Imam, J.:— This is Civil Reference No. 1 of 1951 made by the learned Subordinate Judge of Palamau under Section 113 of the CPC.
2. There is Title Suit No. 6 of 1951 pending in the said Court. This title suit was filed by Thakurai Jugeshwar Prasad Singh, Malik Khorposhdar of Chainpur estate, against Bircha Chamar and others, some tenants of village Nimia. The suit was filed for a declaration that the trees standing on the holdings of these tenants are the property of the plaintiff in spite of the provisions of Section 9 of the of Bihar Act, 25 of 1947 and Bihar Act 11 of 1950. It is alleged on behalf of the Chainpur estate that these legislation are ultra vires and void.
3. The suit was contested by the defendants, and issue No. 1 framed in the suit is as follows:
“Whether Section 9 of the of Bihar Act 25 of 1947 and the entire Bihar Act 11 of 1950 are ultra vires and void?”
4. The learned Subordinate Judge is of the opinion that the said legislation are invalid and inoperative, and has made this reference seeking the opinion of this Court whether the said legislation are invalid and inoperative.
5. It is admitted that the trees standing on the holdings of the tenants are recorded in the survey record-of-rights as being in possession of the proprietor. The learned Subordinate Judge took, by way of an illustration, the entries of khatas 1 and 32 in the khatian, Ext. 1. Khata 1 is recorded in the name of the ancestors of Bircha. Chamar, defendant 1, and in the remarks column, it is noted as follows: “Paras 50 timber in possession of the malik and lac in possession of Nand Kumar Ram.”
6. Khata No. 32 belonging to Ramnandan Dusadh, defendant 39, is similarly recorded about seven Paras trees. It appears that at the time of the survey the encumbered estate on behalf of the plaintiff was the malik and that Nand Kumar Ram was the malik's thicadar for lac trees standing on the holdings of the tenants. On the basis of the entries referred to, the malik claimed the right to rear lac and the right to the timber of the trees on the holdings of the tenants before the legislation stated above.
7. It would be best, in my opinion, to state what Section 9 of the of Bihar Act 25 of 1947 is. It is as follows:
“9. After S. 21 of the said Act, the following section shall be inserted, namely:
‘21A. Notwithstanding anything contained in S. 21, when a rayat has a right of occupancy in respect of any land.
(a) if the rent of such land is paid in cash, or if such land is a rent-free holding or a part of such holding, the rayat may—
(i) plant trees and bamboos on such land and cut, cut down and appropriate the same,
(ii) cut, cut down and appropriate any trees or bamboos standing on such land,
(iii) appropriate the flowers, fruits and other products of any trees or bamboos standing on such land,
(iv) rear lac and cocoons on trees standing on such land and appropriate the same:
Provided that if there is a specific entry in the record-of-rights in respect of any tree or bamboo which was standing on any such land on the date of the commencement of the Chota Nagpur Tenancy (Amendment) Act, 1947, the right of the rayat in such tree or bamboo specified in sub-cls. (ii), (iii) and (iv) shall be exercised in accordance with, and subject to, any such entry.”
8. As a result of this legislation, the tenants were given the right to cut down and appropriate trees and bamboos standing on their holdings as well as to rear lac and cocoons on such trees and to appropriate them. They were also given the right to plant trees and bamboos and appropriate the flowers, fruits and other products. As a result of the proviso, the rights of the proprietors to timber and lac of the existing trees on the tenants' holdings were secured for the landlords if these rights were entered in the survey record-of-rights.
9. After this, another Act was passed, namely, Act 11 of 1950, and the proviso in the said section, namely, 21A, was amended and the following proviso was substituted in its place:
“Provided that if there is any specific entry in the latest record-of-rights regarding any tree or bamboo which was standing on any such land before the date of the final publication of such record of rights to the effect that any right in such tree or bamboo belongs to any person, other than the proprietor of the estate comprising such land or the tenure-holder of such land, the right of the rayat in such tree or bamboo specified in sub-cls. (ii), (iii) and (iv) shall be exercised in accordance with, and subject to, any such entry”.
10. As a result of this amendment, the landlord's rights to timber and lac of the trees on the holdings of tenants were completely taken away so far as the proprietor of such land or the tenure holder of such land was concerned.
11. The learned Subordinate Judge is of the opinion that since the proprietor's rights to the trees were taken away as a result of the legislation, namely, Act 11 of 1950, without giving compensation to the landlord, the legislation was ultra vires having regard to Section 299 of the Government of India Act, 1935, as well as Article 19(1)(f) of the Constitution. It is necessary at this stage to refer to the relevant portion of Section 299 of the Government of India Act. It is as follows:
“299. (1) No person shall be deprived of his property in British India save by authority of law.
(2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking, unless the law provides for the bailment of compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined”.
12. It is also necessary to refer to the Provincial Legislative List, what is known as List II in 7th Schedule of the Government of India Act, 1935. The relevant portion of that List is item 21. It is as follows:
“Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonization; Courts of Wards; encumbered and attached estates; treasure trove”.
13. It is thus clear that under the Government of India Act, 1935, List II in other words, the Provincial Legislative List, item 21, the Legislatures of the Provinces had the authority to legislate matters connected with the relation of landlord and tenant as well as with the rights in or over land, or legislation concerning land apart from other matters.
14. It cannnot be denied that the impugned Acts are concerned with land as well as with rights in and over land including the relation of landlord and tenant. Prima facie, therefore, the Provincial Legislature under the Act had the power to legislate on these matters. Under sub-cl. (1) of S. 299, it is provided that no person shall be deprived of his property in British India save by authority of law. It is thus clear that if a landlord has been deprived of any property in Bihar, it is so by authority of law.
15. The second sub-clause of that section provides that neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land,……… unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner, in which it is to be determined.
16. The question, therefore, that arises for consideration is whether the impugned Acts empower the Provincial Government to make compulsory acquisition of any land, etc., without compensation for the property acquired. Utmost that can be said, in my opinion, is that Bihar Act 11 of 1950 as well as Section 9 of the of Bihar Act 25 of 1947 curtailed some of the landlord's rights to the trees.
17. In my opinion, the curtailment of the rights of the landlord cannot be considered to be the same thing as compulsory acquisition of any land, and, therefore, it cannot be said that there was any compulsory acquisition without compensation and by reason of which the provisions of Section 299 of the Government of India Act, 1935, were violated.
18. So far as Article 19(1)(f) of the Constitution is concerned, it can have no bearing on the present case, because when the impugned Acts were passed, there were no fundamental rights so far as the people of India were concerned.
19. Mr. Saran appearing in support of the reference has submitted that as the trees belonged to the landlords and that they have been deprived of their rights to the trees, there has been compulsory acquisition of these trees without compensation, and, therefore, the provisions of Section 299 of the Government of India Act, 1935, have been violated, and this Court should give its opinion that the said impugned Acts are ultra vires. He has referred to us the following cases: ‘Charanjit Lal v. Union of India’, AIR 1951 SC 41 (A), ‘Dwarka Das Srinivas v. Sholapur Spinning and Weaving Co. Ltd.’, AIR 1954 SC 119 (B) and ‘Maharani Gurucharan Kaur v. Province of Madras’, AIR 1944 FC 41 (C)’.
20. The case reported in ‘AIR 1951 SC 41 (A)’, has no bearing on the facts of the present case. That was a case concerning a Sholapur Spinning and Weaving Company. The relevant portion is para 49 at page 54. It was observed by their Lordships as follows:
“It cannot be disputed that acquisition means and implies the acquiring of the entire title of the expropriated owner, whatever the nature or extent of that title might be. The entire bundle of rights which was vested in the original holder would pass on acquisition to the acquirer leaving nothing in the former. In taking possession on the other hand, the title to the property admittedly remains in the original holder, though he is excluded from possession or enjoyment of the property”.
21. Further it was observed:
“In the context in which the word “acquisition” appears in Article 31(2), it can only mean and refer to acquisition of the entire interest of the previous holder by transfer of title and I have no hesitation in holding that there is no such acquisition either as regards the property of the company or of the share holders in the present case. The question, therefore narrows down to this as to whether the legislation in question has authorised the taking of possession of any property or interest belonging to the petitioner”.
22. In the present case the Government did not acquire any mill, and, therefore, in my opinion, this ruling has no bearing on the facts of this case, not only because the Government did not acquire any mill but also because it is a case altogether different in nature from the one with which this reference is concerned. There was no question of relation of landlord and tenant.
23. The next case that I would deal with is the case reported in AIR 1954 SC 119 (B). That also was a case concerning the Sholapur Spinning and Weaving Company. This ruling was cited for the purpose of showing what is the meaning of the word ‘property’. His Lordship Das, J. was of the opinion that
“the mills, machineries, stocks, etc., of the respondent company are ‘property’ within the meaning of Articles 19 and 31. A contract or agreement which a person may have with the company & which may be cancelled by the directors in exercise of powers under the Ordinance will undoubtedly be ‘property’ within the meaning of the two Articles. The rights of the share-holders, e.g, the right of voting the right to elect directors and the right to apply for the winding up of the company are no doubt valuable rights but it is doubtful if any of these rights can be called ‘property’ within the meaning of Article 31(2), for, by itself and apart from the shares none of them can be acquired or disposed”.
24. His Lordship Bose, J. was of the view that
“‘property’ includes any interest in any commercial or industrial undertaking. It also includes any interest in any company owning any interest in any commercial or industrial undertaking”.
25. His Lordship Ghulam Hasan, J. was of the opinion that
“the word ‘property’ used in the Article must be construed in the widest sense as connoting a bundle of rights exercisable by the owner in respect thereof and embracing within its purview both corporeal and incorporeal rights. The word ‘property’ is not denned in the Constitution and there is no reason to restrict its meaning”
26. His Lordship Mahajan, J. who had dissented from Das, J. was of the opinion that
“the word ‘acquisition’ has quite a wide concept, meaning the procuring of property or the taking of it permanently or temporarily. It does not necessarily imply the acquisition of legal title by the State in the property taken possession of.”
27. The point that Mr. Saran was making was that when the rights of the landlord in trees were taken away by virtue of Bihar Act 11 of 1950, it was property that was being acquired, and as a result of this acquisition the landlord was deprived of his property. It is apparent from what has been cited above that there is no unanimity on the meaning of the word ‘property’, and it would be idle, in my opinion, for the purposes of this case to enter into the intricacies as to the meaning of the word ‘property’.
28. The next case referred to by Mr. Saran is the case reported in AIR 1944 FC 41 (C). That case concerns with master and servant and the liability of Government for the acts of its officers, I am not able to see how it is relevant so far as this reference is concerned, and, therefore, there is no point in making any further reference to this case of the Federal Court.
29. Mr. Saran, in short, submitted that the rights in the trees of the landlord must be kept separate from the rights in the holdings, and that the trees being that of the landlord and the rights in the trees having been taken away, the landlord has been deprived, as it were by compulsory acquisition without compensation, of the trees.
30. Mr. Lalnarain Sinha opposing the reference submitted that the rights of the tenants in the holdings must be considered as a whole including the rights, if any, that the tenants may have in the trees on the holdings. For this purpose he referred to the case of — ‘Henry Hill & Co. v. Sheoraj Rai AIR 1922 Pat 9 (D). It was observed in that case that a raiyat taking a lease of a fishery only cannot acquire an occupancy right therein, but if he takes a lease of a holding of which part is under water, then his right to the acquisition of occupancy rights in the entire holding, inclusive of the portion which forms the bed of the water, cannot be defeated.
31. It was also observed that the right of fishery is an interest in land. Mr. Lalnarain Sinha in support of his submission that there has been no compulsory acquisition referred to — ‘Hulas Narain v. Deen Mohammad’, AIR 1943 PC 9 (E). That was a case where the appellants were zamindars holding a permanently settled estate in the district of Patna. They instituted a suit against the defendants-respondents for recovery of rent in respect of an occupancy holding at the rate of half share of the crops.
32. The defendants contended that by virtue of Section 178-B of the Bihar Tenancy Act, enacted by the Bihar Tenancy (Amendment) Act 8 of 1937, the plaintiffs were not entitled to claim rent at a rate higher than nine-twentieths of the produce. The plaintiffs' case was that S. 178-B was, for various reasons, ultra vires of the Bihar Legislature and was, in any case, inoperative in respect of permanently settled estates.
33. The High Court repelled the plaintiffs' contentions, and holding that the section in question was within the competence of the Bihar Legislature & was validly enacted, gave effect to its provisions in respect of the plaintiffs' claim for rent against the defendants. In appeal to the Federal Court, the attack upon the validity of S. 178-B was confined to two main grounds: (1) that the section contravened the provisions of Section 299(2) of the Constitution Act, and (2) that the subject-matter of the section fell within the purview of entry No. 10 of the Concurrent List, anil that the section itself not having received the assent of the Governor-General or of His Majesty and being repugnant to the provisions of the Bengal Tenancy Act, 1885, and the Permanent Settlement Regulation, 1 of 1793, was void on account of such repugnancy. Their Lordships observed as follows:
“Counsel failed utterly to explain in what manner the impugned section was in conflict with sub-s. (2) of Section 299 of the Constitution Act. There is no question here of the compulsory acquisition for public purposes of any land, etc., within the meaning of the sub-section, but it was contended that the impugned section in some way contravened that spirit of the sub-section. We are unable to see any force in this contention and need not pursue it any further”.
34. In other words, the Legislature by enacting Section 178-B of the Bihar Tenancy Act, had altered the rate of share of the crops, & though this was so, there was no compulsory acquisition as understood under Section 299 of the Constitution Act, 1935. In the same volume (1943 FC 29), the learned Advocate referred to the case of — Jagannath Baksh Singh v. United Provinces’, AIR 1943 FC (F). That was a case of cutting down the rights of talukdars conferred by sanads in ??? and it was held that the Act was not ultra vire and Section 299(2) of the Government of India Act had application. It was observed in that case that
“if once it be found that the subject-matte of a Crown grant is within the competence ??? a Provincial Legislature, nothing can prevent that Legislature from legislating about it, unless the Constitution Act itself expressly prohibit legislation on the subject, either absolutely ??? conditionally. Such a provision must be express and specific. It cannot be extracted from delaying or safeguarding provisions of the Constitution Act. Every intendment ought to be made in favour of a Provincial Legislature which is exercising its legislative powers”.
35. I have already pointed out that in the Provincial Legislative List, under item 21 the Bihar Legislature could legislate on matters concerning the relation between landlord and tenant. That being so, unless there is an express provision in the Constitution Act of 1935, that it cannot legislate on these matters, it must be held that the Bihar Legislature had power to legislate on matters concerning the relation between landlord and tenant and other matters referred to in item 21 of the List.
36. I would next refer to a Privy Council case cited by Mr. Lalnarain Sinha which is reported in AIR 1946 PC 127 — ‘Jagannath Baksh Singh v. United Provinces (G) the same case as AIR 1943 FC 29 (F). That was a case concerning the U.P Tenancy Act (Act 17 of 1939). It was held that in spite of the fact that the rights of the Oudh talukdars under Crown grants were affected, the said Act was not ultra vires by virtue of the provisions of Sections 100, 299, 300(1) and Sch 7, List II, item 21 of the Government of India Act. Lord Wright observed in that case as follows:
“It has not been possible for the appellant to adduce any authority for the principle involved, which their Lordships apprehend to be that Parliament, whether Imperial, Federal or Provincial, in the absence of express prohibition, is debarred from legislating so as to vary the effect of a Crown grant. The appellant relies on certain express provisions of the Government of India Act.
Thus he relies on S. 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 relation 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”.
37. His Lordship further observed:
“Their Lordships agree with that view. They completely concur in the opinion of the Federal Court that if once in be found that the subject-matter of a Crown grant is within the competence of a Provincial Legislature nothing can prevent that Legislature from legislating about it unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally”.
38. What in effect the two impugned Acts did was to regulate the relation between landlord and tenant which the Provincial Legislature had every power to do in view of Item 21 of List II. It is thus clear that the Legislature when it passed the two impugned Acts was doing nothing more than to regulate the relation between landlord and tenant, and the question therefore, of compulsory acquisition, as under-stood under Section 299 of the Government of India Act, 1935, does not arise.
39. Though it was never argued before us that Bihar Act 11 of 1950 was discriminatory within the meaning of Article 14 of the Constitution, yet I must deal with this aspect in view of para 11 of the letter of reference which is as follows:
“Article 14 of the Constitution Act enjoins on the State not to deny to any person equality before the law or the equal protection of the laws. The Bihar Act 11 of 1950 discriminates between the proprietor and other persons inasmuch as the proprietor is disqualified from having any right in the trees or bamboos standing on the holding of tenants while other persons are allowed to have that right. For this reason as well the two Acts in question are void.”
40. In my opinion, neither of the impugned Acts offends Article 14 of the Constitution, because the legislations in question refer, to a class of persons and not to individuals. It is now well settled that where there is a discrimination between classes of persons and not in the same class of persons themselves, there is no discrimination provided that the legislation is not arbitrary.
41. The impugned Acts merely increased the rights of tenants and thereby diminished the rights of landlords with a view to improve the conditions of the tenants. Such legislation cannot possibly be described as arbitrary, and, therefore, it cannot be said that the two impugned Acts, in any way, offended the provisions of Article 14 of the Constitution.
42. To the question whether Section 9 of the of Bihar Act 25 of 1947 and the entire Bihar Act 11 of 1950 are ultra vires and void, I would answer that these Acts are not ultra vires and void.
43. The reference is accordingly disposed of.
Das, C.J:— I agree to the answer which my learned brother is proposing to give, to the reference made by the learned Subordinate Judge of Palamau. The crux of the matter is whether the impugned legislation is confiscatory legislation within the meaning of sub-s. (2) of Section 229 of the Government of India Act, 1935.
44. Mr. Awadh Bihar Saran has contended that in the matter of trees the impugned legislation takes away the entire rights of the landlord and gives them to the raiyat. His argument is that where the law takes away one man's property and gives it to another, it amounts to compulsory acquisition, even though the State has not acquired it and for this proposition he has relied on the — ‘State of West Bengal v. Subodh Gopal Bose’, AIR 1954 SC 92 (H).
45. He has further argued that sub-ss. (1) and (2) of Section 299 of the Government of India Act, should be read in the same manner as cls. (1) and (2) of Article 31 of the Constitution. His argument is that where the deprivation is total deprivation, and not merely regulation of property, sub-s. (2) of Section 299 of the Government of India Act, comes into play, and unless the law provides for the payment of compensation it will be bad by reason of the provisions of the said sub-section.
46. In my opinion, it is unnecessary to consider cls. (1) and (2) of Article 31 in this connection; those clauses, though they have a similarity to sub-ss. (1) and (2) of Section 299 of the Government of India Act, 1935, are not expressed exactly in the same terms; for example, the scope of cl. (2) of Article 31 is much wider than the scope of sub-s. (2) of S. 299.
47. I am, therefore, refraining from discussing in detail the decisions of the Supreme Court on cls. (1) and (2) of Article 31 of the Constitution, and I am confining myself to the terms in which sub-s. (2) of Section 299 of the Govt. of India Act, 1935, has been expressed. That sub-section, in my opinion, clearly relates to confiscatory legislation.
48. The question, therefore, is, is the impugned legislation in the present case confiscatory legislation within the meaning of sub-s. (2) of Section 299 of the Government of India Act, 1935? My answer is that it is not.
49. The expression “compulsory acquisition for public purposes” has, in my opinion, been used in sub-s. (2) of Section 299 of the Government of India Act, 1535, in a limited sense, namely, in the sense where the property is acquired compulsorily for public purposes.
50. In its true effect the impugned legislation regulates the relation of landlord and tenant in respect of an occupancy holding and alters the rights or incidents relating to such a holding. Mr. Awadh Bihar Saran, appearing in support of the reference, has confined his attention to the rights in trees only.
51. If I may say so without meaning any disrespect, he has failed to take into consideration the larger question of the incidents of an occupancy holding. If the question is looked at from that larger point of view, namely, the incidents of an occupancy holding and the rights of the landlord and tenant in and over land comprised in an occupancy holding, then it becomes clear at once that the impugned legislation is not confiscatory legislation at all, but is legislation which came clearly within the competence of the Provincial Legislature under item 21 of List II of the Seventh Schedule of the Government of India Act 1935.
52. This question is, I think, completely covered by the decision of the Privy Council in AIR 1946 PC 127 (G), to which my learned brother has made a reference. Their Lordships made it perfectly clear that there was a difference between confiscatory legislation and regulating the relation of landlord and tenant and thereby diminishing rights hitherto exercised by the landlords in connection with the land.
53. The conception of the right of private property is a somewhat complex conception. “Property” may consist of a bundle of rights. If one right is taken away or diminished and the entire attention is confined to that particular right only, then so far as that right is concerned it may be said to have been taken away from one person and given to another.
54. If, however, the entire holding is considered with reference to the rights therein of both the landlord and the tenant, then the diminishing of the right of one and the increase of the right of another is not necessarily confiscatory legislation.
55. If such regulation of the rights of the landlord and tenant is held to be confiscatory legislation, then it would be impossible to make any legislation regulating the relation of landlord and tenant in respect of an occupancy holding. I am therefore, of the view that in its true scope and effect the impugned legislation is not confiscatory legislation and was not hit by sub-s. (2) of Section 299 of the Government of India Act, 1935.
56. As to Article 14 of the Constitution, I am quite clear in my mind that there is no discrimination between landlord and landlord. The impugned legislation had for its object the regulation of the rights of landlord and tenant in respect of an occupancy holding. The landlords were put in a class by themselves, and within that class no discrimination was made. The classification was a reasonable classification, having regard to the object of the legislation, and within that class no discrimination whatsoever was made. The fact that the rights of strangers have not been affected by the impugned legislation is no ground for holding that the legislation is discriminatory in nature.
K.S.B
57. Reference answered accordingly.