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Ghamandi and anr. Vs. Parshadi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Constitution
CourtRajasthan High Court
Decided On
Case NumberWrit Appln. Nos. 3 and 68 of 1950
Judge
Reported inAIR1953Raj53
ActsConstitution of India - Articles 14, 19, 19(1)(F) and 31; Rajasthan Tenants Protection Ordinance, 1949 - Sections 7
AppellantGhamandi and anr.
RespondentParshadi and ors.
Appellant Advocate A.C. Chaturvedi, Adv.
Respondent Advocate R.A. Gupta, Govt. Adv.
DispositionPetitions dismissed
Cases ReferredCharlie Middleton v. Texas Power and L. Co.
Excerpt:
.....nicety and perfect equality are not required. it would be bad law if it arbitrarily selects one individual or a class of individuals, one corporation or a class of corporations and visits a penalty upon them, which is not imposed upon other guilty of like delinquency. under exceptional conditions, ordinary laws of the land do not suffice and the legislature is compelled to come out with emergency legislation. counsel for the petitioners that the order of the revenue board was bad by virtue of article 31(1) and article 19(1)(f) of the constitution of india. the orders are, therefore, not bad under the said provisions of the constitution also......that the respondent no. 1 parshadi be reinstated to the land under section 7 of the rajasthan tenants protection ordinance ix of 1949.sugan in his petition states that he was the land-owner of khasra plots no. 690 measuring 2 bighas 7 biswas, no. 691 measuring 2 bighas 10 biswas and 692 measuring 3 bighas 17 bis-was situated in village murki in tehsil bayana, bharatpur district. this land was cultivated by his son shiv charan in st. 2004 and not by mahadeo. the said shiv charan cultivated the said land in st. 2006 and st. 2007 as well. an application was made by mahadeo prasad for his reinstatement under section 7 of the rajasthan tenants' protection ordinance ix of 1949. the sub divisional officer, bayana dismissed the application but the revenue board of rajasthan in revision.....
Judgment:

Sharma, J.

1. These are two petitions under Article 226 of the Constitution of India, one by the landlord Ghamandi against the tenant Parshadi and the other by the landlord Sugan against the tenant Mahadeo. In both these applications, Rajasthan Revenue Board and the Chief Secretary, Rajasthan Government have also been arrayed as respondents. The allegations made in Ghamandi's petition are that he is the landlord of Nos. 57, 60, 61, 72, 73, 141, 138, 149, 151, 157, 219, 227, 266, 292, 289, and 276 measuring approximately 15 Bighas situated in Mauza Chahal, Tehsil Biana, Bharatpur District. One fourth of the said land was ploughed and cultivated by his tenant Kanchan during the year the petition was made but the Rajasthan Revenue Board, vide it's order dated 30th November, 1950 in revision against the order of the Sub-Divisional Officer Bayana ordered that the respondent No. 1 Parshadi be reinstated to the land under section 7 of the Rajasthan Tenants Protection Ordinance IX of 1949.

Sugan in his petition states that he was the land-owner of Khasra plots No. 690 measuring 2 Bighas 7 Biswas, No. 691 measuring 2 bighas 10 biswas and 692 measuring 3 bighas 17 bis-was situated in village Murki in Tehsil Bayana, Bharatpur District. This land was cultivated by his son Shiv Charan in St. 2004 and not by Mahadeo. The said Shiv Charan cultivated the said land in St. 2006 and St. 2007 as well. An application was made by Mahadeo Prasad for his reinstatement under section 7 of the Rajasthan Tenants' Protection Ordinance IX of 1949. The Sub Divisional Officer, Bayana dismissed the application but the Revenue Board of Rajasthan in revision ordered the reinstatement of Mahadeo Prasad.

In both the petitions it is contended that Section 7 of the Rajasthan Tenants' Protection Ordinance (herein after to be referred to as the Protection Ordinance) became void under the Constitution of India as it gave protection only to certain tenants and not to all the tenants. The said provisions are therefore void under Article 14 of the Constitution of India which guaranteed equal protection of laws to all the citizens of India. It is ajso contended that the order of the Revenue Board was also inconsistent with Article 31(1) of the Constitution of India as well as Article 19(2)(f) of the same Constitution. Both the petitioners therefore, have prayed that the orders of the Revenue Board in both the revisions be quashed and section 7 of the Protection Ordinance be declared void and the tenants who were in possession of the lands in dispute at the time when the respon- dents No. 1 in both the cases were ordered to be reinstated, should be declared entitled to possession.

2. On behalf of the respondents, return hasbeen made contending that the orders of theBoard of Revenue in both the cases were perfectly legal, that section 7 of the ProtectionOrdinance was not void under Article 14 of theConstitution of India and that no fundamentalrights of the petitioners were infringed.

3. We have heard the learned Counsel for the petitioners as well as the respondents. Shri A. S. Chaturvedi appearing on behalf of both the petitioners has attached the orders of the Revenue Board mainly on the ground that Section 7 of the Protection Ordinance was void by virtue of Article 14 of the Constitution of India. It was argued that there was no reason why the protection of section 7 of the Protection Ordinance should be given only to those tenants who were in occupation of their holdings on the first day of April, 1948 (hereinafter to be referred to as the prescribed date) and were thereafter ejected therefrom or dispossessed thereof or from any part thereof before the commencement of the Protection Ordinance otherwise than by process of law or after the commencement of the Ordinance in contravention of the provisions thereof.

It was argued that the protection ought to have applied to all the tenants and not only to such tenants who were in possession of the land on the prescribed date. It was also contended that sub-section 5 of section 7 made another discrimination in as much as it provided that nothing in section 7 would apply to a tenant who had voluntarily given up his holding on the expiry of the term of his lease. It was urged that there was no reason why this proviso, should not apply to those tenants also whose term was not fixed by the lease.

4. On behalf of the respondents it was argued that it is not necessary that a particular law enacted by the legislature should apply to all the persons of a certain denomination. A law applying even to one person or one class of persons is constitutional if there is sufficient basis or reason for it. It is only that classifica-tion which is arbitrary and which is made without any basis which is no classification and a proper classification must rest upon some difference and must bear a reasonable and just relations to the things in respect of which it is proposed. It was further argued that presumption is in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The petitioners have not been able to show that there has been a clear transgression of the constitutional principles, and therefore, the contention of the petitioners that section 7 of the Protection Ordinance creates inequality between tenants and tenants is not sound.

It was urged that the Protection Ordinance was, in fact, made for the protection of all the tenants who were in occupation of their holdings on the date when the Ordinance was passed. Section 4 makes a provision that no tenant would be liable to ejectment or dispossession from the whole or part of his holding in any area of Rajasthan on any ground whatsoever. Section 5 provides that all suits, appeals, revisions, references, applications and proceedings for the ejectment of the tenants pending on the date of the commencement of the Ordinance would be temporarily consigned to records. In section 6 it was provided that all decrees or orders for ejectment which at the date of the commencement of the Ordinance had not been fully executed should remain in 'abeyance' and their execution should be stayed so long as the Ordinance remains in force.

The purpose of the ordinance was to put a check on the growing tendency of the land-holders to eject or dispossess tenants from their holdings, which was necessary in the wider national interest of increasing the production of food-grains. Thus, no discrimination was made between the tenants who were in occupation of their holdings at the time of the commencement of the Constitution of India. Section 7, it was argued, gave a summary relief of reinstatement to a certain class of tenants i.e. those who were in occupation of their holdings on the prescribed date. Other tenants could claim their reinstatement under ordinary provisions of law. The reason why this special provision was made for those tenants who were in occupation of their holdings on the prescribed date was that there was a greater tendency to eject tenants since the popular Governments were installed in Rajasthan States after the Merger of various states. Before the prescribed date, the tendency was not so pronounced.

It was, therefore, not necessary to give summary protection of section 7 to those tenants who had been ejected or dispossessed before the prescribed date because in that case all the tenants ejected or dispossessed even long before prescribed date would have claimed reinstatement by summary procedure and the rights of those tenants who had since long been in occupation till the prescribed date would have been adversely affected. Tenants who came into possession of their holdings after the commencement of the Ordinance or a little before it could have their remedy under the ordinary law if they were ejected or dispossessed in contravention of the provisions of the Protection Ordinance. The law has given summary protection to those tenants who were in occupation of their holdings for over a year before the commencement of the Ordinance.

This classification was just and proper as it neither created hardship to the landlords nor the tenants as while giving protection against ejectment and dispossession to all the tenants it gave summary protection to those tenants who had held the land for a substantial period before the commencement of the Ordinance and were the victim of the ejectment or dispossession during the time when inducement to eject or dispossess the tenants was very great on account of the changed conditions. It was further argued that sub-section 5 of section 7 too did not create any unreasonable discrimination as the tenants whose term was fixed by their very lease, could not fairly claim reinstatement after they had voluntarily given up the holding on the expiry of the term of their lease whereas the tenants who held the land without any term i.e. the tenants at will, were at the mercy of their landlords.

5. I have considered the arguments of the learned Counsel for both the parties. Article 14 of the Constitution of India corresponds to the equal protection clause of the XIV amendment of the Constitution of the United States of America. Equal Protection clause of the XIV amendment runs as follows: 'No state shall deny to any person within its jurisdiction equal protection of laws'. Article 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Thus, substantially the equal protection clause of the XIV amendment of the Constitution of the United States of America and Article 14 of the Constitution of India are the same.

Dealing with the equal protection clause, Prof. Willis sums up the law as prevailing in United States in regard to it in these words

'Meaning and effect of the guaranty -- The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed.' The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as special subject for discriminating and hostile legislation. It does not take from states the power to classify either in the adoption of police laws or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts, can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.'

The learned Author proceeds to say that many different classifications of persons have been upheld as constitutional. A law applying to one person or one class of persons, is constitutional if there is sufficient basis or reason for it. Their Lordships of the Supreme Court in the case of -- 'Charanjit Lal v. Union of India', AIR 1951 S C 41 have held that the presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. Following the observations of Prof. Willis quoted above, their Lordships say that a law applying to one person or one class of persons, is constitutional if there is sufficient basis or reason for it. Any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed. In the case before their Lordships an enactment was made by which the Central Government took certain powers to manage and administer ,the Company known as the Sholapur Spinning & Weaving Co. Ltd. it was contended by Charanjeetlal, a share-holder of the said Company that the law was discriminatory as it applied only to that particular company and not to any other Company of the same type. Their Lordships held by majority that it did not matter as there was sufficient basis or reason for applying the law to only that Co. and no other.

His Lordship Mukherjee J., who delivered the principal judgment observed as follows:

'It must be admitted that the guarantee against the denial of equal protection of laws does not mean that identically the same rules of law should be made applicable to all persons within the territory of India in spite of differences of circumstances and conditions. As has been said by the Supreme Court of America 'equal protection of laws is a pledge of the protection of equal laws', and this means 'subjection to equal laws applying alike to all in the same situation,' In other words, there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is the same. I am unable to accept the argument of Mr. Chary that the legislation relating to one individual or one family or one body corporate would 'per se' violate the guarantee of the equal protection rule. There can certainly be a law applying to one person or to one group of persons and it cannot be held to be unconstitutional if it is not discriminatory in its character. It would be bad law if it arbitrarily selects one individual or a class of individuals, one corporation or a class of corporations and visits a penalty upon them, which is not imposed upon other guilty of like delinquency. 'The legislature undoubtedly was a wide field of choice in determining & 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 never be arbitrary. It must 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.'

His Lordship also quoted with approval the following remarks from the judgment in the case of -- 'Charlie Middleton v. Texas Power and L. Co.', (1919) 249 U S 152 at p. 157:

'It must be presumed that a legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.'

Thus the main thing to be seen in the present case is whether the petitioners have been able to discharge the burden which lay upon them of showing that section 7 of the Protection Ordinance is unconstitutional. Obviously the section is not meant for the advanatge or dis-advantage of any single individual. It applies. to all the tenants who were in occupation of their holdings on the prescribed date and were ejected or dispossessed either within three months of the commencement of the Ordinance or within three months of the date of their application for reinstatement whichever is later. There is no discrimination between those tenants who answer to this description. The only argument is as to why the legislature should select only those tenants who have been described in section 7 (1) of the Protection Ordinance for the purposes of summary reinstatement. It is quite clear from the preamble, of the Ordinance that it was promulgated with a view to put a check on the growing tendency of land holders to eject or dispossess the tenants from their holdings and in the wider national interest of increasing the production of food grains.

The petitioners have not contended that there was no growing tendency of land holders to eject or dispossess tenants from their hold- ings when the Ordinance was promulgated. It has, therefore, to be accepted that the statements made in the preamble are correct. If there was a growing tendency of landlords to eject or dispossess the tenants from their holdings, it was necessary for the legislature to> check that tendency, because if the land-holders-were free to eject the tenants in large numbers, there would have been disturbance in the production of food grains. Under exceptional conditions, ordinary laws of the land do not suffice and the legislature is compelled to come out with emergency legislation. There was, therefore, justification for the legislature to produce an enactment under which this growing tendency could be checked. The legislature, consequently gave protection against ejectment and dispossession to all those tenants who were in occupation of their holdings on the date, the ordinance came into force. However, sections 4, 5 and 6 of the Ordinance which gave such protection did not give any relief to those tenants who had already been ejected.

Section 7 gave a remedy to such tenants if they were in possession of their holdings on the prescribed date and were ejected or dis-possessed thereafter. It was vehemently argued why such a sanctity should attach to those tenants only who were in occupation of their holdings on the First April, 1948. The clear person (sic) is that it would have been very hard on the landlords if the legislature had provided that tenants ejected at any time before the Ordinance came into force could be put into possession of their hodings because in that case even tenants ejected or dispossessed long before the Ordinance came into force, would have claimed reinstatement by summary procedure; It would also have been impracticable because different tenants might have been ejected or dispossessed at different times and so unless any date was fixed as the crucial date for giving the tenant a right to summary reinstatement, various tenants holding the land at various times might have claimed summary reinstatement. The law had, therefore, to fix a limit beyond which if dispossessed, a tenant could not claim reinstatement by summary procedure. The law placed this limit as 1st April, 1948.

It is a matter which can be taken judicial notice of that after the beginning of the year 1948, the chain of integration of various states in Rajasthan began. Popular ministries were formed in such integrated unions with a bias in favour of tenants. It is, therefore, not unnatural that during such times, the landlords should be anxious to get rid of their old tenants whose tenure might be made more secure by the legislation which might be sponsored by such ministries. There is, therefore, no reason to disbelieve the statement made in the preamble of the ordinance that there was a growing tendency of land-holders to eject or dispossess tenants, and a legislation was necessary with a view to putting a check on such tendency. As has already been said the petitioners have not contended that this statement is wrong. It was, therefore, quite reasonable for the legislature to give special protection to those tenants who were unduly ejected or dispossessed during such times. The law, therefore, fixed date about which the growing tendency of the land-holders was operating but at which there was no legislation to protect them.

Section 7 of the Ordinance, therefore, gave advantage of summary reinstatement to those tenants who but for the growing tendency might not have been probably ejected or dis-possessed. It has been argued why no such protection was given to tenants who came into occupation of their holdings after 1st April, 1948. The answer is that in case such protection were given, it might have been thought by the Legislature, new tenants admitted during the transitional period would get unfair advantage over old tenants unduly ejected or dispossessed during such period and there might have been conflicting claims for reinstatement by those holding land upto 1st April, 1948, and those admitted thereafter in their place if no date had been fixed. According to the quotation given from -- 'Charlie Middleton's case' cited with approval by the Supreme Court in --'Charanjit Lal's case', it must be presumed that the legislature of Rajasthan understood and correctly appreciated the need of its own people, that the provisions of the Protection Ordinance were directed to problems made manifest by experience and that the discriminations if any, were based upon adequate grounds. The learned Counsel for the petitioners has not been able to show anything which might rebut this presumption. I am, therefore, not prepared to say that the alleged discrimination under section 7 is not based on any adequate grounds.

6. As regards the question why the tenants who had voluntarily surrendered their holdings after the expiry of the term fixed in their leases should be protected whereas other tenants should not be protected, the same arguments which have been given in the case of the provisions giving protection to the tenants in occupation of their holdings on the prescribed date would apply. Moreover in the present two cases, it has been decided by the Rajasthan Revenue Board that it was not proved that the tenants had voluntarily relinquished their holdings. Under these circumstances, it becomes unnecessary to consider whether this exception was constitutional or not, because it is only of academic interest in this case.

7. It was faintly argued by the learned. Counsel for the petitioners that the order of the Revenue Board was bad by virtue of Article 31(1) and Article 19(1)(f) of the Constitution of India. Article 31 has no operation after it has been held that Section 7 of the Protection Ordinance is not void.' The reinstatement of the respondent No. 1 has been ordered under the authority of the said law. As regards Article 19(1)(f) the only restriction that has been placed upon the landlords is that of not ejecting the tenants who were holding land when the Ordinance came into force and of reinstating tenants who were in occupation of their holding on prescribed date and were ejected or dispossessed thereafter provided they made application for reinstatement within three months from their ejectment on dispossession or the commencement of the Ordinance whichever be later. The restriction is reasonable and it is in the interest of general public. The orders are, therefore, not bad under the said provisions of the Constitution also.

8. Both the petitions are dismissed with costs to the contesting respondents. Counsel's fee is assessed at Rs. 50 in each of the two petitions.

Ranawat, J.

9. I agree.


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