmuch as there was an unfair discrimination between raiyats whose total extent of land was below 33 acres on the one hand and other classes of landlords on the other.
10. 'Ground No. (i)': Section 37 of the impugned Act is as follows:
'If any difficulty arises in giving effect to the provisions of this Act, the Provincial Government may, as occasion may arise, by order do anything which appears to them necessary for the purpose of removing the difficulty.'
It will be noticed that unlimited powers are not given to the Government to do anything which they like for the purpose of removing any difficulty. The section makes it clear that if any difficulty arises 'in giving effect to the provisions of the Act' the Government may do anything necessary for the purpose of removing the difficulty. A provision of this type usually known as the 'Henry VIII clause' is a well-known drafting device which is found in seve-ral Acts (Indian and British) such as Section 44 of the Calcutta Municipal Act, 1923 (Beng. Act 3 of 1923), Section 8(4), Madras Medical Registration (Amendment) Act, 1938 (Mad Act 16 of 3938), Section 96, Road Traffic Act, 1930 (20 & 21 Geo. V, c. 43) and Section 45, Unemployment Insurance Act, 1920 (10 & 11 Geo. V c. 30). The necessity for such a provision will be clear from the following passage at p. 332 of Martts Introduction to the Law-of Local Government and Administration, third edition:
'Politically the justification for the use of this type of clause is that Parliament has approved of the general principle embodied in the legislation which contains it, and wishes to see it set into operation immediately. The best brains may fail to foresee some special difficulty which may only arise when the machinery of the Act comes to be put into actual operation. If such a difficulty should arise, it may be assumed that Parliament would be prepared to give its assistance in removing it by passing amending legislation; but this course would involve delay, and Parliament accordingly 'a priori' delegates the power to remove difficulties to Ministers, who have proposed the legislation in question and in whom it has confidence.'
The impugned Act made drastic changes in the existing tenancy laws mainly in 'favour of the Bhag-chasis and the Legislature could not obviously foresee and make adequate provision for all practical difficulties that may arise in giving effect to its provisions. It, therefore, delegated this power to the Government.
11. The propriety of extensive delegation of varied and far reaching powers under the 'Henry VIII clause' was severely commented upon by Lord Hewart C. J. in -- 'Rex v. Minister of Health', (3927) 2 K B 229 at p. 236 (A) while construing Section 67, Rating and Valuation Act, 1925 (15 & 16 Geo. 5, c. 90). But that section was wider in terms than Section 17 of the impugned Act and conferred on the Minister power to do anything for bringing the provisions of that Act into operation and also to modify the provisions of the Act so far as may appear to the Minister necessary. The impugned provision, however, does not confer on the Government the power to modify the impugned Act and to that extent the delegation of powers to the Government is not so extensive as in the said British Act. After the said decision of the Kings Bench Division a Committee known as the Donoughmore Committee went into the question and disapproved the use of such a clause in Parliamentary legislation and such clauses are not found in the later Acts of Parliament without a safeguarding provision to the effect that any exercise by a Minister of the power under that clause requires subsequent ratification by the Parliament.
12. There is, doubtless, a fundamental difference between the powers of the British Parliament on the one hand and the Legislatures in India on the other. The latter are bound by the provisions of the written constitution. But as was pointed out by the Privy Council in the well-known 'Burah's case' ( (1878) 3 A C 889 'The Queen v. Burah', (B) and reiterated in --'Emperor v. Benoari Lal Sarma', AIR 1945 P C 48 (C) Legislatures in India have plenary powers of legislation, as large and of the same nature as those of British Parliament itself in respect of matters which come within their legislativecompetence. The impugned Act deals with the relationship of landlord and tenant and is re-latable to Item 18 of List II of Schedule 7 to the Constitution, which corresponds to Item 21 of List II of Schedule 7 to the Government of India Act, 1935. In exercise of the legislative power under that item the Orissa Legislative Assembly could validly delegate its powers to the same extent as the British Parliament itself. It is true that the Legislature cannot abdicate its functions. But the provisions of Section 17 of the impugned Act cannot reasonably be held to amount to such abdication. The essential principles have been laid down in the preceding provisions of that Act and a limited power of removing difficulties for the purpose of giving effect to the provisions of the Act alone was conferred on the Legislature. The entire question about the extent, of delegation of legislative power and the dividing line between true delegation on the one hand and abdicationof functions by the Legislature on the other have been fully discussed in the recent decision of their Lordships of the Supreme Court in -- 'Constitution of India and Delhi Laws Act (1912) Etc., In re.', AIR 1951 S C 332 (D) and it is unnecessary to repeat them here. I would only content myself with observing that the delegation by the Legislature was more extensive in the Delhi Laws Act case and yet their Lordships of the Supreme Court of India held that the impugned laws did not amount to abdication of functions by the Legislature. It is, therefore, futile to urge that Section 17 of the impugned Act is invalid as amounting to abdication of functions.
13. 'Ground No. (ii)': The second ground is also equally untenable. Article 31(2) of the Constitution safeguards the right of a person to compensation when his interest in land is acquired for a public purpose and it corresponds to Section 299(2), Government of India Act, 1935. Prior to the passing of the impugned Act the landlords were entitled to at least one half of the gross produce from the cultivators. Section 6 of the impugned Act reduces thelandlord's share to one-third of the gross produce in some places, to one-sixth in other places and to two-fifths in respect of certain classes of tenants. TO that extent there is a diminution of the rights of the landlord. But such diminution is inevitable in any legislation of tenancy reform. It was pointed out in --'Jagannath Baksh v. United Provinces', AIR 1946 P C 127 (E) that any piece of tenancy legislation which regulates the relations of landlord and tenant and thereby diminishes the rights hitherto exercised by the landlord in connection with his land, would not be a law dealing with acquisition of immoveable property for public purposes within the meaning of Section 299(2), Government of India Act, Hence the question of payment of compensation does not arise. I would, therefore, reject the argument that Section 6 of the impugned Act is partially confiscatory and that it offends Article 31(2) of the Constitution.
14. 'Ground No. (iii)': As regards ground . No, (iii), the question for consideration is whether the impugned Act (especially Sections 3, 4 & 6) imposes unreasonable restrictions on a citizen in respect of his right to 'hold' his property and whether those restrictions are in the interestsof the general public. Sub-clause (f) of Clause (1) of Article 19 and Clause (5) of the same Article have been construed in several recent decisions ofthe Supreme Court and other High Courts andconsequently ' there is no difficulty in decidingthis question.
15. It is true that the impugned Act. was meant to benefit a certain class of tenants known as Bhag-chasis who under the existing tenancy laws had no security of tenure at all. It was urged that a piece of legislation of this type intended to benefit one class of tenants was not 'in the interests of the general public' as required in cl, (5) of Article 19. In support of this argument reliance was placed on the following passage in the judgment of Kania C. J. in --'A. K. Gopalan v. The State of Madras', AIR 1950 S C 27 at p. 36 (F) while referring to Clause (5) of Article 19:
'This is obvious to prevent an argument being advanced that while such restriction could be put in the interest of general public, the Constitution did not provide for imposition of such restriction to 'protect the interest of a smaller group of people only'.'
This observation however should not be torn from the context and taken as an authority for the view that any legislation meant for the benefit of a well-defined class of the general public will not be 'in the interests of the general public'. This point was made clear by 'Mukherjea J. in a later decision of the Supreme Court reported in -- 'Charanjit Lal v. Union of India', AIR 1951 S C 41 at p. 57 (G) wherein he observed:
'......I may state here that even if it is conceded for argument's sake that the disabilities imposed by the impugned legislation amount to restrictions on proprietary right, they may very well be supported as reasonable restraints imposed in the interests of general public, viz., to secure The supply of a commodity essential to the community & to prevent a 'serious unemployment amongst a section of the people......''
In a recent Full Bench decision of the Calcutta High Court reported in -- 'Iswari Prosad v. N. K. Sen', AIR 1952 Cal 273 at p. 278 (FB) (H) the Chief Justice of the Calcutta High Court pointed out that 'the interests of the general public' referred to in Article 19(1)(f) did not mean 'the interests of the public of the whole of the Republic of India'. He further pointed out:
'The phrase 'in the interests of the general public' means, I think, nothing more than 'in the public interests', and it may well be that legislation affecting a limited class of persons or a limited area might well be legislation in the public interest, though the public of other parts of India might not be directly affected by such legislation. The matter may be in the interests of the general public, though the public generally may not be directly affected by such legislation. If they are indirectly affected such would be quite sufficient to make such legislation in the public interest. Legislation affecting a particular class or a particular area would only directly affect the members of that class or the inhabitants of that particular area. But the removal of some serious abuse or grievance or discontent is a matter indirectly affecting the public generally. It is not in the interests of the general public or in the public interest to allow any class of persons to labour under some grievance and to be genuinely discontented. It is in the interests of the general public or in the public interest that all classesof the citizens of India are content and that their grievances should be removed. A festering sore on the human body may eventually affect the. whole body though at first its effect is localised. Grievances or discontent in some particular area or in some State or in some class of persons may eventually affect the whole republic of India, though originally the effects might be limited.'
16. With respect I would 'entirely agree with these observations. A distinction should be made between 'interests of the general public' on the one hand and 'benefit of a section of a public' on the other. Legislation intended for the benefit of a class of the public may still be in the interests of the general public. It is well known that Bhag-chasis form a very large proportion of the agricultural tenantry in Orissa and though they are the actual tillers of the soil the existing tenancy law gives them inadequate protection. They are liable to eviction, after the expiry of the lease and the produce rent payable by them is high. These factors have been considered by competent authorities to be responsible for their low standard of living and also for diminution in agricultural production. Hence by giving them security of tenure and by reducing the rent payable by them, even though for a temporary period, the impugned Act would only benefit the Bhag-chasis but also have the indirect effect of increasing agricultural production and thus bringing general prosperity to the public as a whole. Moreover it would remove the standing grievance of a large proportion of agricultural labourers. I would therefore take the v|ew that the impugned Act is in the interests of the general public though the persons primarily benefited by it are one class of tenants known as Bhag-chasis.
17. The next question is whether those restrictions are 'reasonable'. The standard to be applied in testing whether a particular piece of legislation is reasonable is undoubtedly not very precise. But it was laid down by the Supreme Court in -- 'Chintamanrao v. The State of Madhya Pradesh', AIR 1951 S C 118 at p. 119 (I):
'The word 'reasonable' implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 19, it must be held to be wanting in that quality.'
In a later Supreme Court decision reported in -- 'State of Bombay v. Balsara', AIR 1951 SC 318 at p. 328 (J) it was further pointed out:
'In judging the reasonableness of the restrictions imposed by the Act, one has to bear in mind the directive principles of State policy set forth in Article 47 of the Constitution.'
Thus any piece of legislation which implements one of the directive principles of State, policy set forth in Part I of the Constitution would prima facie be reasonable unless it could be further shown that there was arbitrary or excessive invasion of the fundamental right to hold property,
18. It was urged that Section 4 of the impugned Act amounted to such excessive invasion inasmuch as that provision applied to all suits, proceedings in execution of decrees or ordersand other proceedings pending against Bhag-chasis on the date on which the impugned Act came into force. Thus decrees for eviction of Bhag-chasis obtained by the landlords prior to the commencement of the impugned Act have been made practically non-executable and to that limited extent retrospective operation has been given to the impugned Act. In support of this argument reliance was placed on a Division Bench decision of the Calcutta High Court reported in -- 'Subodh G6pal v, Behari Lal', AIR 1951 Cal 85 (K) where it was held that Section 7, Bengal Land Revenue Sales (West Bengal Amendment) Act which made the amending Act applicable to pending suits & unexecuted decrees was prima facie unreasonable. In that decision however after examining the provisions of the said Act and the previous law on the subject the learned Judges held that the giving of such retrospective effect was not necessary for preventing the mischief which, the Legislature sought to remedy and to that extent it was unreasonable.
It appears that the decision is pending appeal in the Supreme Court. Apart from this consideration, in a later Full Bench decision of the Calcutta High Court reported in -- 'AIR 1952 Cal 273' (H) the same High Court distinguished the earlier decision and held that the provisions of the West Bengal Rent Control (Amendment) Act of 1950 Which were in terms retrospective in operation and applicable to pending cases were not unreasonable. Therefore there is no general rule of law that the provisions of any Act which have limited retrospective effect and are made applicable to pending proceedings so as to affect vested rights are necessarily unreasonable. The question will turn in the end on what was the evil that the Legislature wanted to remedy and whether such a provision was necessary for the removal of that evil.
19. It has already been shown that the impugned Act was passed for removing two of the standing grievances of Bhag-chasis, namely, insecurity of tenure and high rate of rent. It. is true that Section 4 adversely affected pending proceedings initiated by the landlords for eviction of Bhag-chasis. But such a provision was necessary for the purpose of giving security of tenure to the Bhag-chasis; otherwise there was a danger of most of the Bhag-chasis of the Province being ejected during the appreciable interval between the date when the Government's intention to initiate legislation on the subject was known and the date of the passing of the impugned Act, thereby resulting in widespread unemployment amongst agricultural tenants with disastrous consequences to agricultural production and the maintenance of order in the State. This was presumably the reason why retrospective effect was given to the Act from 1-9-1947 and protection from eviction was given to all Bhag-chasis who were in possession of their lands on that date. At the same time the Legislature made adequate provisions in Sub-sections (2), (3), (4), (5) and (6) of Section 4 for realisation of. rents by the landlords so that the Bhag-chasis may not misuse their freedom, from eviction by refusing to pay any rent at all to their landlords. Thus the Legislature struck a reasonable balance between the liability of the Bhag-chasis to pay rent and the urgent necessity of improving their economic condition so as to increase agricultural production.
20. The impugned Act is also justifiable as being in conformity with Article 43 of the Constitution which runs thus:
'The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of works ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.'
The Bhag-chasis are undoubtedly agricultural works and on account of the high rate of produce rent which they were required to pay to their landlords they were not getting adequate living wages. Moreover, the insecurity of their tenure was hanging over their head like the sword of Damocles thereby adversely affecting the conditions under which they worked. The impugned Act, though a temporary measure, can thus be justified as carrying into effect one of the important directive principles of State policy laid down by the makers of the Constitution.
21. Reliance was placed on a recent decision of the Saurashtra High Court reported in --'Jayantilal v. State of Saurashtra', AIR 1952 Sau. 59 (L). In that decision it was held that Section 5, Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance 1949 contravened the fundamental rights of a citizen to hold property inasmuch as under it a holder of land can be deprived of his management and incidentally of his occupation and business as an agriculturist. If the facts of that case are carefully scrutinised they will be found to be fundamentally different from the present case. There it was a question of completely depriving the landholder (corresponding to the landlords in this State) of his right to manage his lands. The Saurashtra High Court held relying on --'Brajnandan Sharma v. State of Bihar', AIR 1950 Pat 322 (FB) (M) that no compelling reasons were given to justify such a drastic piece of legislation. This case may be a good authority for declaring invalid the provisions of any Act passed by the Legislature of Orissa in taking over the management of the estates of landlords. But it cannot invalidate a piece of tenancy legislation like the impugned Act which without in any way interfering with the right of management of property by the landlords, merely gives security of tenure to the sublessees of the landlords and reduces the produce rent payable by them. The impugned Act did not deprive the landlord of 'practically all his rights as a owner of property' so as to attract the principles laid down in the Saurashtra decision.
22. Hence judged from any point of view I am satisfied th^t the restrictions imposed by the impugned Act on the fundamental right of a citizen to hold landed property are reasonable and in the interests of the general public.
23. GROUND NO. (iv). This ground deals with contravention of Article 14 of the Constitution. That Article forbids discrimination between class and class. But it was pointed out in -- 'AIR 1951 SC 41 at p. 57' (G): 'The Legislature undoubtedly has a wide field of choice in determining and classifying the subject of its laws, and if the law deals alike with all of a certain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should neverbe arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which the classification is made; and classification made without any substantial basis should be regarded as invalid.' A piece of legislation which classifies different sets of persons and discriminates in the application of the law in respect of persons and discriminates in the application of the law in respect of those classes will not offend Article 14 if it could be shown that the classification was reasonable. This principle was emphasised by the Supreme Court in -- 'State of West Bengal v. A. S. Sarkar', AIR 1952 S C 75 (N) where the test applied was whether there was a reasonable basis for differentiation between classes of persons. Again in -- 'Kathi Raning Rawat v. State of Saurashtra', AIR 1952 SC 123 (O) Fazl Ali J. at p. 127 pointed out the distinction between 'discrimination without reason' and 'discrimination with reason' and observed:
'The whole doctrine of classification is based on this distinction and on the well-known fact that the circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects, so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances.'
24. In applying the aforesaid principles to the present case the Court should bear in mind the broad distinction between raiyats on the one hand and tenure-holders and proprietors on the other. A raiyat is primarily a person who has acquired the right to hold land for the purpose of actual cultivation whereas a tenure-holder in North Orissa primarily acquires land for the purpose of establishing tenants on it and collecting rents from them (see Section 5 (1) and (2), Orissa Tenancy Act). So far as proprietors are concerned the estates were settled with them for the realisation of Government revenue and their primary function was to collect rents from tenure-holders and raiyats. In fact in Bengal Regulation No. 1 of 1793 the Governor-General while cautioning the proprietors to conduct themselves with good faith and moderation towards their dependent Talukdars (corresponding to tenure-holders) and raiyats, expressly reserved to himself the right to enact such Regulations as may be necessary for the protection and welfare of raiyats and 'other cultivators of the soil', thereby making it clear that the proprietors were not cultivators of the soil (See Articles VI and VII of that Regulation). The other Regulations by which revenue settlements were made in North and South Orissa are modelled on Bengal Regulation No. 1 of 1793 and the same reasoning would apply with equal force. Thus though, some lands may remain in the actual possession of proprietors and tenure-holders and may be cultivated by them through, hired labourers or Bhag-chasis the fact remains that they are not primarily cultivators Or tillers, of the soil.
On the other hand raiyats are primarily cultivators though some raiyats have sub-let their holdings to Bhag-chasis. It is true that Bhag-chasis exist both under raiyats and also under tenure-holders or proprietors. But the Legislature thought that a Bhag-chasi cultivating' land under a tenure-holder or a proprietor should be protected fromeviction under all circumstances, whereas a Bhag-chasi cultivating the lands of a raiyat would be so protected only if the total extent of the lands of the raiyat is above 33 acres. This discrimination between one class of raiyats on the one hand and proprietors and tenure-holders on the other is reasonable & is based on the fundamental difference in the nature of the rights in land of those classes of persons.
25. It was urged that in the temporarily-settled estates of North Orissa there were several petty proprietors and tenure-holders with less than 33 acres of land in all, whereas there were several raiyats more prosperous than they and that the impugned Act would hit the former class very hardly. There is no doubt that petty proprietors and petty tenure-holders who are found in great abundance in NorthOrissa will be affected severely by the impugned Act. They will not be able to evict their Bhag-chasis even though they may be keen on cultivating their lands themselvesand may possess the necessary facilities for that purpose. But the tenancy laws recognised in them only the primary right to realise rents from tenants and the Legislature found that they had sub-let some of their lands with Bhag-chasis. Hence if the Legislature thoughtthat they should be treated differently from the raiyats it cannot be said that there was no reasonable basis for such discrimination. Certain class of petty tenure-holders known as Tanki Baheldars who are found in Purt district were treated 'as raiyats by the impugned Act by an artificial definition given in Expln. II to Section 2. The Legislature-however did not think it necessary to extend that definition to other petty proprietors or tenure-holders whose position was in no way better than that of Tanki Baheldars. But this is essentially a matter for the Legislature to decide and if it chooses not to exempt one class of petty proprietors or tenure-holders from the operations of the Act there is no ground for saying that the exemption conferred on the other class amounts to discrimination. As was pointed out by Das J. in -- 'AIR 1951 SC 41' (G):
'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 a particular class and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist.'
I may in this connection refer to -- 'Bishnu Charan v. State of Orissa', AIR 1952 Orissa11 at p. 18 (P) where my Lord the Chief Justice relied on -- 'Middleton v. Taxas Power and Light Co.', (1918) 249 US 152 at p. 157 (Q) and--'Radick v. People of the State of New York',(1924) 264 U S 292 at p. 297 (R) for the viewthat:
'the Legislature is not bound in order to support the constitutional validity of its regulation to extend it to all cases which it might possibly reach.'
(26. It was then urged that there was afurther distinction between raiyats whose totalextent of land was more than 33 acres on theone hand and those raiyats whose total extent of land was less than 33 acres on the other. The Bhag-chasis under the former class of raiyats were not liable to eviction whereas the Bhag-chasis under the latter class of raiyatswere liable to eviction under the impugned Act. This distinction between the two classes of raiyats also appears to be reasonable. The primary object of the impugned Act was to give to the actual tillers of the soil (Bhag-chasis) security from eviction for a limited period. The Legislature however realised that in some circumstances petty raiyats whose total extent of land was less than 33 acres and who due to special reasons had sub-let their holdings to Bhag-chasis may be very severely hit if they were reduced to the position of mere receivers of rent. It was also awarn of the fact that big raiyats who held large , as of land will not be able to cultivate them personally and may have to sub-let them to Bhag-chasis. A line had to be drawn somewhere between those raiyats who in view of large area of land in their possession would ordinarily sub-let them to Bhag-chasis on the one hand and those petty raiyats who would ordinarily cultivate their lands themselves but who, due to special circumstances, sub-let the same to Bhag-chasis. The extent of 33 acres was taken as the deciding factor chiefly because under Section 5(5), Orissa Tenancy Act where the total extent of land in the possession of a person exceeds 33 acres (100 bighas) the presumption is that he is a tenure-holder and not a raiyat. Thus the extent of 33 acres has generally been taken as the dividing line between tenure-holders on the one hand and raiyats on the other and by adopting the same standard in the impugned Act between two classes of raiyats the Legislature was merely adopting a well recognised standard. In the Final Report of the Land Revenue and Land Tenure Committee of Orissa published in July. 1949, the same figure was adopted in fixing the size of the economic holding of a raiyat for the purpose of preventing sub-letting and giving facilities to evict sub-lessees. (See paras (xxii) and (xxiv) of Chap. 1110.) I am therefore unable to find any unreasonableness in the classification of various classes of landllords for the purposes of the impugned Act.
27. The impugned Act recognises that there may be Bhag-chasis under under-raiyats and includes the latter in the definition of 'landlord' in Clause (c) of Section 2. It does not, however, expressly provide for the exemption of an under-raiyat from the operation of Section 3, where the total land in the possession of that under-raiyat is less than 33 acres. It was urged that there was thus an unreasonable discrimination between a raiyat holding less than 33 acres, and an under-raiyat holding less than 33 acres, though the latter required greater protection than the former. This argument is, however, fallacious. Every under-raiyat must, 'ex hypo-thesi', hold lands under a raiyat. Hence if the total extent of the land of his immediate landlord i.e. a raiyat, is below 33 acres the Bhag-chasi of the under-raiyat in respect of that piece of land will be liable to eviction by virtue of Excen. (3) to Clause (g) of Section 2, irrespective of total extent of the land held by the under-raiyat whether under different raiyats or otherwise. Thus the liability to eviction of the Bhag-chasi of an under-raiyat depends not on the. extent of. the land in the possession of the under-raiyat, but on the extent of the land in the possession of his mediate landlord, namely, the raiyat. Hence there is no discrimination between a raiyat and under-raiyat arising out of the extent of the land in their respective possession. The discrimination arises out of their respectivestatus and rights as recognised in the Orissa Tenancy Act and the impugned Act has nothing to do with such discrimination.
28. I would therefore reject the petition with costs. Hearing fee is assessed at three gold mohurs.
29. I agree with the judgment of my learned brother. I would,however, reserve my opinion as regards Section 17,Orissa Tenants Protection. Act, for fuller consideration when any question relating to theactual application of that section, on the factsof a case, arises. For the purposes of the present case, it is enough to say that the validityor invalidity of Section 17 of the Act (which is aseparate and severable provision) in no wayaffects the validity of the rest of the Act.