27 September 1955
Supreme Court


Case number: Writ Petition (Civil) 621 of 1955






DATE OF JUDGMENT: 27/09/1955


CITATION:  1955 AIR  795            1955 SCR  (2) 531

ACT:   Fundamental Rights, Infringement of-Act settling fair  and equitable rent restricted to a part of the  State-Settlement of  rent  of  different localities  on  different  dates  on decennial average-Possibility of variation in rates of rent- If  amount to denial of equality before  law-Deprivation  of landlord’s  right  to  realise  rents  freely  and   without hindrance,  if invasion of right  to  property-Retrospective enforcement  of  rates of rent, if amounts to  violation  of right to property and acquisition without  compensation-Such power   conferred  on  Settlement  Officer,  if   arbitrary- Constitution of India, Arts. 14, 19(1)(f), 31(2)-Marwar Land Revenue Act (XL of 1949), ss. 81, 82, 83, 84, 85, 86.

HEADNOTE:   The  petitioners, who are jagirdars of Marwar,  sought  to impugn  the constitutional validity of ss. 81 to 86  of  the Marwar  Land  Revenue Act which embody a scheme  for  fixing fair  and equitable rents payable by cultivating tenants  on the  ground  that they infringed  their  fundamental  rights under Arts. 14, 19(1)(f) and 31(2) of the Constitution. Their  contentions were that after the merger of  Marwar  in the State of Rajasthan the Act had become discriminatory  as it  applied only to the jagirdars of Marwar and not  to  the entire  body  of jagirdars of the State of  Rajasthan,  that settlement  of rents made with reference to different  areas on  different  dates  on the basis of  previous  ten  years’ average  of collections might result in different  rates  of rent  and lead to inequality such as is prohibited  by  Art. 14,  that the Act deprived the landlords of their  right  to realise rents from the tenants freely and without  hindrance and invaded their right to hold property guaranteed by  Art. 19(1)(f)  of the Constitution, that the power  conferred  on the  Settlement Officer by s. 86 of the Act to  enforce  the rates of rent retrospectively is an invasion of their  right to  hold  property and amounts to  acquisition  of  property without  compensation  and  that  it  confers  absolute  and uncontrolled discretion on the Settlement Officer and is  an encroachment on the right to hold property.



 Held,  repelling  these  contentions, that  Art.  14  only prohibits  unequal treatment of persons  similarly  situated and  a classification might properly be made on  territorial basis, if that was germane to the purposes of the  enactment and  no  tenancy legislation can be held to  contravene  the article  solely on the ground that it does not apply to  the entire State.  Before the petitioners could succeed it was 532 incumbent on them to show that conditions obtaining in other parts of the State were similar to those in Marwar and  this they had failed to do.   Bowman  v.  Lewis [1879] 101 U.S. 22: 25  Law.   Ed.  989, referred to.  That the provision in the Act for assessment of rents  with reference to a portion of the area to which the Act  applies is not a contravention of Art. 14.  To hold otherwise  would be  to  make  it impossible for any State to  carry  on  its settlement operation.   Biswambhar Singh v. The State of Orissa and others, [1964] S.C.R.  842, and Thakur Amar Singhji v. State of  Rajasthan, [1955] 2 S.C.R. 303, applied.   That the fundamental right to hold property in the case of a, landlord in respect of his tenanted lands is no more than the  right  to receive reasonable rents and  no  legislation which  has  for  its  object  the  settlement  of  fair  and equitable  rents  can  contravene  Art.  19  (1)(f)  of  the Constitution  even  though it may give  such  rents  retros- pective operation.   That  the  provision in s. 86 of the  Act  empowering  the Settlement  Officer to give retrospective operation  to  the rates  of  rent  does  not  contravene  Art.  19(1)(f)  and, therefore, no question as to whether such a provision is not of  a  regulatory character and as such prohibited  by  Art. 19(5) can at all arise.    That  it is well settled that a law which  regulates  the relation  of  a landlord with his tenant is  not  one  which takes property within the meaning of Art. 31(2) even  though it  has  the effect of reducing his  rights.   Consequently, there is no contravention of Art. 31(2) of the Constitution.  Thakur Jagannath Baksh Singh v. United Provinces, [1943]  6 F.L.J. 55: A.I.R. 1943 F.C. 29 and Thakur Jagannath Buksh v. United Provinces, L.R. 73 I.A. 123, relied on. That s. 86 of the Act does not confer an absolute and uncon- trolled discretion on the Settlement Officer and such  power as it gives does not constitute an encroachment on the right to hold property within the meaning of Art. 19(1)(f) of  the Constitution. Thakur Baghubir Singh v. Court of Wards, Ajmer and  another, [1953] S.C.R. 1049, explained and distinguished.

JUDGMENT:   ORIGINAL JURISDICTION: Petitions Nos. 621, 655 and 678  of 1955. Under Article 32 of the Constitution for the en- forcement of fundamental rights. N.C. Chatterjee (S.  K. Kapur and Ganpat Rai, with him)  for the petitioners. 533 M. C. Setalvad, Attorney-General for India (Kan Singh and P. G. Gokhale, with him) for respondent No. 1. K.R.  Chowdhury,  for Goma, Ghisa and Rama,  respondents  in Petition No. 655 and Dhira, respondent in petition No.678. 1955. September 27. The judgment of the Court was  delivered



by VENKATARAMA AYYAR J.-These are applications under article 32 of  the  Constitution  by  certain  jagir  dars  of  Marwar, challenging  the constitutionality of sections 81 to  86  of the  Marwar  Land Revenue Act No. XL  of  1949  (hereinafter referred to as the Act) on the ground that they infringe the fundamental  rights  of the petitioners  under  article  14, article  19(1)  (f) and article 31(2) of  the  Constitution. These  sections provide for fixing fair and  equitable  rent payable  by  the tenants and prescribe the procedure  to  be followed therefor.  Section 81 of the Act provides that when any local area has been brought under settlement  operations by  a notification under section 64, the Settlement  Officer or  an  Assistant  Settlement Officer  shall  inspect  every village  in the local area, divide it into soil-classes  and assessment  circles,  select  rentrates  for  the  area  and publish  them  in  such manner as  may  be  prescribed.   If objections  to  these  proposals are  received,  he  has  to consider  them,  and  submit  his report  to  the  Board  of Revenue.  The Board has the power to sanction the  proposals with or without any modifications, and it has also the power to direct further enquiry into the matters.  With a view  to arriving at fair and equitable rates, the Settlement Officer is  required  under  section  82  to  have  regard  to   the collection  of rent and cesses in the nature of rent  during the ten years preceding the settlement excluding such  years as  the  Government  may, by notification  in  the  Official Gazette, declare to be abnormal the average of the prices of agricultural  produce during the same period, the nature  of the  crops grown and the quantity of the produce  and  their value.  Section 82(2) provides that the rent rates shall not 534 exceed one-third of, the value of the produce of unirrigated lands  and  one-fourth  of  the  value  of  the  produce  of irrigated  lands.  Under section 84, the Settlement  Officer shall   determine  rents  whether  by  way   of   abatement, enhancement  or commutation payable for all holdings in  the occupation  of tenants on the basis of the rates  sanctioned by  the Board of Revenue.  Section 86 enacts that  any  rent fixed  by order of the Settlement Officer shall  be  payable from  the first day of July next following the date of  such order,  "unless  the Settlement Officer thinks fit  for  any reasons to direct that it shall be payable from some earlier date".   Acting under section 81 of the Act, the Settlement Officer formulated  certain  proposals with reference  to  the  rent rates  in  the  villages  comprised in  the  jagirs  of  the petitioners, and they were published in the Gazette on  12th December 1953.  Objections to those rates were filed by  the petitioners on the 12th January, 1954.  On 13th October 1954 the  Additional Settlement Commissioner submitted his  final proposals to the Settlement Officer, who forwarded the  same to the Board of Revenue for sanction.  After making  further enquiry, the Board passed an order on 4-12-1954  determining the  rent rates payable.  Subsequent to this, an  order  was also  passed  under  section  86 of  the  Act  bringing  the sanctioned rate into operation from 1-7-1954.  This order is not  itself the subject of attack in these proceedings,  and it cannot be, seeing that Petition No. 621 of 1954 was filed on  24th  November 1954 before that order  was  passed,  and Petitions  Nos. 655 and 678 of 1954 merely  repeat  verbatim the allegations in Petition No. 621 of 1954.  Before us, the petitioners  conceded  that  they  were  not  impugning  the correctness  of the order passed under section 86 in so  far as it gave operation to the rates of rent from 1st July,  on



its merits, but that they were attacking the section as  bad only  as a step in establishing that the scheme of the  Act, of  which  section  86 is an integral part is,  taken  as  a whole,  an  infringement of their fundamental  rights  under articles 14, 19 and 31(2).  We have now to consider 535 whether sections 81 to 86 of the -Act are bad as  infringing the above provisions of the Constitution.   The contention that sections 81 to 86 of the Act are  void as being repugnant to article 14 is sought to be made out on two  grounds.   It is stated firstly that the  Act  applies’ only  to what was prior to its merger the State  of  Marwar, that the present State of Rajasthan comprises Marwar and  17 other  States which have merged in it, and that as the  Act, as it stands, is directed against the jagirdars in one  area of  the  State  and  not the whole  of  it,  it  has  become discriminatory   and  void.   This  contention  is   clearly untenable.   What  article  14  prohibits  is  the   unequal treatment  of  persons  similarly  situated,  and  therefore before  the  petitioners can claim the  protection  of  that article,  it  is  incumbent on them to  establish  that  the conditions  which  prevail in other areas in  the  State  of Rajasthan are similar to those which obtain in Marwar.   But of  this, there has been neither allegation nor  proof.   On the contrary, it is stated by the respondents in para 10  of their  statement  that the tenants in the jagirs  of  Marwar were  paying much more by way of rent and cesses than  those in the Khalsa area of the State, that with a view to  remove the inequality between the two classes of tenants within the State, a law was passed in 1943 providing for settlement  of rent,  and  that again on 10-1-1947 another law  was  passed abolishing all cesses (lags) and fixing the maximum share of rent payable in kind.  These special features, it is argued, form sufficient justification for a separate legislation for this area, It is also stated that the other States had their own  rent  laws suited to their conditions.   There  are  no materials  on which we could hold that the impugned  Act  is discriminatory  in character, and we cannot strike  it  down merely on the ground that it does not apply to the whole  of the State of Rajasthan.  A  similar  question  arose  for  decision  in  Bowman   v. Lewis(1).  There, some of the areas in the State of Missouri were governed by a judicial procedure diff- (1)  [1879] 101 U.S. 22: 25 Law.  Ed 989. 68 536 erent  from that which prevailed in others.   Repelling  the contention  that  this differentiation  offended  the  equal protection  clauses of the Fourteenth Amendment,  the  Court observed:   "Each State has the right to make political  subdivisions, of  its  territory for municipal purposes, and  to  regulate their  local government.  As respects the administration  of justice,  it may establish one system of courts  for  cities and another for rural districts; one system for one  portion of  its  territory and another system for  another  portion. Convenience,  if  not necessity, often requires this  to  be done,  and it would seriously interfere with the power of  a State  to regulate its internal affairs to deny to  it  this right   If  a  Mexican State should be acquired by  a  treaty  and added to an adjoining State or part of a State in the United States,  and the two should be erected into a new State,  it cannot  be  doubted  that such new  State  might  allow  the Mexican laws and judicature to continue unchanged in the one



portion and the common law and its corresponding  judicature in  the  other portion.  Such an arrangement  would  not  be prohibited in any fair construction of the Fourteenth Amend- ment.   It would not be based on any respect of  persons  or classes, but on municipal considerations alone and a  regard to  the  welfare  of  all  classes  within  the   particular territory or jurisdiction".   This  Court has also repeatedly held  that  classification might  properly  be made on territorial basis  if  that  was germane to the purposes of the enactment.  Having regard  to the  fact that the conditions of tenants vary from  locality to locality, we have no hesitation in holding that a tenancy legislation  restricted  to a portion of a State  cannot  be held on this ground alone to contravene article 14.   The second ground urged in support of the contention  that article  14 has been infringed is that discrimination  -must result from the settlement of rent being taken up only  with reference to portions of the 537 area  to which the Act applies and not to the whole  of  it, because  the  rent rate is to be fixed on the basis  of  the average  of the ten years preceding the settlement;  and  if the proceedings are started for different areas on different dates, that might result in different rates being fixed, and that  would  make for inequality such as  is  prohibited  by article  14.  We are unable to agree with  this,.contention. Settlement operations can be conducted only by a specialised staff   having   technical  knowledge   and   administrative experience, and it might be beyond the capacity of the State to  undertake  them for the whole area at one and  the  same time.  To accede to the contention of the petitioners would, in  effect,  be  to  prevent the  States  from  carrying  on settlement  operations.   It  was  held  by  this  Court  in Biswambhar Singh v. The State of Orissa and other8(1) and in Thakur  Amar  Singhji  v.  State  of  Rajasthan(2)  that   a provision   authorising  the  taking  over  of  estates   on different  dates  was not repugnant to article 14,  and  the principle of those decisions would apply to the present case as well.  The contention that the impugned provisions are in contravention of article 14 must, therefore, be rejected. It  is  then contended that the provisions in  question  are repugnant to article 19(1) (f) of the Constitution,  because they deprive landlords of their right to realise rents  from the  tenants  freely  and  without  hindrance,  and  are  an encroahment on their right to hold property.  The  provision in  section  82  that  the  Settlement  Officer  should,  in determining  the  average collection for  the  previous  ten years,exclude from consideration abnormal years as  notified by the Government was particularly attacked as a..device  to reduce  the rent payable to the landlord and an invasion  of his  rights  to the property.  We are unable to  agree  with this contention.  The fundamental right which a citizen  has to  hold and enjoy property imports only a right to  recover reasonable  rent when the lands are cultivated by a  tenant, and therefore a legislation whose object is to fix fair  and equitable (1)  [1954] S.C.R. 842, 845. (2)  [1955] 2 S.C.R. 303, 538 rent  cannot be said to invade that right.   The  contention that the provision in section 82(1) (a) that abnormal  years as notified in the Gazette should be excluded in determining average collections is calculated to reduce the rent, and is therefore  unreasonable is unfounded, because a  declaration that  a  year is abnormal is made not only  when  there  are



bumper  crops but also when the yield is very low,  and  the provision is intended equally for the benefit of the  tenant and  of the landlord.  A provision of this kind is usual  in all  tenancy legislation, and there is nothing  unreasonable or unfair about it.    It  was next contended-and this was the  contention  most pressed  on us-that section 86 is bad as it confers  on  the Settlement  Officer  a power to bring the  rent  rates  into operation from a date earlier than’ the succeeding year  and even  retrospectively from a date prior to  the  settlement, and that such a power was repugnant to both article 19(1)(f) and  article 31(2).  The argument with reference to  Article 19(1)(f) is that section 86 is an encroachment on the rights of  a person to hold property, and can be valid only  if  it falls  within  article 19(5), that it is only a  law  of  ’a regulatory  character that is protected by article  19  (5), that there could be regulation only with reference to rights to   be  exercised  in  future,.  and  that  a  law   giving retrospective  operation  is  consequently  outside  article 19(5).   This  contention rests on an assumption  for  which there  is  no basis.  The question whether a  law  is  valid under.   Article  19  (5) can arise only  when  there  is  a violation  of the fundamental right declared in  article  19 (1)  (f), and if the right to hold property imports,  as  we have  held it does, only a fight to recover reasonable  rent from cultivating tenants, that right cannot be held to  have been  invaded by a law fixing reasonable rent, even when  it is  retrospective  in  operation.   If  the  rent  fixed  is reasonable  with  reference to a period  subsequent  to  the settlement, it must be reasonable for the period prior to it as well, and if the settlement is not an encroachment on the rights  of  the  holder as regards the  future-and  that  is conceded-it cannot be an encroachment as regards                             539 the  past.   A  consideration, therefore,  of  the  question whether a law under article 19(5) should be regulatory’  and whether a law with retrospective operation could be said  to be regulatory would be wholly irrelevant for the purpose  of the present controversy. The argument in support of the contention that section 86 is repugnant  to  article 31(2) is that to the extent  that  it gives  retrospective operation, it deprives the landlord  of the right to rent which had accrued prior to the settlement, and that is taking property without payment of compensation. But  it  is  well settled that a  law  which  regulates  the relation of landlord with his tenant is not one which  takes property within article 31(2), even though it has the effect of reducing his rights.  In Thakur Jagannath Baksh Singh  v. United Provinces(1), the question arose for decision whether the provisions -of Act XVII of 1939, United Provinces, under which the rent payable to a landlord became diminished  were obnoxious to section 299(2) of the Government of India  Act, 1935.  It was held by the Federal Court that they were  not, and in affirming this decision on appeal, the Privy  Council in  Thakur  Jagannath  Baksh Singh  v.  United  Provinces(2) observed:   "The appellant relies on certain express provisions of the Government  of India Act.  Thus he relies on section 299  of the Act, which provides that no person, shall be deprived of his property in British India save by authority of law,  and that neither the Federal nor a Provincial Legislature  shall have  power  to  make any  law  authorising  the  compulsory acquisition  of ’land for public purposes save on the  basis of  providing for the payment of compensation.  But  in  the present   case   there  is  no  question   of   confiscatory



legislation.  To  regulate  the relations  of  landlord  and tenant  and thereby diminish rights, hitherto  exercised  by the landlord in connection with his land, is different  from compulsory acquisition of the land".   It was finally urged that section 86 in so far as it (1)  [1948] 6 F.L..J. 55; A.I.R. 1948 F.C. 29. (2)  [1946] L.R. 73 I.A. 123. 540 conferred  authority  on  the  Settlement  Officer  to  give retrospective  operation to the rent rates was bad,  because the exercise of that authority was left to his arbitrary and uncontrolled discretion, that the Act laid down no rules and prescribed  no conditions under which the discretion had  to be  exercised, and that the power conferred in  those  terms must be held to be unconstitutional.  The decision in Thakur Raghubir  Singh v. Court of Wards, Ajmer and another(1)  was relied  on,  in  support of  this  contention.   There,  the question was as to the validity of a power conferred on  the Court of Wards to take over the management of an estate  "if a  landlord  habitually infringes the right of  a.  tenant". Under the Act, the decision whether the condition  aforesaid was satisfied depended on the subjective satisfaction of the Chief  Commissioner., and that -was final and not liable  to be  questioned  in civil courts.  It was held that  a  power which  could be exercised at the absolute discretion of  the authority was an encroachment on the rights of a citizen  to hold  property under article 19(1)(f), and that it  was  not saved  by article 19(5).  But, in the present case,  section 86  of  the  Act expressly lays down that  if  a  Settlement Officer  decides to bring rates into operation from  a  date earlier  than  the  following 1st of July, it  must  be  for reasons.   There is no force in the contention that  section 86 does not lay down under what circumstances such an  order could  be  passed,  because the very  nature  of  the  thing requires  that  a  large discretion should be  left  to  the authority.   Discretion  which is wide  is  not  necessarily arbitrary.   It was said that under section 233 of  the  Act the  civil  courts  are debarred  from  enquiring  into  the reasonableness  of  the order; but that is  because  matters concerning  revenue and settlement are within the  exclusive jurisdiction of revenue courts, and under section 62 of  the Act,  the Board of Revenue has revisional jurisdiction  over all  orders passed in connection with settlement.  We  think that the power conferred on the Settlement Officer to fix an earlier  date  for  giving operation to  the  rent  rate  is reasonable and valid, (1)  [1953] S.C.R. 1049. 541 and that it invades no fundamental rights of the landlord. For  the reasons given above, we must hold that  the  scheme embodied in sections 81 to 86 of the Act does not transgress any of the Constitutional limitations, and is valid. In  the  result,  the petitions are  dismissed  but  in  the circumstances, without costs.