Dave, C. J.
1. This is an application under Article 226 of the Constitution of India by Pandit Triveni, Shyam Sharma and is directed against the decision of the learned Members of the Board of Revenue for Rajasthan dated the 13th June, 1961.
2. The facts giving rise to it are that the petitioner and one Gyarsia jointly filed a suit against Mangia and four others, for possession of Khasra No. 538 situated in village Thundi, tehsil Dausa. It was averred that plaintiff No. 2 Gyarsia, in that case, was a Khatedar tenant of the said Khasra No. 538 which was a grove-land, having about forty mango trees and that he had transferred his Khatedari rights by sale to petitioner Triveni Shyam Sharma by a registered. sale-deed dated 31st December, 1955. It was further stated that the vendor had delivered possession of the grove-land to the petitioner, that the defendants had without any right wrongfully dispossessed the petitioner from the said property and so, it was prayed that the possession of the property should be restored to him. The defendants contested the suit. One of the grounds raised by them before the Assistant Collector, Dausa, who tried the suit, was that Gyarsia was a member of a Scheduled Caste and that he could not transfer his Khatedari rights in favour of the petitioner since the latter was not a member of a Scheduled Caste.
Reliance was placed on behalf of the defendants on the proviso to Section 42 of the Rajasthan Tenancy Act No. 3 of 1955, which was added by the Rajasthan Tenancy (Second Amendment) Act, 1956. It was urged on behalf of the petitioner that the said proviso could not affect the transaction, which has taken place on 31st December, 1955 retrospectively but his objection was repelled by the Assistant Collector and it was observed that the Legislature had enacted it so as to have respective operation. It was, therefore, held that) petitioner Triveni Shyam Sharma had no right to bring the suit and Issue No. 5, which related ten this question, was decided against him. The Assistant Collector did not decide the dispute between Gyarsia and the defendants and, therefore, the suit continued between' them. Aggrieved by the said decision dated the 30th January, 1960, the petitioner filed an appeal In, the Court of Additional Commissioner, Jaipur. In the appellate court, it was urged on behalf of the petitioner that the defendants were rank-trespassers and were not entitled to question the validity of the transaction. The validity of the transaction could only be questioned either by the transferor or by the Government. It was next urged that the proviso to Section 42 which was added; by the Rajasthan Tenancy (Second Amendment) Act, 1956, could not come into play and affect( the transaction which had taken place before the law was changed. The appellate court did not express its opinion about the first contention.
Regarding the second contention, it relied upon Kishanlal v. Chhogala, 1959 R R D 155 and held that the proviso to Section 42 could not affect the transaction retrospectively. It, therefore, allowed the appeal, quashed the order of the Assistant Collector and remanded the case with the direction that he should proceed with it on merits. Thereafter the defendants, In the said case, filed a revision application against the decision of the Additional Commissioner dated 10th, August, 1960. It was held by the learned Members of the Board that the said proviso to Section 42 was provided by the Legislature to have retrospective effect. They, therefore, allowed the revision application, set aside the order of the Additional Commissioner and restored that of the Assistant Collector. It is this order which is sought to be impugned by the petitioner.
3. Before we proceed to examine the arguments advanced in this Court by learned counsel, on both the sides, it would be proper to narrate here the relevant changes made in the Rajasthan Tenancy Act No. 3 of 1955 which will hereinafter be referred as the 'Act'. This Act was brought! into force with effect from 15th October, 1955. Sections 41 and 42, as they stood at that time, were as follows:--
Transferability of Khatedar's interest--The; interest of a Khatedar tenant shall be transferable, otherwise than by way of sub-lease, subject to the conditions specified in Sections 42 and 43. Section 42.
Sale or gift--Except with the general on special permission of the State Government, no Khatedar tenant shall have the right to transfer by sale or a gift his interest in the whole or a part) of his holding to any person who at the date of such transfer is already in possession of land which, together with the land so transferred will exceed 90 acres of unirrigated or 30 acres of irrigated land. Explanation.--If such land is partly irrigated and partly unirrigated, one acreof irrigated land shall for calculating the area of land for the purposes of this section, be deemed to be equivalent to three acres ofunirrigated land.'
It would appear from the perusal of Section 41 that the interest of a Khatedar tenant was made transferable subject to the conditions specified in Sections 42 and 43. Section 42 imposed certain, restrictions on the sale or gift of the Khatedari rights. It was provided that no Khatedar tenant shall have the right to transfer by sale or gift his interest in the whole or a part of his holding to any person who at the date of such transfer was already in possession of the land which together with the land so transferred would exceed 90 acres if it was unirrigated land, or 30 acres, if it was irrigated. The Explanation added to this section made it clear as to how calculation was to be made if the land was partly irrigated or partly unirrigated. We have not reproduced here Section 43, since it is not relevant for the purposes of this case.
4. Section 42 was then amended by the Rajasthan Tenancy (Second Amendment) Act No. 28 of 1956 which came into force on 22nd September, 1956. This will hereinafter be referred as the 'Second Act'. Section 4 of the Second Act ran as follows:--
Section 4 -
To Section 42 of the principal Act, the following proviso shall be added before the Explanation and shall be deemed always to have been so added, namely,-- 'Provided that no Khatedar tenant being a member of a scheduled caste or a scheduled tribe shall so transfer his interest in the whole or a part of his, holding to any person who is not a member of a scheduled caste or a scheduled tribe.'
5. It is obvious from the language of theproviso, which was added to Section 42, that afterthe amendment, a Khatedar tenant, who,was a member of a scheduled caste or a scheduled tribe was restrained from transferring his interest in the whole or any part of hisholding to any person who was not a memberof a scheduled caste or a scheduled tribe. It appearsthat this restriction was imposed for protecting theinterests of the Khatedar tenants who were members of a scheduled caste of a scheduled tribe.
6. It is contended by learned counsel for the petitioner that although the words 'shall be deemed always to have been so added' used by the Legislature in Section 4 of the second Act indicated that the proviso was meant to operate retrospectively, the deeming clause was violative of Article 19(1) of the Constitution of India, inasmuch as, it divested those persons of their rights in the property which were obtained by them by sale or gift prior to the date on which the second Act came into force. It is further strenuously contended that the petitioner had purchased the Khatedari rights from Gyarsia on 31st December, 1955 by a registered sale-deed, that after the said transaction he was holding the property in his own right and merely by introducing the deeming clause, the Legislature could not deprive him of his property without providing for any compensation. It is urged that such a proviso could not be justified even by Clause (5) of Article 19 of the Constitution of India.
7. In reply, it is urged by learned counsel for respondents Nos. 4 to 8 that the restriction, which was imposed by the second Act, was a reasonable restriction within the meaning of Clause (5) of Article 19 of the Constitution. It is further urged that Section 42 has been further amended by the Rajasthan Tenancy (Amendment) Act No. 12 of 1964, that the last amended Act is now protected by the Constitution (Seventeenth Amendment) Act, 1964 and, therefore, there is no force left in the petitioner's contention.
8. Before expressing any opinion regarding the said arguments it may be observed that the Assistant Collector ought not to have decided Issue No. 5 on a hypothetical basis. It should have been decided properly along with other issues, The question of examining the rights of the petitioner could arise only if we were to come to the conclusion that Gyarsia had Khatedari rights in the disputed land and he was entitled to eject the defendants. If the court were to come to the conclusion that the defendants were in possession of the land in their own right and they could not be ejected by Gyarsia, the necessity of examining the validity of the transfer in favour of petitioner Triveni Shyam Sharma would not have arisen. It is on account of the trial court's hasty decision on Issue No. 5 that the suit has remained pending jn the Court of Assistant Collector for such a long time. Since the Revenue Courts have not yet decided the question whether Gyarsia had Khatedari rights in the property, we have to decide the present writ application on the assumption that the Khatedari rights vested in him and that he had transferred them to the petitioner by a registered sale-deed dated 31st December, 1955.
9. Now, if Gyarsia had Khatedari rights in the disputed land and if he had transferred them in favour of the petitioner on 31st December, 1955 by a registered sale deed, it cannot be gainsaid that the transfer was valid on the date it was effected, since there was no legal restriction imposed upon Gyarsia against the transfer of his rights at the said date. The correctness of this position is conceded even by learned counsel for non-petitioners Nos. 4 to 8.
10. The main question for determination is whether the sale of the proprietary right made by Gyarsia in favour of the petitioner became invalid on account of the subsequent legislation, namely, the addition of the proviso to Section 42 by the Second Amendment Act. A perusal of the language of the proviso which was added to Section 42, would show that if it is read without the context of the deeming clause, it cannot be said that it was to be applied retrospectively. The difficulty was created only because of the words 'shall, be deemed always to have been so added' inserted in Section 4 of the second Act while introducing the proviso.
11. We have given our anxious consideration to the validity of the deeming clause and we are of opinion that it was undoubtedly violative of the provisions of Article 19(1) of the Constitution of India. The effect of the deeming clause wasthat the proviso to Section 42 should be read as ifit appeared in the said section on 15th October,1955 when the principal Act was brought intoforce. Its effect would be to invalidate the transactions which had taken place between 15th October, 1955 and 22nd September, 1956. Article19(1)(f) of the Constitution guarantees to allthe citizens of India a fundamental right to acquire, hold and dispose of property.
It was held by this Court in Jassuram v. State of Rajasthan, AIR 1963 Raj 72, that the bundle of rights which a Khatedar tenant has under the Rajasthan Tenancy Act, is a collection of all the essential attributes which constitute the concept of property. In the Commissioner Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar, AIR 1954 SC 282, it was held| by their Lordships of the Supreme Court that
'the word 'property' should be given a liberal and wide connotation and should be extended to all well-recognised types of interest which have the insignia or characteristics of proprietary rights.'
It was this view which was followed in the said case. It is, therefore, plain that prior to the amendment of Section 42 by the second Act Gyarsia had a fundamental right to dispose of his rights in the property and the petitioner had an equally valuable fundamental right to acquire and thereafter to hold that property as his own. Once the proprietary right in the property was vested in the petitioner, he could not be deprived of his property, save by the authority of law.
12. In K. K. Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080 their Lordships of the Supreme Court referred with approval the following passage from Willoughby's Constitutional Law:--
'As between individuals, no necessity however great, no exigency, however-imminent, no improvement, however valuable, no refusal, however un-neighbourly, no obstinacy, however unreasonable, no offers of compensation, however extravagant, can compel or require any man to part with an inch of his estate.'
Their Lordships further quoted with approval the following observations of the Supreme Court of the United States of America in Henry Webster v. Peter Cooper, (1852) 14 Law Ed. 510 at p. 517:--
'The result of the decision is, that the constitution of the State has secured to every citizen the right of acquiring, possessing and enjoying property and that, by the true intent and meaning of this section property cannot, by a mere Act of the Legislature, be taken from one man and vested in another directly; nor can it, by retrospective operation of law, be indirectly transferred from one to another, or be subjected to the government of principles in a court of justice, which must necessarily produce that effect.'
13. We have now to examine in the light of these observations whether the Legislature could by merely introducing the deeming clause while inserting proviso to Section 42 of the principal Act, deprive the petitioner of his vested rights without providing any compensation therefor.
14. Learned counsel for respondents Nos. 4 to 8 has tried to justify the deeming clause by referring to Clause (5) of Article 19 of the Constitution of India, which runs as follows :
'Clause (5) of Article 19- Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law is so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.'
It is contended by him that the proviso was added for the protection of the interests of the members of the Scheduled tribe and, therefore, it was saved by this Clause. In our opinion, this contention is not tenable because even, according to Clause (5), reasonable restrictions on the fundamental rights embodied in Article 19(1)(f) can be imposed only for the protection of the interests of the members of the scheduled tribe. The word 'interests' appearing in the said Clause refers to subsisting interests and not to those interests which cease to exist even before the law is enacted. The term 'protection' is also suggestive of subsisting interests. If the interests already cease to exist, there would remain nothing which may be protected by law. In the case of interests which cease to exist, it would be revival of the interests and not the protection thereof. In a case like the present one, where Gyarsia had already transferred his interests before the second Act came into force, the deeming clause, if held to be valid, would not protect the vendor, but would tend to deprive the vendee, i. e., the petitioner of the rights and interests which had already vested in him. The deeming clause would not, therefore, be saved by Clause (5) and it would be violative of Article 19(1)(f) of the Constitution of India.
15. In this view of the matter there seems to be no force in the contention raised by learned counsel for the contending respondents, because Gyarsia had parted with his Khatedari rights in the property long before the proviso was added to Section 42. The insertion of the proviso could not revive his interest merely because the deeming clause rendered its operation retrospective. His interest had already ceased to exist and there remained nothing to be protected by law. We, therefore, hold that the deeming clause was violative of Article 19 in so far as it resulted in divesting the petitioner in whom the vendor's rights and interests had vested before the second amendment.
16. We have now to examine if the petitioner's rights are hit by the third amendment.
17. It may be noted here that the Rajasthan Tenancy (Amendment) Act No. 12 of 1964, which came into force on 1st May, 1964 introduced the following changes in Section 42 by Section 3 thereof. Section 3 runs as follows:
'Section 3--Substitution of new section for Section 42, Rajasthan Act 3 of 1955--For Section 42 of the principal Act, the following section shall be substituted, namely:--
42. General restrictions on sale, gift and bequest--The sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void, if-
(a) it is not of a survey number except when the area of the survey number so sold, gifted or bequeathed is in excess of the minimum area prescribed for the purpose of Sub-section (1) of Section 53, in which case also the area not transferred shall not be a fragment :
Provided that this restriction shall not apply if the area so transferred becomes merged into a contiguous survey number :
Provided further that this restriction shall not apply if the sale, gift or bequest is of the entire interest of a tenant in the survey number;
(b) such sale gift or bequest is by a member of a Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe;
(c) made by a person enjoying khatedari rights since before the commencement of the Act in the project areas referred to in the proviso to Sub-section (1) of Section 15 or in the Rajasthan Canal area mentioned in Section 15A, and any transfer by sale or gift made by any such person after the commencement of the Rajasthan Tenancy (Amendment) Ordinance No. 2 of 1960, shall be null and void.'
18. Learned counsel for the respondents has urged that according to Clause (b) of the amended section, the sale in favour of the petitioner was void since he was not a member of a Scheduled Caste or a Scheduled Tribe. It would suffice to say that while substituting Section 42, the Legislature took good care in not making the change to operate retrospectively. The plain reading of Section 3 would show that the new Section 42 was substituted in place of the old one with effect from the date this amended Act came into force namely, 1st May, 1964. This Act also does not seek to validate the deeming clause appearing in Section 4 of the second Act, which was invalid from the very date it was introduced, as held above. The Constitution (Seventeenth Amendment) Act, 1964, protects the Rajasthan Tenancy Act, 1955 as it stood on the date the said amendment of the Constitution of India, came into force.
19. The result is that the decision of the learned Members of the Revenue Board, dated the 13th June, 1961 and that of the Assistant Collector dated the 30th January, 1960, cannot be upheld.
20. We accordingly allow the writ application and set aside the said impugned decisions of the Assistant Collector, Dausa and the Revenue Board on Issue No. 5. In the circumstances of the case, we leave the parties to bear their own costs in this Court.