JUDGMENT
A.B.N. Sinha, J.
1. This appeal by the plaintiff and defendant No. 4 arises out of a suit for declaration of the plaintiff's raiyati rights over 5.31 acres of lands comprised of eight plots appertaining to khata No. 10 of village Babhani, fully described in the schedule to the plaint and for confirmation of possession or for recovery of possession thereof. The suit was decreed by the trial Court but was dismissed by the lower appellate Court.
2. According to the plaintiff's case, Tikait Birendra Narayan Singh, the proprietor of village Babhani, settled under a registered patta, dated the 27th February 1947 about 31.13 acres of land accertaining to khata No. 10 and other khatas of village Babhani in permanent raiyati rights with his daughter Shrimati Churamani Kumari, defendant No. 4, who came into possession of the lands so settled with her. On the 18th February 1957. under a registered sale-deed the aforesaid Shrimati Churamani Kumari sold the suit lands as well as other lands to the plaintiff. When the plaintiff applied for mutation of his name, defendant No. 1 filed objections in regard to the suit lands. The plaintiff's application for mutation was dismissed by the Anchal Adhikari, and his appeal to the Sub-Divisional Officer, Giridih, was also unsuccessful. This having cast a cloud on his title, he filed the title suit for the aforesaid reliefs.
3. The suit was contested by defendants Nos. 1 to 3 only. Defendant No. 4, the vendor of the plaintiff, supported the plaintiff's case. The case of the contesting defendants was that the suit lands had been settled with defendants Nos. 1 and 2 in raiyati rights by virtue of a hukumnama on the 1st of January 1945 by Tikait Birendra Narayan Singh, who had put them in possession of the same and that they were in possession of the lands ever since then. It was further pleaded on their behalf that the plaintiff was not a resident of village Babhani or of any village within the police station of Dhanwar or within the district of Hazaribagh in the year 1957 or on the date of the execution of the sale-deed, dated the 18th February 1957 and, as such, the sale-deed, dated the 18th February 1957 in favour of the plaintiff was in contravention of the provisions of Section 46 of the Chota Nagpur Tenancy Act, 1908, and, accordingly the plaintiff acquired no title and right over the suit lands. Their further case was that neither Shrimati Churamani Kumari nor the plaintiff was at any time in possession of the suit lands.
4. The trial Court found both title and possession with the plaintiff and rejected the defendants' case of settlement and possession. It further held that the plaintiff was a resident within the local limits of the district of Hazaribagh from before the 18th February 1957, and, as such, the sale-deed, dated the 18th February 1957 (Ex. 1) executed by defendant No. 4 in favour of the plaintiff was not hit by Section 46 of the Chota Nagpur Tenancy Act. It, accordingly, decreed the suit.
5. On appeal by the contesting defendants, the learned Additional Subordinate Judge, Hazaribagh, has, however, come to the conclusion that though it has been established that the plaintiff, and not the contesting defendants, was in possession of the suit lands and that Shrimati Churamani Kumari who purported to sell the suit lands to the plaintiff was also in possession, but it had not been established that the plaintiff was a resident of Doranda, as claimed by him, at the time of the execution of the sale-deed, dated the 18th February 1957 (Ex. 1) in his favour, and, accordingly the sale was hit by Section 46 of the Chota Nagpur Tenancy Act, and, it could not be said that the plaintiff had acquired any title under the sale-deed. In that view of the matter, he dismissed the suit. Hence, this appeal by the plaintiff, who is appellant No. 1. His vendor, Shrimati Churamani Kumari (defendant No. 4) has also joined this appeal as appellant No. 2.
6. Mr. G.C. Mukherji, learned Counsel appearing in support of this appeal has, firstly, urged that the finding on the question of plaintiff's residence reached by the lower appellate Court was vitiated in law and was fit to be set aside.
I am, however, unable to give effect to this contention. In Chand Manjhi v. Surja Manjhi, 1955 BLJR 275, it has been held by a Bench of this Court that 'resident' as used in Section 46 of the Chota Nagpur Act meant one having a permanent place of abode and did not include temporary or occasional residence. Their Lordships referred in support of their decision to the judicial construction of the word 'residence' as mentioned in the book called words and phrases and also to the meaning given to the word 'residence' in Corpus Juris. Applying this test to the facts of the present case. I have no doubt that on the materials on the record, the lower appellate Court was justified in coming to the conclusion that the plaintiff has not been able to establish that he was a resident of Doranda within the district of Hazaribagh as claimed by him or of any other place within the local limits of the district of Hazaribagh.
All that the evidence of the plaintiff (P. W. 11) and his other witnesses on the point establishes is that the native place of the plaintiff was in village Mahulia. Police Station Ghatsila, district Singhbhum, and that his father's lands were still in Mahulia, but that he got a house from his mother-in-law, namely, defendant No. 4, "in the year 1952 orally which she in turn, had got orally from her father" in the year 1940. The lower appellate Court has also referred to the witnesses examined on this question on behalf of the contesting defendants. It appears from their evidence that the plaintiff was a resident of Tatanagar and that the plaintiff had no house at Doranda at all and that whenever he visited Doranda, he stayed in the Garh of Rajmata, namely, the widow of Tikait Birendra Narayan Singh.
In short, there is no evidence on the record that the plaintiff had any permanent place of abode in Doranda or anywhere else within the district of Hazaribagh. The lower appellate Court has also pointed out that none of the documents filed on behalf of the plaintiff on this question were of any assistance to him. I am, accordingly, of the opinion that the lower appellate Court has rightly come to the conclusion that the plaintiff had not been able to establish that he was a resident of Doranda or of any place within the district of Hazaribagh.
The learned Counsel laid stress on certain statements made by D. W. 3 in course of his cross-examination and urged that on those statements alone it should have been held that the plaintiff was a resident of a place within the local limits of the district of Hazaribagh. It is true that D. W. 3 had stated that the plaintiff lived at Gandri within police Station Dhanwar in the Bhaudar of Tikait Birendra Narayan Singh and further that the plaintiff was the Sarpanch of Maheshwar Cram Panchayat, Police station, Dhanwar. Even if these statements are accepted on their face value, they do not, in my opinion, show that the plaintiff was a resident of Doranda or of Gandri or of Maheshwar at the time of the execution of the sale-deed in his favour. Indeed, there is not an iota of evidence on the record to suggest that the plaintiff had any permanent residence at either Doranda or at any place within the local limits of the district of Hazaribagh at the time of the execution of the sale-deed by defendant No. 4 in his favour. There is also no evidence on the record to show that he was a Sarpanch of Maheshwar Gram Panchayat at the time when the sale-deed (Ex. 1) was executed in his favour. I am, therefore, of the opinion that none of the aforesaid statements of D. W. 3 are of any assistance to the plaintiff. This contention, accordingly, fails.
7. Much stress was however, laid on an additional ground which was permitted to be taken when this appeal was put up for hearing in the first instance before a learned Single Judge of this Court. It was urged that after the commencement of the Constitution of India, the provisions of Section 46 of the Chota Nagpur Tenancy Act, 1908, hereinafter referred to as 'the Act', or in any event proviso (c) to Sub-section (1) of Section 46 of the Act was ultra vires the Constitution in so far as it was inconsistent with the fundamental right to property enshrined in Article 19(1)(f) of the Constitution and the restriction on the right of transfer imposed under the said proviso not being in the interests of the general public was not saved by Article 19(5) of the Constitution and was thus liable to be struck down, and, therefore, even if it were assumed that the plaintiff was not a resident of any place within the local limits of the district of Hazaribagh on the date when Ex. 1 was executed in his favour, yet the sale-deed conferred good title on him and his suit should have been decreed
8. The relevant provisions of Section 46 of the Chota Nagpur Tenancy Act, 1908, which were substituted for the original Section 46 by Section 14 of Bihar Act, 25 of 1947, are as under:
"46. Restrictions on transfer of their rights by raiyats-
(1) No transfer by a raiyat of his right in his holding or any portion thereof-
(a) by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent:
Provided that a raiyat may enter into a bhugut bandha mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935, for any period not exceeding fifteen years:
Provided further that-
(a) an occupancy raiyat who is a member of the scheduled tribes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person who is a member of the scheduled tribes and who is a resident within the local limits of the area of the police station within which the holding is situate;
(b) an occupancy raiyat who is a member of the scheduled castes or backward classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person who is a member of the scheduled castes or, as the case may be, backward classes and who is a resident within the local limits of the district within which the holding is situate; and
(c) an occupancy raiyat who is not a member of the schedule tribes, scheduled castes or backward classes may transfer without the sanction of the Deputy Commissioner his right in his holding or any portion thereof to another person who is resident within the local limits of the district in which the holding is situate.
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(3) No transfer in contravention of Sub-section (1) shall be registered, or shall be in any way recognised as valid by Court, whether in exercise of civil, criminal or revenue jurisdiction.
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It may be noted that the restrictions on the transfer of raiyati holdings in Chota Nagpur were first introduced in the Amendment Act, 1903, the avowed object being to stop the sale of holding by improvident raiyats and to restrict all forms of mortgage and thereby to save the aboriginal population from falling into the clutches of speculative money lenders.
It will appear from the later amendments that the rigours of the drastic restrictions have been gradually relaxed, perhaps in proportion to the extent of the advancement of the different sectors of the population comprised in Chota Nagpur. The position to-day, as will appear from the relevant provisions, quoted above, is that, apart from the period for which an occupancy raiyat in Chota Nagpur may enter into a bhugnt bandha mortgage which is controlled by the main proviso to Sub-section (1) of Section 46, with which we are not concerned in the present case, where as an occupancy raiyat who was a member of one of the scheduled tribes can transfer his right in the holding by sale, exchange, gift or will to only a person who is himself a member of the scheduled tribe and resident within the local limits of the area of the police station within which the holding is situate and that also with the previous sanction of the Deputy Commissioner, an occupancy raiyat who is a member of one of the scheduled castes or one of the backward classes may with the previous sanction of the Deputy Commissioner transfer his right in the holding by sale, exchange, gift, will or lease to another member of the scheduled caste or backward class who is resident within the local limits of the district within which the holding is situate; the restriction is further relaxed in the case of an occupancy raiyat who is not a member of the scheduled tribes, scheduled or backward classes, and the plaintiff's vendor in the present case admittedly belongs to this category. Such an occupancy raiyat need not lake the previous sanction of the Deputy Commissioner.
The only restriction in his case is that his transferee must be a person who is resident within the local limits of the district in which the holding is situate. It is this restriction which is being challenged in the present case as ultra vires the Constitution as being an unreasonable restriction on the fundamental right of property as embodied in Article 19(1)(f) of the Constitution. The question, however, is whether this restriction is saved under Article 19(5) of the Constitution; in other words, is this restriction in the interests of the general public ? If it is so, there can be no doubt the vires of the impugned provision.
9. Before examining the reasonableness or otherwise of the restriction imposed on the right of transfer under proviso (c) to Sub-section (1) of Section 46 of the Act, it may be pointed out that the expression "interests of the general public" In Clause (5) of Article 19 is very wide, and the State is always competent to impose restrictions under Clause (5) on grounds of social and economic policy. The right to freedom of citizens to acquire, hold and dispose of properties may thus be circumscribed on such grounds as well. It may further be clarified that the mere fact that the impugned provision does not directly affect the citizens of other States of the Republic of India or even of the other divisions of the State of Bihar itself, does not, in my opinion, necessarily imply that the restrictions imposed thereunder are not in the interests of the general public. Legislation affecting a particular class or a particular area would, quite obviously, directly affect the members of that particular class or the inhabitants of that particular area only, but if the object of the legislation was the protection and safeguarding of the interest of a particular class or of persons residing in a particular area, or, the object was the removal of some serious abuse or grievance or discontent of that particular class or particular area, it must be held that such a legislation indirectly affects the public in general. It can hardly be disputed that a legislation for securing one or another of the objects referred to in Clauses (b) and (c) of Article 39 of the Constitution must be held to be a legislation in the interests of the general public.
9A. Now, one of the objects behind the impugned provision and the restriction contained therein appears to be to shut out and eliminate absentee or outside owners of agricultural lands situate in Chota Nagpur. Such persons, not being residents of the district within the local limits of which the holding concerned was situate, arc extremely unlikely to take the optimum interest necessary for the agricultural development of those lands. Once, however, they become residents of the district or of contiguous police stations, it may be presumed that they have thrown in their lot with the other permanent agricultural tenants of the area concerned and will be as much interested in the development or conservation of those lands as the other residents. This is quite clearly in the interests of the general public. Further, it is common knowledge that the rich mineral resources of Chota Nagpur, particularly its mica and coal deposits, have attracted a large number of persons with ample resources from different parts of India with the primary object of exploiting those minerals. Such persons are generally equipped with greater resources than the indigenous population; and in order to protect the comparatively weaker section, namely, the indigenous population, from the stronger, namely, the persons who have come in Chota Nagpur with large resources, a restriction of the type laid down in the impugned proviso serves, in my opinion, to a large extent to prevent the latter section of the people from grabbing the agricultural lands of the area by taking advantage of the comparative poverty of the indigenous section and thus in the result reducing the agricultural occupancy raiyats into a mass of landless labourers. From this point of view as well, the restriction imposed and challenged in the present case must be held to be in the interests of the general public.
After all, it cannot be denied that the Constitution, after recognising the rights as to property in Sub-clauses (f) and (g) of Article 19 thereof, proceeds to make it perfectly clear that these rights are not absolute and cannot be treated as ends in themselves. The Constitution itself envisages those rights being co-related certain inevitable obligations imposed on all the citizens of India in the interest of achieving socio-economic Justice, and, if a certain legislative provision, as indicated above, seeks to promote and safeguard the interests of the agricultural community, comparatively weaker than the numerous persons surrounding them or living with them temporarily, as effectively as it may, by preventing the former from losing their agricultural lands to the latter and thus becoming landless labourers, it must be held that the provision is in the interests of the general public. I am, accordingly, satisfied that the impugned proviso, namely, proviso (o) to Sub-section (1) of Section 46 of the Act is not ultra vires the Constitution and is fully saved under Article 19(5) of the Constitution.
10. In support of his contention that the impugned proviso to Sub-section (1) of Section 46 of the Chota Nagpur Tenancy Act was ultra vires the Constitution, Mr. Mukherji, however, sought to rely on two decisions of the Supreme Court one reported in Bhau Ram v. Baij Nath Singh, AIR 1962 SC 1476, and the other in Ram Sarup v. Munshi, AIR 1963 SC 553, and also a Full Bench decision of the Pepsu High Court reported in Rulia Ram v. Sadh Ram, AIR 1952 Pepsu 190 (FB). In my opinion, none of these decisions are of any assistance to us in the present case. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, may be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. Indeed, it cannot be disputed that no inflexible rule can be laid down for all cases, and each case must be decided on its facts. In both the decisions of the Supreme Court, referred to above, the question of the reasonableness of the right of pre-emption in the context of the facts of those cases so far as it operated as a restriction on the fundamental right as guaranteed by Article 19(1)(f) of the Constitution, was under consideration.
In the former case, the constitutionality of certain provisions of the pre-emption laws prevailing in the States of Madhya Pradesh (Rewa-State area), Delhi and Maharashtra (Berar-area) was under consideration. In regard to the Rewa-State Pre-emption Act, 1946, the majority decision was that the restrictions placed by the Jaw of pre-emption as enacted in Section 10 of the Rewa State Pre-emption Act, 1946 in a case based on vicinage did not have any effect on prices being reasonably fixed, and its main effect was that it gave rise to a crop of litigation, and thus by such a law of pre-emption there could be no advantage to the general public, and, in any event, the disadvantage certainly overweighed the advantage that may result by the operation of such a law.
Accordingly, the right of pre-emption given in the second clause of Section 10 of the said Act to the owners in the neighbourhood solely on the ground of vicinage was held to be unreasonable restriction on the right to the property as guaranteed under Article 19(1)(f) of the Constitution and was struck down. So far as the Punjab Pre-emption Act, I of 1913 as applicable to the City of old Delhi was concerned, their Lordships were considering the constitutionality of the first, third, fourth and sixth grounds as given in Section 16 of the said Act on which a right of pre-emption in respect of urban immovable property could be rested. While holding that a right of pre-emption based on co-sharer ship as given in the first ground in the property sold or to persons interested in common passage, common staircase and the like as given in the third and fourth grounds was a reasonable restriction on the right to the property, the sixth ground in which the right of pre-emption was based on vicinage was held unconstitutional on the same ground as given in respect of the Rewa Act.
Coming to Chap. XIV of the Berar Land Revenue Code, 1928, Section 174 whereof laid down that the right of pre-emption thereunder shall arise only in regard to the land held by the occupants in a survey number in respect of transfers of interest in the survey number, their Lordships on a consideration of the other sections of the Code and the real object behind Section 174 held that the law of pre-emption, as embodied in Section 171, really served the purpose of consolidating the holdings generally and this being reasonable, it did not infringe Article 19(1)(f) of the Constitution. In the second decision of the Supreme Court, referred to above, the right of pre-emption guaranteed by Section 6 of the Punjab Pre-emption Act was challenged as an infringement of the right guaranteed by Article 19(1)(f) of the Constitution.
The challenge was repelled on the ground that the restriction was reasonable and was in the interests of the general public, because its objective was to preserve the integrity of the village and the village community and to implement the agnatic rule of succession. Their Lordships further observed that the objective underlying the first ground was prima facie reasonable and calculated to further the interest of the general public, and, in any case the second ground that the object was to retain the property in the family was sufficient to render the restriction reasonable and in the interest of the general public within Article 19(5) of the Constitution. To sum up, the effect of the two decisions of the Supreme Court, referred to on behalf of the appellants, is that in the context of the facts of each case and the provisions of the relevant statutes the right of pre-emption was not an unreasonable restriction on the right to property as enshrined in Article 19(1)(f) of the Constitution and was in the interests of the general public except in the case when such a right was based on the ground of vicinage merely, specially when it related to urban property.
The validity of the argument that preemption by vicinage in the case of agricultural properties resulted in consolidation of agricultural lands which was raised in the case of Rewa State Preemption Act, 1946 was not really considered, because in the case of Rewa Act, their Lordships held that the impugned provision applied not only to agricultural holding but also to urban properties. It will appear from the above summary that none of the two decisions of the Supreme Court sought to be relied upon by the appellants, are of any assistance in the determination of the question in the present case. In regard to the decision of the Pepsu High Court reported in AIR 1952 P&H 190 it may suffice to point out that the question whether the restriction imposed by Section 3 of the Patiala Alienation of Land Act upon the powers of the members of statutory agricultural tribes to dispose of land satisfied the conditions of Clause (5) of Article 19 of the Constitution was not determined on its merits. Their Lordships proceeded on concessions made at the Bar.
This will be obvious from the following extract from the judgment of the learned Chief Justice who delivered the judgment in the case and with which the two other learned Judges agreed:
"Now the question is whether the restriction imposed by Section 3 of the Alienation of Land Act upon the power of the members of statutory agricultural" tribes to dispose of land satisfies the conditions of Clause (5) of Article 19, and fortunately for the plaintiff neither the appellants, counsel nor the counsel who appeared for the Deputy Commissioner contended before us that this was the case. In fact, both the learned counsel frankly admitted that the restriction was not reasonable and whether or not it was in the interests of the tribes notified to be agriculturists, it was certainly not in the interests of the general public. No question of the restriction being for the protection of the interests of any scheduled tribe arose in the present case, because the tribe to which the vendor and the vendee belongs is not a scheduled tribe. In the face of this admission on the part of the appellants and the petitioner's counsel we have no other alternative but to hold that Section 3 of the Alienation of Land Act, in so far as it restricts the power of members of notified agricultural tribes to alienate agricultural land is inconsistent with Article 19 of the Constitution and accordingly it is void"
It follows from the aforesaid discussion that there is no substance in the contention that proviso (c) to Sub-section (1) of Section 46 of the Chota Nagpur Tenancy Act was not saved by Article of the Constitution or was in any manner ultra vires the Constitution
11. It was finally urged by Mr. Mukherjee that as the learned Additional Subordinate Judge has found possession with the plaintiff, there was no difficulty in decreeing the suit on the basis of the plaintiff's possessory title and passing a decree for confirmation of plaintiff's possession. I am however, unable to give effect to this submission as well. The plaintiff claims to be in possession in pursuance of title acquired under Ex. 1, which must be held to be hit by proviso (c) of Sub-section (1) of Section 46 of the Act. The title as claimed by him in the suit lands being thus negatived, no decree for confirmation of possession can be passed in his favour. It follows that the plaintiff's suit has rightly been dismissed.
12. In the result, the appeal fails and is dismissed with costs.
Mahapatra, J.
13. I agree.
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