SHAZAD KHAN Vs. JHALLU SINGH AND OTHERS
LAWS(MPH)-1955-4-6
HIGH COURT OF MADHYA PRADESH
Decided on April 08,1955

SHAZAD KHAN Appellant
VERSUS
Jhallu Singh And Others Respondents

JUDGEMENT

Dixit, J. - (1.) IN this case, counsel for the petitioner moves for an order of prohibition restraining the Tehsildar of Bhind from continuing with proceedings under S. 38(b) of the Madhya Bharat Zamindari Abolition Act, 1951 for the conferment of the status of pacca tenants on the non -applicants Nos. 1 and 2. Before the enactment of the Madhya Bharat Zamindari Abolition Act, 1951 the petitioner was a Maurusi tenant of certain lands mentioned in the petition and had sublet the holding to the non -applicants Nos. 1 and 2. On the coming into force of the Act, the Maurusi tenancy rights which the petitioner held from the proprietor came to an end under S. 4(1)(b) of the Act and under S. 41 of the Act the petitioner was deemed to be a tenant of the Government from the date of the vesting of proprietary rights in the State. Clauses (1) and (2) of S. 38 provide that: (1) Subject to the provisions of this section every tenant of a proprietor shall be deemed to be a pacca tenant of the land comprised in his holding from the date of vesting. (2) Every sub -tenant or tenant of a sub -tenant who deposits with the Tehsildar within the period specified in sub -sections (3) and (4) the following amount to be paid to the proprietor or tenant or sub -tenant, as the case may be, shall be deemed to be a pacca tenant of the land comprised in his holding. Till amount is deposited, his former status shall continue. The right of being a pacca tenant by depositing money shall firstly be that of the tenant of the sub -tenant, if any, and if he fails to deposit money shall be that of the subtenant.
(2.) CLAUSE 2 then specifies the amounts which the different types of sub -tenants are required to pay for the acquisition of pacca tenancy rights, and contains a proviso that a sub -tenant or tenant of a sub -tenant shall remain a sub -tenant or tenant of a sub -tenant as before in case of disability mentioned in S. 74 of Madhya Bharat Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Sam -vat 2007. He shall have no right to become a pacca tenant by depositing the amount under this sub -section. Taking advantage of the provisions of S. 38(2), the non -applicants Jhallu Singh and Jagannath commenced proceedings before the Tehsildar for the conferment of pacca tenancy rights on the payment of necessary amount. The petitioner contends that S. 38(2) is invalid and that, therefore, the Tehsildar has no jurisdiction to take cognizance of any proceedings under that section. In - - 'Ram Dubey v. Govt. of Madhya Bharat',, AIR 1952 MP 57 (A) a Full Bench of this Court held that the Madhya Bharat Zamindari Abolition Act was a good and valid law except for S. 15 of the Act which in so far as it purported to exclude the jurisdiction of the High Court under Arts. 226 and 227 of the Constitution was ultra vires the Constitution of India. Mr. Anand Bihari Misra learned counsel for the petitioner submitted that in 'Ram Dubey's case (A)' the question of interference of tenants rights did not arise for consideration and the question of the validity of S. 38(2) of the Act was not specifically decided and that being so, it was open to him to show that the said provision was invalid. He proceeded to argue that S. 38(2) violated the petitioner's right under Art. 19(l)(f) to hold and dispose of land of which he was the tenant and that it also infringed Art. 31(2) of the Constitution in that there was no public purpose behind the acquisition of the petitioner's rights in the land. Leaving aside the point whether the question of the validity of S. 38(2) is concluded by the decision in 'Ram Dubey's case (A)', I think on merits this petition must fail. It will be observed that the petitioner's rights as a maurusi tenant from the proprietor terminated under S. 4(l)(b) of the Act, and thereafter by virtue of S. 41 of the Act he was deemed to be a tenant of the Government. The petitioner did not have the status of a pacca tenant before the Act came into force. He got that status under S. 38(1) only when the Act came into force and subject to the provisions of S. 38. It cannot, therefore, be maintained that S. 38(2) affects or takes away any pre -existing rights of pacca tenancy of the petitioner. Even if it is taken that the combined effect of Ss. 38(1) and 41 is to preserve the tenancy rights which the petitioner possessed before the Act came into force, it is clear to me that clause (2) of S. 38 does not involve any abridgment of the right guaranteed by Art. 19(1)(f). What S. 38(2) aims at is to take away the rights of a tenant who has sublet his holding and if a man is deprived of his property no question of his holding and disposing of that property can possibly arise under Art. 19 (1) (f). This is clear from the decisions of the Supreme Court in - - 'State of West Bengal v. Subodh Gopal Bose', : AIR 1954 SC 92 (B) and - - 'Dwarkadas v. Sholapur Spinning and Weaving Co. Ltd.', : AIR 1954 SC 119 (C). Very recently the Supreme Court has again pointed out in - - 'State of Bombay v. Bhanji', (S) : AIR 1955 SC 41 (D) that: Article 19(1)(f) read with Clause (5) postulates the existence of property which can be enjoyed and over which rights can be exercised because otherwise the reasonable restrictions contemplated by cl. (5) could not be brought into play. If there is no property which can be acquired, held or disposed of, no restriction can be placed on the exercise of the right to acquire, hold and dispose of it, and as Cl. (5) contemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the article postulates the existence of property over which these rights can be exercised. In our opinion, this was decided in principle in - - 'Gopalan v, State of Madras',, AIR 4950 SC 27 (E), where it was held that the freedoms relating to the person of a citizen guaranteed by Art. 19 assume the existence of a free citizen and can no longer be enjoyed if a citizen is deprived of his liberty by the law of preventive or punitive detention. In the same way, when there is a substantially total deprivation of property which is already held and enjoyed, one must turn to Art. 31 to see how far that is justified. The contention of the petitioner that S. 38(2) infringes his rights under Art. 19(1)(f) must, therefore be rejected.
(3.) AS to the contention that there was no public purpose behind the provision, in view of the authoritative pronouncements of the Supreme Cot in - - 'Raja Jagaveera Rama v. State of Madras',, AIR 1954 SC 257 (F) and - - 'Gajpati Narayan Deo v. State of Orissa', : AIR 1953 SC 375 (G), that argument is not, now, open to the petitioner. In both these cases, it has been ruled that the existence of a public purpose is not a justiciable issue in case of an enactment which having fulfilled the requirements of cl. 4 of Art. 31 of the Constitution enjoys the protection afforded by it. The Madhya Bharat Zamindari Abolition Act is an Act which has fulfilled the requirements of cl. 4 of Article 31, I must, however, point out that the suggestion of the learned counsel for the petitioner that the acquisition contemplated by S. 38(2) is for the benefit of the private interest of sub -tenant is altogether untenable. It was made very clear in 'Ram Dubey's case (A)' that the object of the Zamindari Abolition Act is to eliminate the interest of intermediaries like Zamindars and tenants who have sublet the land and to recognize the rights of the actual tillers of the soil and to bring about a reform in the land tenure system for the benefit of the community. An acquisition for carrying out a scheme of land reforms is certainly an acquisition for a public purpose and the fact that the scheme may ultimately benefit individual sub -tenants would not make the acquisition any the less an acquisition for a public purpose. Counsel for the petitioner cited to us the cases - - 'Bankey Singh v. Jhingan Singh', : AIR 1952 Pat 166 (H); - - 'Pirthi Singh v. State of Pepsu',, AIR 1953 Pep 161 (I); - - 'Santhana Krishna Odayar v. Vaithilingam', : AIR 1954 Mad 51 (J); - - 'Govinda v. Board of Revenue, Rajasthan', : AIR 1954 Raj 141 (K). These cases do not seem to me to be in point here. In the Rajasthan case no question of either Art. 19(1)(f) or Art. 31 (2) arose. The Patna, Madras and Pepsu cases dealt with Art. 19(1)(f) and not with Art. 31(2). In regard to Pepsu case it must be observed that the learned Judges of the Pepsu High Court held that the impugned legislation before them was not a law of acquisition and did not, therefore, come within the ambit of Art. 31(2). They, however, proceeded to consider the question of public purpose on the assumption that the law was a law of acquisition. They did not consider the point whether the existence of a public purpose was a justiciable issue. That question as I have said above is now concluded by the decisions of the Supreme Court referred to above.;


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