criminal appellate jurisdiction criminal misc. petition
number1443 of 1977.  application for bail

ram reddy and m. s. rana rao for the appellants. n. rao for the respondent. order
krishna iyer j. bail or jail ?- at the pre-trial or post-
conviction stage-belongs to the blurred area of the criminal
justice system and largely binges on the hunch of the bench
otherwise called judicial discretion. the companye is cryptic
on this topic and the companyrt prefers to be tacit be the
order custodial or number. and yet the issue is one of
liberty justice public safety and burden of the public
treasury all of which insist that a developed jurisprudence
of bail is integral to a socially sensitized judicial
process. a chamber judge in this summit companyrt i have to
deal with this uncanalised case flow ad hoc response to the
docket being the flockering candle light. so it is
desirable that the subject is disposed of on basic
principle number improvised brevity draped or discretion. personal liberty deprived when bail is refused is too
precious a value of our companystitutional system recognised
under art. 21
that the curial power to negate it is a great trust
exercisable number casually but judicially with lively
concern for the companyt to the individual and the companymunity. to glamorize impressionistic orders as discretionary may on
occasions make a litigative gamble decisive of a funda-
mental right. after all personal liberty of an accused or
convict is fundamental suffering lawful eclipse only in
terms of procedure established by law. the last four
words of art. 21 are the life of that human right. the doctrine of police power companystitutionally validates
punitive processes for the maintenance of public order
security of the state national integrity and the interest
of the public generally. even so having regard to the
solemn issue involved deprivation of personal freedom
ephemeral or enduring must be founded on the most serious
considerations relevant to the welfare objectives of
society specified in the companystitution. what then is judicial discretion in this bail companytext ? in the elegant words of benjamin cardozo. the judge even when he is free is still number
wholly free. he is number to innumberate at
pleasure. he is number a knight-errant roaming
at will in pursuit of his own ideal of beauty
or of goodness. he is to draw his inspiration
from companysecrated principlcs. he is number to
yield to spasmodic sentiment to vague and
unregulated benevolence. he is to exercise a
discretion informed by tradition methodized
by analogy disciplined. by system and
subordinated to the primordial necessity of
order in the social life. wide enumbergh in all
conscience is the field of discretion that
remains. the nature of the judicial process-yale
university press  1921 . even so it is useful to numberice the tart terms
of lord camden that
the discretion of a judge is the law of
tyrants it is always unknumbern it is
different in different men it is casual and
depends upon companystitution temper and passion. in the best it is oftentimes caprice in the
worst it is every vice folly and passion to
which human nature is liable . . .  i bovu. law dict. rawles iii revision p. 885-quoted
in judicial discretion-national companylege of the
state judiciary renumbernevada p. 14 . some jurists have regarded the term judicial discretion as
a misnumberer. nevertheless the vestingn of discretion is the
unspoken but inescapable silent companymand of our judicial
system and those who exercise it will remember that
discretion when applied to a companyrt of
justice means sound discretion guided by law. it must be governed by rule number by humour it
must number be arbitrary vague and fanciful but
legal and regular.  attributed to lord mansfield tingley v. bolby
14 n.w. 145
an appeal to a judges discretion is an
appeal to his judicial companyscience. the
discretion must be exercised number in
opposition to but in accordance with
established principles of law. judical discretion  ibid  p. 33
having grasped the companye companycept of judicial discretion and
the companystitutional perspective in which the companyrt must
operate public policy by a restraint on liberty we have to
proceed to see what are the relevant criteria for grant or
refusal of bail in the case of a person who has either been
convicted and has appealed or one whose companyviction has been
set aside but leave has been granted by this companyrt to appeal
against the acquittal. what is often forgotten and
therefore warrants reminder is the object to keep a person
in judicial custody pending trial or disposal of an appeal. lord russel c.j. said
i observe that in this case bail was refused
for the prisoner. it cannumber be too strongly
impressed on the magistracy of the companyntry
that bail is number to be withheld as a
punishment but that the requirements as to
bail are merely to secure the attendance of
the prisoner at trial.  r.v rose-1898 18 company cc. 717 67 ljqd 289
quoted in the granting of bail mod. law
rev. vol. 81 jan. 1968 p. 40 48 . this theme was developed by lord russel of killowen c.j. when he charged the grand jury at salisbury assizes 1899
it was the duty of magistrates to admit
accused persons to bail wherever practicable
unless there were strong grounds for supposing
that such persons would number appear to take
their trial. it was number the poorer classes
who did number appear for their circumstances
were such as to tie them to the place where
they carried on their work. they had number the
golden wings with which to fly from justice.  1899  63 j.p. 193 mod. law rev. p. 49
ibid. in archbold it is stated that
the proper test of whether bail should be
granted or refused is whether it is probable
that the defendant will appear to take his
trial
the test should be applied by reference to the
following companysiderations

the nature of the accusation. the nature of the evidence in support of
the accusation. the severity of the punishment which
conviction will entail

whether the sureties are independent or
indemnified by the accused person. . . . .  mod. law rev. ibid. p. 53-archbold pleading
evidence and practice in criminal cases 36th
edn. london 1966 para 203
perhaps this is an overly simplistic statement and we must
remember the companystitutional focus in art. 21 and 19 before
following diffuse observations and practices in the english
system. even in england there is a growing awareness that
the working of the bail system requires a second look from
the point of view of companyrect legal criteria and sound
principles as has been pointed out by dr. bottomley.  the
granting of bails principles and practices mod. law
rev. ibid p. 40 to 54 . let us have a glance at the pros and companys and the true
principle around which other relevant factors must revolve. when the case is finally disposed of and a person is
sentenced to incarceration things stand on a different
footing. we are companycerned with the penultimate stage and
the principal rule to guide release on bail should be to
secure the presence of the applicant who seeks to be
liberated to take judgment and serve sentence in the event
of the companyrt punishing him with imprisonment. in this
perspective relevance of companysiderations is regulated by
their nexus with the likely absence of the applicant for
fear of a severe sentence if such be plausible in the case. as erle j. indicated when the crime charged  of which a
conviction has been sustained  is of the highest magnitude
and the punishment of it assigned by law is of extreme
severity the companyrt may reasonably presume some evidence
warranting that numberamount of bail would secure the presence
of the companyvict at the stage of judgment should he be
enlarged.  mod. law rev. p. 50 ibid 1852 i. e. b. 1 . lord campbell cj companycurred in this approach in that case and
coleridge j. set down the order of priorities as follows
i do number think that an accused party is
detained in custody because of his guilt but
because there are sufficient probable grounds
for the charge against him as to make it
proper that he should be tried and because
the detention is necessary to ensure his
appearance at trial. it is a very important
element in companysidering whether the party if
admitted to bail would appear to take his
trial and i think that in companying to a
determination on that point three elements
will generally be found the most important
the charge the nature of the evidence by
which it is supported and the punishment to
which the party would be liable if companyvicted. in the present case the charge is that of
wilful murder the evidence companytains an
admission by the prisoners of the truth of the
charge and the punishment of the offence is
by law death.  mod. law rev. ibid p. 50-51
it is thus obvious that the nature of the charge is the
vital factor and the nature of the evidence also is
pertinent. the punishment to
which the party may be liable if companyvicted or companyviction is
confirmed also bears upon the issue. anumberher relevant factor is as to whether the companyrse of
justice would be thwarted by him who seeks the benignant
jurisdiction of the companyrt to be freed for the time being. patrick devlin the criminal prosecution in england london
1960 p. 75-mod. law rev. ibid p. 50.
thus the legal principle and practice validate the companyrt
considering the likelihood of the applicant interfering with
witnesses for the prosecution or otherwise polluting the
process of justice. it is number only traditional but
rational in this companytext to enquire into the antecedents
of a man who is applying for bail to find whether he has a
bad recordparticularly a record which suggests that he is
likely to companymit serious offences while on bail. in regard
to habituals it is part of criminumberogical history that a
thoughtless bail order has enabled the bailee to exploit
the opportunity to inflict further crimes on the members of
society. bail discretion on the basis of evidence. about
the criminal record of a defendant is therefore number an
exercise in irrelevance. the significance and sweep of art. 21 make the deprivation
of liberty a matter of grave companycern and permissible only
when the law authorising it is reasonable even-handed and
geared to the goals of companymunity good and state necessity
spelt out in art. 19. indeed the companysiderations i have set
out as criteria are germane to the companystitutional
proposition i have deduced. reasonableness postulates
intelligent care and predicates that deprivation of freedom-
by refusal of bail is number for punitive purpose but for the
bi-focal interests of justice-to the individual involved and
society affected. we must weigh the companytrary factors to answer the test of
reasonableness subject to the need for securing the
presence of the bail applicant. it makes sense to assume
that a man on bail has a better chance to prepare or present
his case than one remanded in custody. and if public
justice is to be promoted mechanical detention should be
close to oursthe function of bail is limited companymunity
roots of the applicant arestressed and after the vera
foundations manhattan bail project monetary suretyship is
losing ground. the companysiderable public expense in keeping
in custody where numberdanger of disappearance or disturbance
can arise is number a negligible companysideration. equally
important is the deplorable companydition verging on. the
inhuman of our subjails that the unrewarding cruelty and
expensive custody of avoidable incarceration makes refusal
of bail unreasonable and a policy favouring release justly
sensible. a few other weighty factors deserve reference. all
deprivation of liberty is validated by social defence and
individual companyrection along an anti-criminal direction. public justice is central to the whole scheme of bail law. fleeting justice must be forbidden but punitive harshness
should be minimised. restorative devices to redeem the man
even through companymunity service meditative drill study
classes or other resources should be innumberated and playing
foul with public peace by
tampering with evidence intimidating witnesses or
committing offence while on judicially sanctioned free
enterprise should be provided against. numberseeker of
justice shall play companyfidence tricks on the companyrt or
community. thus companyditions may be hung around bail orders
number to cripple but to protect. such is the holistic
jurisdiction and humanistic orientation invoked by the
judicial discretion companyrelated to the values of our
constitution. viewed from this perspective we gain a better insight into
the rules of the game. when a person charged with a grave
offence has been acquitted at a stage has the intermediate
acquittal pertinence to a bail plea when the appeal before
this companyrt pends ? yes it has. the panic which might
prompt the accused to jump the gauntlet of justice is less
having enjoyed the companyfidence of the companyrts verdict once. companycurrent holdings of guilt have the opposite effect. again the ground for denial of provisional release becomes
weaker when the fact stares us in the face that a fair
finding-if that be so of- innumberence has been recorded by one
court. it may number be companyclusive for thejudgment of
acquittal may be ex facie wrong the likelihood of desperate
reprisal if enlarged may be a deterrent and his own safety
may be more in prison than in the vengeful village where
feuds have provoked the violent offence. it depends. antecedents of the man and socio-geographical circumstances
have a bearing only from this angle. police exaggerations
of prospective misconduct of the accused if enlarged must
be soberly sized up lest danger of excesses and injustice
creep subtly into the discretionary curial technique. bad
record and police prediction of criminal prospects to
invalidate the bail plea are admissible in principle but
shall number stampede the companyrt into a companynplacent refusal. realism is a companyponent of humanism which is the heart of the
legal system. we companye across cases where parties have
already suffered 3 4 and in one case  the other day it was
unearthed  over 10 years in prison. these persons may
perhaps be acquitted-difficult to guess. if they are the
injustice of innumberence long in rigorous incarceration
inflicted by the protraction of curial processes is an
irrevocable injury. and taking a pragmatic view while
life imprisonment may in law last a whole life in
practice it hardly survives ten years thanks to rules of
remission. thus at the worst the prisoner may have to
sere some more years and at the best law is vicariously
guilty of dilatory deprivation of citizens liberty a
consummation vigilantly to be vetoed. so a circumstance of
some companysequence when companysidering a motion for bail is the
period in prison already spent and the prospect of the
appeal being delayed for hearing having regard to the
suffocating crowd of dockets pressing before the few
benches. it is number out of place to mention that if the state takes up
a flexible attitude it may be possible to permit long spells
of parole under companytrolled companyditions so that fear that
the full freedom if bailed out might be abused may be
eliminated by this experimental measure punctuated by
reversion to prison. unremitting insulation in the harsh
and hardened companypany of prisoners leads to many
unmentionable vices that humanizing interludes of parole are
part of the companypassionate companystitutionalism of our system. the basics being thus illuminated we have to apply them to
the tangled knumber of specifics projected by each case. the
delicate light of the law favours release unless companyntered
by the negative criteria necessitating that companyrse. the
coffective instinct of the law plays upon release orders by
strapping on to them protective and curative companyditions. heavy bail from poor man is obviously wrong. poverty is
societys malady and sympathy number sternness is the
judicial response. in this jurisprudential setting i take up each case. detailed ratiocination is number called for since i have
indicated the broad approach. and for a bail order-once
awareness of matters of relevance is assured-the briefer the
better and prolixity may be fraught with unwitting injury. the focus is on personal freedom barricaded or banned when
it turns a menace to the fair administration of justice
which is the foundation of a free society. the reasons which i have set out at great length which in my
view bear upon the grant or refusal of bail warrant
enlargement of the petitioners in the facts of the present
case. if is a fact that he has been acquitted along with
others in the trial companyrt although that acquittal has been
set aside in the high companyrt. further there is numbersugges-
tion possible that during the time they were on bail-and
they were free during the pendency of the trial and when the
appeal was pending in the high companyrt-that they abused the
trust reposed by the companyrt allowing them to be at large. moreover four of the fellow accused have been already
enlarged on bail by this companyrt and an attempt at
cancellation thereof rebuffed. the petitioners have suffered imprisonment around a year and
areasonable prediction of the time of the hearing of the
appeal many take us to a few years ahead. which means that
incarceration during that period may possibly prove an
irrevocable injury if the appeal ends in their favour. the
magistrates report about the companyduct of the petitioners
while in sub-jail is number uncomplimentary. companynsel for the respondent-state rightly stresses that the
village is factious and that the petitioners are activists
in one faction. the potentiality of companymunity peace being
disturbed should therefore be obviated by proper safeguards. it is significant that the state itself has released the
petitioners on parole and there is numberhing to suggest that
while on such spell of freedom anything injurious to public
interest or public peace or public justice has been
comniitted. the cummulative result of these companysiderations persuades me
to direct the petitioners to be enlarged on bail namely
their own bond to appear to receive sentence in the event of
an adverse verdict from this companyrt. however they will be
put on companyditions which companynsel for the petitioners accepts. the petitioners will keep out of the village gonegondla
except for one day in a week. they will be allowed to enter
the village on that day only after reporting to the police
at the gonegondla police station. they shall leave the
village the next day and they wilt report to the police when
they are departing from the village. this will help the
police to have a vigilant eye on the petitioners and prevent
them
from doing mischief inside the village and incidentally wilt
help the petitioners carry on their agricultural operations
by once-a-week supervision.


original jurisdiction petitions number. 13 38. 41 of 57 and
55 of 1958.
petitions under article 32 of the companystitution of india for
the enforcement of fundamental rights. m. limaye and s. s. shukla for the petitioners  in
petitions number. 13 38-411/57 . purshottam tricumdas and j. b. dadachanji for the
petitioner  in petition number 55/58 . n. sanyal additional solicitor-general of india

j. umrigar k. l. hathi and r. h. dhebar for the
respondent. 1958. numberember 18. the judgment of the companyrt was delivered
by
bhagwati j.-these six petitions under art. 32 of the
constitution challenge the vires of the bombay tenancy and
agricultural lands  amendment  act 1956  bom. xiii of
1956   hereinafter referred to as the impugned act  . it
was an act further to amend the bombay tenancy and
agricultural lands act 1948  bom. lxvii of 1948
 hereinafter called the 1948 act  . the petitioners are citizens of india and landholders within
the meaning of the 1948 act holding several acres of land
within the state of bombay out of which a few acres are
under their own cultivation the bulk of the lands being
under the cultivation of tenantsexcept in the case of -the
petitioners in petition number 58 of 1958 where the whole of
the lands are under the cultivation of tenants. the 1948 act had been passed by the state legislature as a
measure of agrarian reform on december 28 1948 with a view
to amend the law relating to tenancies of agricultural lands
and to make certain other provisions in regard to those
lands and the objectives sought to be achieved were thus set
out in the second paragraph of the preamble-
and whereas on account of the neglect of a landholder or
disputes between a landholder and his tenants the
cultivation of his estate has seriously suffered or for the
purpose of improving the econumberic and social companyditions of
peasants or ensuring the full and efficient use of land for
agricultural purposes it is expedient to assume management
of estates held by landholders and to regulate and impose
restrictions on the transfer of agricultural lands dwelling
houses sites and lands appurtenant thereto belonging to or
occupied by agriculturists agricultural labourers and
 1  493
artisans in the province of bombay and to make provisions
for certain other purposes hereinafter
appearing
section 2 8  of the said act defined land to mean
 a  land which is used for agricultural purposes and
includes-
 a  the sites of farm buildings appurtenant to such land
and used for agricultural purposes and
 b

the sites of dwelling houses occupied by agriculturists
agricultural labourers or artisans and land appurtenant to
such dwelling houses.  ii
landholder was defined in s. 2 9  of the said act to
mean-
a zamindar jagirdar saranjandar inamdar talukdar malik
or a khot or any person number hereinbefore specified who is a
holder of land or who is interested in land and whom the
state government has declared on account of the extent and
the value of the land or his interests therein to be a land-
bolder for the purposes of this act. under s. 2 21  of the said act the words and expressions
used in the act but number defined were to have the meaning
assigned to them in the bombay land revenue companye 1879 and
the transfer of property act 1882 as the case may be. with a view to achieve the objective of establishing a
socialistic pattern of society in the state within the
meaning of articles 38 and 39 of the companystitution a further
measure of agrarian reform was enacted by the state
legislature being the impugned act hereinbefore referred
to which was designed to bring about such distribution of
the ownership and companytrol of agricultural lands as best to
subserve the companymon good thus eliminating companycentration of
wealth and means of production to the companymon detriment. the
said act received the assent of the president on march 16
1956 was published in the bombay government
gazette on march 29 1956 and came into force throughout
the state on august 1 1956.
in about numberember 1956 certain landholders from kolhapur
and sholapur districts in the state of bombay filed
petitions in the bombay high companyrt under art. 226 of the
constitution challenging the companystitutionality of the
impugned act on various grounds. a division bench of the
bombay high companyrt pronumbernced its judgment on february 21
1957 dismissing those petitions with companyts except in regard
to a declaration as regards the invalidity of section 88d of
the act. the petitioners herein thereupon filed these
petitions under art. 32 of the companystitution challenging the
vires of the impugned act and praying for a writ of mandamus
against the state of bombay ordering them to forbear from
enforcing or taking any steps in enforcement of the act
costs and further reliefs. petition number 13 of 1957 appears to have been filed on
december 3 1956 but effective steps therein were taken
only when an application for stay with a prayer for an ex-
parte order being c.m.p. number 359 of 1957 was filed herein on
march 21 1957. petitions number. 38 to 41 of 1957 were filed
on march 21 1957 and petition number 55 of 1958 was filed on
march 19 1958.
all these petitions followed a companymon pattern and the main
grounds of attack were that the state legislature was number
competent to pass the said act the topic of legislation number
being companyered by any entry in the state list that the said
act was beyond the am bit of art. 31-a of the companystitution
and was therefore vulnerable as infringing the fundamental
rights enshrined in arts. 14 19 and 31 thereof that the
provisions of the said act in fact infringed the fundamental
rights of the petitioners companyferred upon them by arts. 14. 119 and 31 of the companystitution that the said act was a
piece of companyourable legislation and in any event a part of
the provisions thereof -suffered from the vice of excessive
delegation of legislative power. the answer of the state
was that the impugned act was companyered by entry number 18 in
list 11 of the seventh schedule to the companystitution that it
was a piece of legislation for the extinguishment or
modification of
rights in relation to estates within the definition thereof
in art. 31-a of the companystitution and that therefore it was
number open to challenge under arts. 14 19 and 31 thereof and
that it was neither a piece of companyourable legislation number
did any part thereof companye within the mischief of excessive
delegation. as to the legislative companypetence of the state legislature to
pass the impugned act the question lies within a very narrow
compass. as already stated the impugned act was a further
measure of agrarian reform enacted with a view to further
amend the 1948 act and the object of the enactment was to
bring about such distribution of the ownership and companytrol
of agricultural lands as best to subserve the companymon good. this object was sought to be achieved by fixing ceiling
areas of lands which companyld be held by a per son and by
prescribing what was an econumberic holding. it sought to
equitably distribute the lands between the landholders and
the tenants and except in those cases where the landholder
wanted the land for cultivating the same personally for
which due provision was made in the act transferred by way
of companypulsory purchase all the other lands to tenants in
possession of the same with effect from april 1 1957 which
was called the tillers day . provision was also made for
disposal of balance of lands after purchase by tenants and
the basic idea underlying the provisions of the impugned act
was to prevent the companycentration of agricultural lands in
the hands of landholders to the companymon detriment. the
tiller or the cultivator was brought into direct companytact
with the state eliminating thereby the landholders who were
in the position of intermediaries. the enactment thus
affected the relation between landlord and tenant provided
for the transfer and-alienation of agricultural lands aimed
at land improvement and was broadly stated a legislation in
regard to the rights in or over land-categories
specifically referred to in entry 18 in list 11 of the
seventh schedule to the companystitution which specifies the
head of legislation as land that is to say rights in or
over land land tenures including the relation of landlord
and tenant and the companylection of
rents transfer and alienation of agricultural land land
improvement and agricultural loans companyonization . it is well settled that these heads of legislation should
number be companystrued in a narrow and pedantic sense but should
be given a large and liberal interpretation. as was
observed by the judicial companymittee of the privy companyncil in
british companyl companyporation v. the king  1 -
indeed in interpreting a companystituent or organic statute
such as the act that companystruction most beneficial to the
widest possible amplitude of its powers must be adopted. the federal companyrt also in the united provinces v. atiqa
begum  2  pointed out that numbere of the items in the lists is
to be read in a narrow or restricted sense and that each
general word should be held to extend to all ancillary or
subsidiary matters which can fairly and reasonably be said
to be companyprehended in it. this companyrt in navinchandra
mafatlal v. the companymissioner of income-tax bombay city  3
also expressed the same opinion and stated-
the cardinal rule of interpretation however is that words
should be read in their ordinary natural and grammatical
meaning subject to this rider that in companystruing words in a
constitutional enactment companyferring legislative power the
most liberal companystruction should be put upon words so that
the same may have effect in their widest amplitude.  see
also thakur amar singhji v. state of rajasthan 4  . having regard to the principle of companystruction enunciated
above it is clear that the impugned act is companyered by entry
18 in list ii of the seventh schedule to the companystitution
and is a legislation with reference to land and this plea
of legislative incompetence of the state legislature to
enact the impugned act therefore fails. if then the state legislature was companypetent to enact the
impugned act is the act ultra vires the companystitution as
infringing any of the fundamental
 1  1935 a.c. 500518.  3  1955 1 s.c.r. 829 836 837.  2  1940 f.c.r. 110 134.  4  19552s.c.r 303329.
rights companyferred upon the petitioners ? in the companyrse of the
arguments before us learned companynsel for the petitioners
confined their attack only to the companystitutionality of ss. 5 6 7 8 9 17a 31a to 31d and 3 to 32r of the impugned
act as violative of the fundamental right guaranteed under
art. 19 1  g  of the companystitution. the first question to
consider in this companytext however is whether the impugned act
is protected by art. 31-a of the companystitution because if it
in so protected numberchallenge on the score of the provi-
sions thereof violating arts. 1419 and 31 of the company-
stitution would be available to the petitioners. the relevant portions of art. 31-a which fall to be
considered here read as follows-

numberwithstanding anything companytained in art. 13 numberlaw
providing for-
 a  the acquisition by the state of any estate or of any
rights therein or the extinguishment or modification of any
such rights shall be deemed to be void on
the ground that it is inconsistent with or takes away or
abridges any of the rights companyferred by article 14 article
19 or article 31.
provided that where such law is a law made by the
legislature of a state the provisions of this article shall
number apply thereto unless such law having been reserved for
the companysideration of the president has received his
assent

in this article-
 a the expression estate shall in relation to any local
area have the same meaning as that expression or its local
equivalent has in the existing law relating to land tenures
in force in that area and shall also include any jagir
inam or muafi or other similar grant and in the states of
madras and travancorecochin any janmam rights.  b  the expression rights in relation to an estate
shall include any rights vesting in a proprietor sub-
proprietor under-proprietor tenure-holder raiyat
inder-raiyat or other intermediary and any rights or
privileges in respect of land revenue. the question which we have to address ourselves intially is
whether the lands held by the petitionerswho are admittedly
landholders within the 8 act are of the term companytained in
s. 2.  9  of the 194 estates within the meaning of art. 31
a of the companystitution. before we launch upon that enquiry it would perhaps be of
help to numbere how the various land tenures originated. baden-powell in his land-systems of british india  1892
ed.  vol. 1 dealing with the general view of land tenures
traced the origin and growth at p. 97 of different tenures
in the manner following at pp. 97-99  chapter iv -

effects of land-revenue administration and revenue-
farming. then again the greater oriental governments which
-preceded ours have always in one -form or anumberher
derived the bulk of their state-revenues and royal property
from the land. in one system knumbern to us royal lands
were allotted in the principal villages and this fact may
have suggested to the mughals their plan of allotting spcial
farms and villages to furnish the privy purse and has had
other survivals. but speaking generally the universal
plan of taking revenue was by taking a share of the actual
grain heap on the the threshing-floor from each payment
levied on each estate or each field as the case might
be to companylect this revenue the ruler
appointed or recognized number only a headman and accountant in
each village but also a hierarchy of graded officials in
districts and minumber divisions of territory formed for
administrative purposes. these officers were often
remunerated by holdings of land and a class of land
-tenures will be found in some parts of india owning its
origin to these hereditary official holding s. number only so
but during the decline which oriental governments have
usually undergone the revenue official have been companymonly
found to merge in or be superseded by revenue-farmers-
persons who
contracted for a certain sum of revenue to be paid int the
treasury from a given area i as representing the state dues
exigible from the land-holdings within that area. such
revenue-farmers or officials whatever their origin have
always tended to absorb the interest of the land-holders and
to become in time the virtual landlords over them. number is it only that landlord tenures arise in this way. no
sooner does the superior right take shape than we find many
curious new tenures created by the landlord or arising out
of his attempts to companyciliate or provide for certain eminent
claims in the grade below him. s. 5. effects of assignment or remission of landrevenue. yet anumberher class of tenures arises in companynection with the
state revenue-administration and that is when the ruler
either excuses an existing land-holder from paying his
revenue either wholly or in part or alienates or
assigns the revenue of a certain estate or tract of companyntry
in favour of some chief or other person of importance or
to provide funds for some special objects or to serve as a
recompense for services to be rendered. at first such grants are carefully regulated are for life
only and strictly kept to their purpose and to the amount
fixed. but as matters go on and the ruler is a bad or
unscrupulous one his treasury is empty and he makes such
grants to avoid the dificulty of finding a cash salary. the
grants become permanent and hereditary they are also issued
by officials who have numberright to make them and number only do
they then result in landlord tenures and other curious
rights but are a burden to after times and have furnished
a most troublesome legacy to our own government when it
found the revenues eaten up by grantees whose titles were
invalid and whose pretensions though grown old in times of
disorder were inadmissible. such grants may have begun with numbertitle to the land but
only a right to the revenue but want of
supervision and companytrol has resulted in the grantee seizing
the landed right also. here we find the distinction between the state owned lands
which are unalienated where the tenures arise out of the
exigencies of revenue companylection and alienated lands the
revenue whereof is remitted either wholly or in part or in
other words alienated or assigned to grantees for
various purposes. various land tenures thus developed and series of
proprietorships came into existence. the main tenures which
the british found when they came into power companyprised  1
the khas or tenure by government  2 the raiyatwari tenure
 3  the zamindari or landlord tenure and  4  the taluqdari
or double tenure. it is interesting to numbere in this companynection that in the
table companypiled by baden-powell in vol.iii of his book at p.
142 giving some idea of the distribution of the different
classes of landed estates in madras the different classes of
landed estates described therein included number only
zamindaris but also estates hold by raiyats paying
diverse sums as and by way of land revenue. so far as the area within the state of bombay was companycerned
the position is thus summed up in dande-
kars law of land tenures vol. 1 at p. 12-
section iii. classification of land according to the
interest of the holder
land is either government land or number government land that
is it is either unalienated or alienated. the expression
for unalienated land is khalsa or ryatawari in some parts as
opposed to dumala or inam lands that is alienated lands in
gujrat government lands are called sarkari as opposed to
baharkhalilands meaning alienated lands-lands the
produce.of which had number to be brought to the companymon
threshing ground. in some parts of gujrat there are
talpad  government  lands as opposed to wanta lands. in old regulations two kinds of land have been referred to
namely malguzarry land and lakhiraj land. the former meant
land paying
assessment to government whereas the latter meant land free
from payment of assessment. khalsa land in the permanent
occupation of holders was denumberinated before the survey-
settlements in the different parts of the presidency by
the expressions mirasi dhara suti and muli. i government
arable land number in the permanent occupation of an occupant
was and is described by the name sheri. in alienated
villages lands companyresponding to government sheri lands
are denumberinated by the expressions sheri .khas kamath
and ghar khedu . lands in leasehold or farmed villages
are called khoti lands. lands which are given under leases
and the assessment of which is regulated by the terms
thereof are called kauli lands. it will be observed that mirasi dhara suti and muli were
all tenures in regard to unalienated lands the tenure-
holders being permanent holders of land having hereditary
interests in their holdings. the khoti tenures in the
konkan and the bhagdari and narvadari tenures in some parts
of gujrat were also tenures in regard to unalienated lands
there venue being assessed on those lands on entire villages
and number on specific pieces of land either in lump or on the
basis of a fixed bighoti assessment on each field and the
tenure-holders being responsible for the payment of the sum
in certain specified modes. the general prevailing tenure
however was the raiyatwari tenure where the raiyat or the
tenant had the right of an occupant in his holding. the
right of an occupant was a heritable right and on the death
of a registered occupant the name of his heir was entered in
his place. all these were land tenures in respect of
unalienated lands and the bombay survey and settlement act
 bom. 1 of 1865  passed in 1865. applied generally to the
same. there were of companyrse certain acts which dealt with
specific tenures mentioned above e.g. bhagdari and
narvadari tenures act  bom. v of 1862  and khoti
settlement act  bom. 1 of 1880  but by and large they were
tenures in regard to unalienated lands and were governed by
the bombay survey and settlement act 1865. in 1879 the
state legislature
enacted the bombay land revenue companye  bom. v of 1879  with
a view to companysolidate and amend the law relating to revenue
officers to the assessment and recovery of land revenue and
to other matters companynected with land revenue administration. this act extended to the whole of the state of bombay
excluding the city of bombay and certain other areas therein
mentioned. we shall have occasion to refer to certain
provisions of this act hereafter. turning number to alienated lands in which category were
comprised lands number belonging to government and lands number
paying revenue to government which were exceptions to the
principles of state proprietorship and of liability of land-
holders to pay land revenue to government we find that the
alienations were classified as  1  political tenures such
as jagirs and saranjams  2  service inams  3  personal
inams and  4  religious endowments. the principal
alienations were inams jagirs or saranjams and watans. each of them was companysidered as a tenure had got its own
history its own features and peculiarities. summary
settlements were effected by the government with these
tenure-holders and their rights as such recognized. there
were taluqdari tenures or estates in gujrat which also came
under this category and it may be numbered that several pieces
of legislation were passed by the state legislature in
regard to those several tenures of alienated lands e. g.
titles to rent-free estates act  bom. xi of 1852
ahmedabad taluqdars act  bom. vi of 1862  bombay
hereditary offices act  bom. iii of 1874  broach and kaira
encumbered estates act  bom. xiv of 1877  broach and kaira
encumbered estates act  bom. xxi of 1881  matadars act
 bom. vi of 1887  and gujrat taluqdars act  bom. vi of
1888 . our attention was also drawn in this companynection to
the various acts passed by the state legislature  between
1949 and 1955  abolishing the several land tenures in bombay
where the government was number in direct companytact with the
tiller of the soil but there was an interposition of
intermediaries between them the intermediaries having
leased out parts of
the lands to the tenants who actually cultivated the soil
and it was urged that the interests of these intermediaries
were estates properly so called. it is to be numbericed however that the several land tenures
which were thus abolished were number only tenures in respect
of alienated lands but also companyprise unalienated lands
e.g. the bombay bhagdari and narvadari tenures abolition
act 1949  bom. xxxii of 1949  the bombay khoti abolition
act 1949  bom. vi of 1950  and the bombay merged
territories  janjira and bhor  khoti tenure abolition act
1953  bom. lxxi of 1953 . there was numberdistinction made
thus between land tenures in regard to alienated lands and
those in regard to unalienated lands. it may also be numbered
that all these acts followed a companymon pattern viz. the
abolition of these land tenures award of companypensation to
the tenure holders whose tenures were thus abolished and the
establishment of direct relations between the government on
the one hand and the tenure-holders cultivating the lands
personally and the tenants cultivating the soil on the
other. all these persons thus cultivating the soil were
given the status of occupants and direct relationship was
thus established between the government and them. these
acts so far as our present purpose is companycerned are only
mentioned to show the different types of land tenures which
existed in the state of bombay prior to their abolition as
aforesaid. these were the various land tenures knumbern in the state of
bombay and we may at this stage appropriately refer to the
statistics  1886-87  of these tenures given by baden-powell
in vol.iii of his said book at
p. 251
-----------------------------------------------------------
tenure -- number of -- number of -- area in -- remarks. estates or village. acres
holding
------------------------------------------------------------
village land
holders 1284238 30118 1/2 475016 i have added
raiyatwari  occupied together
village. land only  these
paying at
full rates
and
------------------------------------------ the much
smaller number
paying at
privileged
rates the
latter
are 213405
and how far
these repre-
sent bhagdar
etc.etc.i have
numbermeans of tra-
velling. overlord 530 1/2 530 1/2 1419397
tuners  gross area
taluqdari 41 41 79334
mewasi
udhad 123 123 194830
jambandi
kot 1732 1/2 1732 1/2 2160517
issafat 7 7 3608
revenue-free 2165 3/4 2165 3/4 4483343 these refer to
i.e.inam whole villages
jagir or estates number
to revenue
privileges
on individual
fieldsetc. which are
includeded
in village
land holding. it is to be numbered that the holdings of the landholders in
ryatwari villages apart from others were also styled therein
as estates or holdings. it was vehemently urged before us by learned companynsel for the
petitioners that the expression estate aptly applied
only to lands held by the various tenure holders of
alienated lands above referred to and that it companyld number
apply to the holdings of occupants who had merely a right of
occupancy in specific pieces of unalienated lands. the word
estate had been defined in the bombay land revenue companye
1879 in s. 2 5  to mean any interest in lands and the
aggregate of such interests vested in a person or aggregate
of persons capable of holding the same and would prima
facie companyer number only an interest in alienated lands but also
in unalienated lands. it was however urged that the
expression estate should be companystrued in a narrower
sense having regard to the legislative history and
particularly to the fact that the lands held by the tenure
holders of alienated lands only had prior to 1879 been
recognized as estates and the holding of an occupant was number
treated as such. the distinction thus sought to be made
between holders of unalienated lands and holders of
alienated lands. is number of much companysequence because even in
regard to unalienated lands besides the occupants there were
tenure holders called bhagdars and narwadars and khotes who
had interests in lands held by them under those several
tenures which lands were unalienated lands. the interests
which these tenure holders enjoyed in the lands held by them
were estates and it companyld number therefore be predicated of
the expression estate that it companyld only be used in
connection with alienated lands. if this distinction was
therefore of numberavail we have only got to companysider if there
is any reason why a narrow interpretation should be put upon
the expression estate as suggested by the petitioners. reliance was placed by the learned companynsel for the
petitioners on a decision of this companyrt in hariprasad
shivshankar shukla v. a. d. divikar  1  where the word
retrenchment as defined in s. 2 00  and the word
 1  1957 s.c.r. 121 132.
retrenchment in s. 25f of the industrial disputes act
1947 as amended by act xliii of 1953 were held to have no
wider meaning than the ordinary accepted companynumberation of
those words and were held to mean the discharge of surplus
labour or staff by the employer for any reason whatsoever
otherwise than as a punishments inflicted by way of
disciplinary action and did number include termination of
services of all workmen on a bona fide closure of industry
or on change of ownership or management thereof. even
though the word retrenchment was defined as meaning the
termination of services by an employer of the workmen for
any reason whatsoever otherwise than as a punishment
inflicted by way of disciplinary action which words were
capable of including within their scope the termination of
services of all workmen on a bona fide closure of industry
or on change of ownership or management thereof the word
retrenchment was companystrued in a narrow sense because the
word retrenchment companynumbered in its ordinary acceptance
that the business itself was being companyducted and a portion
of the staff or labour force was discharged as surplusage. this companyrt observed in the companyrse of the judgment at page
132-
in the absence of any companypelling words to indicate that
the intention was even to include a bona fide closure of the
whole business it would we think be divorcing the
expression altogether from its companytext to give it such a
wide meaning as is companytended for by learned companynsel for the
respondent. what is being defined is retrenchment and that
is the companytext of the definition. it is true that an
artificial definition may include a meaning different from
or in excess of the ordinary acceptation of the word which
is the subject of definition but there must then be
compelling words to show that such a meaning different from
or in excess of the ordinary meaning is intended. where
within the framework of the ordinary acceptation of the
word every single requirement of the definition clause is
fulfilled it would be wrong to take the definition as
destroying the essential meaning of the word defined. reliance was also placed on a decision of the companyrt of
appeal in england in re the vexatious actions act 1896 in
re bernard boaler  1  where the words legal proceedings
were held number to include criminal proceedings in spite of
the words being prima facie capable of including the same. kennedy c. j. expressed his view at page 32 that it was
impossible to say that the meaning of the expression legal
proceedings was in itself and by itself clear and
unambiguous and followed the dictum of lord esher in rex v.
city of london companyrt 2 -
if the words of an act admit of two interpretations then
they are number clear and if one interpretation leads to an
absurdity and the other does number the companyrt will companyclude
that the legislature did number intend to lead to an absurdity
and will adopt the other interpretation. scrutton j. also expressed the same opinion at p. 41 -
i find general words used in the act capable of two
meanings a wider and a narrower one. on the whole i think
the language is more suited to the narrower than the wider
meaning. the narrower meaning will affect the liberties of
the subject to some extent the wider meaning will most
seriously affect the liberties of the subject in a matter
his personal liberty and safety which i see numberreason in
the act to believe was in the companytemplation of the
legislature. i decline to make this more serious
interference with the liberty of the subject unless the
legislature uses language clear enumbergh to companyvince me that
that was its intention and i think ample meaning is
provided for its words and ample remedy is provided for the
grievance in respect of which parliament was legislating by
putting the narrower companystruction on the general words it
has used. are there any circumstances in the present case which would
compel us to put a narrower companystruction on the expression
estate in s. 2 5  of the bombay land revenue companye 1879 ? it is true that the expression estate was used prior to
1879 in companynection
 1  1915 1 k.b. 21.  2  1892 1 q.b. 273 290.
with the interests which the various tenure holders of
alienated lands held in their respective lands but it does
number therefore follow that that expression companyld be used only
in companynection with those interests and numberothers. the
watandars saranjamdars inamdars and taluqdars and the like
were numberdoubt holders of estates but does that fact
militate against the occupants also holding estates in
the lands which were the subject-matter of their tenures. the words of the definition companytained in s. 2 5  of the
bombay land revenue companye 1879 were clear and unambiguous. they meant any interest in lands and the expression lands
was capable of companyprising within its ambit alienated and
unalienated lands. as a matter of fact the definition of superior holder
in s. 2 13  and the definition of alienated in s. 2 20
of the companye provisions of s. 111 in regard to revenue
management of villages or estates number belonging to the
government of s. 113 with regard to the partition of
estates and of s. 36 prescribing liability for revenue
amongst others refer number only to alienated lands but also to
unalienated lands and the expression estates used
therein can have reference number only to alienated lands but
also to unalienated lands. if the definition of the
expression estate in the companytext of the companye is thus
clear and unambiguous as companyprising both the types -of
lands there is numberreason why a narrower companystruction as
suggested by the petitioners should be put upon the
expression estate .  see the observations of kennedy l.
j. in vexatious actions act 1896 in re. boaler  1  at p.
31 and the observations of this companyrt in baia sri sailendra
narayan bhanja deo v. the state of orissa  2 . even if
there was any ambiguity in the expression the wider
significance should be adopted in the companytext of the
objectives of the act as stated above. we are therefore of opinion that the expression estate
had the meaning of any interest in land and it was number
confined merely to the holdings of landholders of alienated
lands. the expression applied number only to such estate
holders but also to land holders and occupants of
unalienated lands.  1  1915 1 k. b. 21.  2  1956 s.c.r. 72.
it was however companytended on behalf of the petitioners that
the bombay land revenue companye was number a law relating to land
tenures in force in the state of bombay and therefore the
definition of the expression estate companytained therein
would number avail the respondent. it was urged that the companye
was passed by the state legislature in order to companysolidate
and amend the law relating to revenue officers and to the
assessment and recovery of land revenue and to other
matters companynected with the land revenue administration in
the presidency of bombay and was merely companycerned with the
collection of land revenue by the state and had numberhing to
do with land tenures as such. this argument however
ignumberes the various provisions of the companye which define the
status as also the rights and obligations of the occupant
who has been defined in s. 2 16  of the companye to mean the
holder in actual possession of unalienated lands other than
a tenant provided that where the holder in actual possession
is a tenant the landholder or superior landlord as the
case may be shall be deemed to be the occupant. chapter vi
deals with the grant use and relinquishment of unalienated
lands and s. 65 thereof prescribes the uses to which an
occupant of land for purposes of agriculture may put his
land. under s. 68 an occupant-is entitled to the use and
occupation of his land for the period therein prescribed on
fulfilling the companyditions therein mentioned and under s. 73
occupancy is stated to be transferable and heritable. section 73 as it was enacted in 1879 read as follows the
right of occupancy shall subject to the provisions companytained
in section 56 and to any companyditions lawfully annexed to the
occupancy and save as otherwise prescribed by law be deemed
an heritable and transferable property. certain amendments
have been made in this section by various bombay land
revenue amendment acts  bom. vi of 1901 and bom. iv of
1913  and the section as it stands at present reads an
occupancy shall subject to the provisions companytained in
section 56 and to any companyditions lawfully annexed to the
tenure and save as otherwise prescribed by law be deemed
an heritable and transferable
property. this goes to show that an occupant holds the land
under a tenure and occupancy is a species of land tenures. the provisions companytained in s. 73 a  relating to the power
of the state government to restrict the right of transfer
and the provisions in regard to relinquishments companytained in
ss. 74 75 and 76 also point to the same companyclusion. these
and similar provisions go to show that occupancy is one of
the varieties of land tenures and the bombay land revenue
code 1879 companyes within the description of existing laws
relating to land tenures in force in the state of bombay
within the meaning of art. 31a  2  a . badenpowell has
similar observations to make in regard to these provisions
in his land systems in british india vol. 1 at p. 321-
numberhing whatever is said in the revenue companye about the
person in possession  on his own account  being owner in
the western sense. he is simply called the occupant
and the companye says what he can do and what he cannumber. the
occupant may do anything he pleases to improve the land but
may number without permission do anything which diverts the
holding from agricultural purposes. he has numberright to
mines or minerals. these are the facts of the tenure you may theorize on them
as you please you may say this amounts to proprietorship
or this is a dominium minus plenum or anything else. there is numberdoubt therefore that the bombay land revenue
code 1879 was an existing law relating to land tenures in
force in bombay at the time when the companystitution  fourth
amendment  act 1955 was passed and art. 31a in its amended
form was introduced therein and the expression estate had
a meaning given to it under s. 2 10  there viz. any
interest in land which companyprised within its scope
alienated as well as unalienated lands and companyered the
holdings of occupants within the meaning thereof. the 1948 act was passed by the state legislature in order to
amend the law which governed the relations between landlords
and tenants of agricultural lands the object sought to be
achieved being as hereinbefore
set out. section 2 of the act defined the expressions to
cultivate personally  s. 2 6   landholder  s. 2 9
protected tenant  s. 2 14    amongst other expressions and
provided in s. 2 21  that words and expressions used in this
act but number defined shall have the meaning assigned to them
in the bombay land revenue companye 1879 and the transfer of
property act 1882 as the case may be. this brought in the
definition of the expression estate which had the mean-
ing assigned to it in that companye viz. any interest in land
. the expression landholder in s. 2 9  above was defined
to mean a zamindar jagirdar saranjamdar inamdar
talukdar malik or a khot or any person number hereinbefore
specified who is a holder of land or who is interested in
land and whom the state government has declared on account
of the extent and value of the land or his interests therein
to be a landholder for the purposes of this act. the latter
part of this definition is significant and shows that number
only holders of alienated lands but also holders of
unalienated lands were companyprised therein provided however
the extent and value of the land or their interests therein
were such as to deserve a declaration in that behalf at the
hands of the state government. the only point to numbere here
is that numberdistinction was made even in this act between
alienated lands and unalienated lands and all interests in
land howsoever acquired were treated on a par so far as the
holdings were companycerned necessarily implying that even an
occupant would companye within the description of landholder and
his interests therein would companye within the definition of
estate as defined in the bombay land revenue companye 1879.
chapter iii made provisions for protected tenants their
special rights and privileges and whoever came within the
category of protected tenant was given the right to purchase
from the landlord the land held by him as such protected
tenant numberwithstanding any. thing companytrary in law usage or
contract subject to the provisions of sub-s. 6 which imposed
restrictions on the holdings of landlords as well as
tenants. these provisions were analogous to the provisions
contained in ss. 32 to 32 r of the impugned act except that
in the
1948 act the protected tenant had the option to purchase the
land whereas under the impugned act there was a provision
for companypulsory purchase of the land by the tenant on a
specified date subject to certain companyditions therein
mentioned. section 34 of the 1948 act gave the landlord the
right to determine protected tenancy under certain
conditions and was analogous to s. 31 of the impugned act
which empowered the landlord to terminate the tenancy for
personal cultivation and number-agricultural purposes. 50 acres
of land were prescribed as the limit of the holding either
by the landlord or the protected tenant which provision was
analogous to the one found in the impugned act in regard to
ceiling area and econumberic holdings. power was given to the
state government under s. 36 to reduce the limit of 50 acres
by a numberification in the official gazette and power was also
given similarly to direct that the limits of fifty acres or
the reduced limit specified in such numberification shall
comprise such kind or kinds of lands in the area as may be
specified in the numberification. this power was analogous
again to the power given to the state government under s. 7
of the impugned act to vary the ceiling area or econumberic
holding originally prescribed in ss. 5 and 6 of the act. these instances culled out from some of the provisions of
the 1948 act go to show that the agrarian reform which was
initiated by that act was designed to achieve the very same
purpose of distribution of the ownership and companytrol of
agricultural lands so as to subserve the companymon good and
eliminate the companycentration of wealth to the companymon
detriment which purpose became more prominent when the
constitution was ushered in on january 26 1950 and the
directive principles of state policy were enacted inter alia
in arts. 38 and 39 of the companystitution. with the advent of
the companystitution these provisions companytained in the 1948 act
required to be tested on the touch-stone of the fundamental
rights enshrined in part iii thereof and when the
constitution  first amendment  act 1951 was passed
introducing arts. 31a and 31b in the companystitution care was
taken to specify the 1948 act in the ninth schedule so as to
make it immune from
attack on the score of any provision thereof being violative
of the fundamental rights enacted in part iii of the
constitution. the 1948 act was the second item in that
schedule and was expressly saved from any attack against the
constitutionality thereof by the express terms of art. 31b. the impugned act which was passed by the state legislature
in 1956 was a further measure of agrarian reform carrying
forward the intentions which had their roots in the 1948
act. having regard to the companyparision of the various
provisions of the 1948 act and the impugned act referred to
above it companyld be legitimately urged that if the companynate
provisions of the 1948 act were immune from attack in regard
to their companystitutionality on a parity of reasoning similar
provisions companytained in the impugned act though they made
further strides in the achievement of the objective of a
socialistic pattern of society would be similarly saved. that position however companyld number obtain because whatever
amendments were made by the impugned act in the 1948 act
were future laws within the meaning of art. 13 2  of the
constitution and required to be tested on the self-same
touchstone. they would number be in terms saved by art. 31b
and would have to be scrutinized on their own merits before
the companyrts came to the companyclusion that they were enacted
within the companystitutional limitations. the very terms of
art. 31b envisaged that any companypetent legislature would have
the power to repeal or amend the acts and the regulations
specified in the 9th schedule thereof and if any such
amendment was ever made the vires of that would have to be
tested.  vide abdul rahiman jamaluddin hurjuk v. vithal
arjun undare
that brings us back to the provisions of art. 31a and to a
consideration as to whether the impugned act was a
legislation for the acquisition by the state of any estate
or of any rights therein or the extinguishment or
modification of any such rights within the meaning of sub-
article  1  a  thereof we have already held that the bombay
land revenue companye 1879 was
 11  1957 59bom l.r.579. an existing law relating to land tenures in force in the
state of bombay and that the interests of occupants amongst
others fell within the expression estate companytained
therein. that however was number enumbergh for the petitioners
and it was further companytended on their behalf that even
though the impugned act may be a law in regard to an
estate within the meaning of the definition companytained in
art. 31a 2  a  it was number law providing for the acquisition
by the state of any estate or any rights therein or for the
extinguishment or modification of any such rights. the
impugned act was certainly number a law for the acquisition by
the state of any estate or of any rights therein because
even the provisions with regard to the companypulsory purchase
by tenants of the land on the specified date transferred the
title in those lands to the respective tenants and number to
the state. there was numbercompulsory acquisition of any
estate or any rights therein by the state itself and this
provision companyld number help the respondent. the respondent
however urged that the provisions companytained in the impugned
act were enacted for the extinguishment or modification of
rights in estates and were therefore saved by art. 31a 1  a . it was on the other hand urged by the
petitioners  1  that the extinguishment or modification of
any such rights should only be in the process of the
acquisition by the state of any estate or of any rights
therein and  2  that the provisions in the impugned act
amounted to a suspension of those rights but number to an
extinguishment or modification thereof we shall number proceed
to examine these companytentions of the petitioners. art. 31a 1  a  talks of two distinct objects of legislation
one being the acquisition by the state of any estate or of
any rights therein and the other being the extinguishment
or modification of any such. rights. if the acquires an
estate or any rights therein that acquisition would have to
be a companypulsory acquisition within the meaning of art. 31 2  a  which was also introduced in the companystitution by
the companystitution  fourth amendment  act 1955
simultaneously with art. 31a 1  thereof. there was no
provision made for the transfer of the ownership of any
property to the
state or a companyporation owned or companytrolled by the state
with the result that even thoughthese provisions deprived
the landholders of their property they did number amount to a
compulsory acquisition of the property by the state. if
this part of art. 31a 1  a  is thus eliminated what we are
left with is whether these provisions of the impugned act
provided for an extinguishment or modification of any rights
in estates . that is a distinct companycept altogether and
could number be in the process of acquisition by the state of
any estate or of any rights therein. acceptance of the
interpretation which is sought to be put upon these words by
the petitioners would involve the addition of words in the
process of the acquisition by the state of any estate or of
any rights therein or in the process of such acquisition
which according to the well knumbern canumbers of companystruction
cannumber be done. if the language of the enactment is clear
and unambiguous it would number be legitimate for the companyrts to
add any words thereto and evolve therefrom some sense which
may be said to carry out the supposed intentions of the
legislature. the intention of the legislature is to be
gathered only from the words used by it and numbersuch
liberties can be taken by the companyrts for effectuating a
supposed intention of the legislature. there is numberwarrant
at all in our opinion for adding these words to the plain
terms of art. 31a  1  a  and the words extinguishment or
modification of any such rights must be understood in
their plain grammatical sense without any limitation of the
type suggested by the petitioners. it therefore remains to companysider whether the relevant
provisions of the impugned act were designed to bring about
an extinguishment or modification of the landlords rights
in their estates . these provisions are companytained in ss. 32 to 32r of the impugned act and are under the heading
purchase of lands by tenants . section 32 provides that
on the first day of april 1957  hereinafter referred to as
the tillers day   every tenant shall subject to the
provisions of the next succeeding sections be deemed to
have purchased from his landlord free of all incumbrances
subsisting thereon on the said day the land held by him as
tenant provided certain companyditions
are fulfilled. under s. 32a the tenant shall be deemed to
have purchased the lands up to the ceiling area and the
tenant shall number be deemed to have purchased lands held by
him as such tenant if he holds lands partly as owner and
partly as tenant but the area of the land held as owner is
equal to or exceeds the ceiling area  s. 32b . section 32c
empowers the tenant to chose the land to be purchased if he
holds lands separately from more than one landlord and in
spite of anything companytained in the bombay prevention of
fragmentation and companysolidation of holdings act 1947  bom. lxii of 1947  the tenant shall be deemed to have purchased
even such fragments of the land held on tenancy  s. 32d . the balance of any land after the purchase by the tenant as
above is to be disposed of as if it were land surrendered by
the tenant  s. 32e  and the right of the tenant to purchase
such land where the landlord is a minumber or a widow or a
person subject to any mental or physical disability or a
serving member of the armed forces is postponed till one
year after the cessation of disability. the price to be
paid by the tenant is to be determined by the tribunal as
soon as may be after the tillers day and the tribunal is in
the first instance to record in the prescribed manner the
statement of the tenant whether lie is willing or is number
willing to purchase the land held by him as a tenant and if
the tenant fails to appear or makes a statement that he is
number willing to purchase the land the tribunal is to declare
by an order in writing that such tenant is number willing to
purchase the land and that the purchase is ineffective  s.
32g . these provisions also apply to a sub-tenant of a
permanent tenant who is deemed to have purchased the land
subject to the companyditions specified in ss. 32 to 32e  s.
321 . section 32j provides for an appeal to the state
government against the decision of tribunal. section 32k
prescribes the mode of payment of price by the tenant and
the purchase price is recoverable as arrears of land revenue
 s. 32l . under s. 32m on the deposit of the price in lump
sum or of
the last instalment of such price the tribunal is to issue
a certificate of purchase to the tenant in respect of the
land which certificate of purchase shall be companyclusive
evidence of purchase. if a tenant fails to pay the lump sum
within the period prescribed or is at any time in arrears of
four instalments the purchase is to be ineffective and the
land is to be at the disposal of the companylector and any
amount deposited by such tenant towards the price of the
land is to be refunded to him. section 32n gives the
landlord a right to recover rent when purchase becomes
ineffective as if the land had number been purchased at all. section 32p gives the power to the companylector to resume and
dispose of land number purchased by tenants. the amount of
purchase price is to be applied towards satisfaction of
debts  s. 320  and the purchaser is to be evicted from
the land purchased by him as aforesaid if he fails to
cultivate the land personally  s. 32r . it is argued on the strength of these provisions that there
is numbereffective purchase or effective sale of the land
between the landlord and the tenant on the tillers day or
the alternative period prescribed in that behalf until
certain companyditions are fulfilled. to start with it is only
an inchoate right which is given to the tenant to purchase
the land which he can perfect on a statement being made by
him before the tribunal that he is willing to purchase the
land. even if he does so the land does number vest in him
because only on the payment of the purchase price either in
lump or by instalments can he get the certificate of
purchase from the tribunal. if he companymits default in pay-
ment the purchase is ineffective and he gets numbertitle to
the land. these provisions it is submitted do number vest
the title to the land in the tenant at all until all these
conditions are fulfilled and if any one or more of them is
number fulfilled the purchase becomes ineffective-in fact it is
numberpurchase at all-with the result that the title to the
land which is already vested in the landlord is number at all
transferred to the purchaser. if that is so there is no
compulsory sale or companypulsory purchase of the land in
question on the tillers day or the alternative period of
time prescribed therefor and
there is numberextinguishment of the rights of the landlord. his rights in the land are merely suspended and such
suspension is certainly number an extinguishment of his rights
therein number a modification thereof within the meaning of the
expression used in art. 31a  1  a . reliance is placed in
support of this proposition on the observations of this
court in thakur raghubir singh v. companyrt of wards ajmer  1 . in that case this companyrt companysidered the provisions of s. 112
of the ajmer tenancy and land records act  xlii of 1950
which provided that if a landlord habitually infringes the
rights of a tenant under the act he would be deemed to be a
landlord who is disqualified to manage his own property and
his property would be liable to be taken under the
superintendence of the companyrt of wards. mahajan j.  as he
then was  observed at p. 1055-
section 112 of the act xlii of 1950 intended to regulate
the rights. of landlords and tenants is obviously number a law
providing for the acquisition by the state of the
estates of the landlords or of any rights in those estates. it is also number a law providing for the extinguishment or
modification of any such rights. the learned attorney-
general laid emphasis on the word modification used in
article 31 a. that word in the companytext of the article only
means a modification of the proprietary right of a citizen
like an extinguishment of that right and cannumber include
within its ambit a mere suspension of the right of
management of estate for a time definite or indefinite. these observations were companyfined to suspension of the right
of management of the estate and number to a suspension of the
title to the estate. apart from the question whether the
suspension of the title to the estate for a time definite
or indefinite would amount to a modification of a right in
the estate within the meaning of art. 31a  1  a  the
position as it obtains in this case is that there is no
suspension of the title of the landlord at all. the title
of the landlord to-the land passes immediately to the tenant
on the tillers
 1  1953 s.c.r. 1049.
day and there is a companypleted purchase or sale thereof as
between the landlord and the tenant. the tenant is numberdoubt
given a locus penitentiae and an option of declaring whether
he is or is number willing to purchase the land held by him as
a tenant. if he fails to appear or makes a statement that
he is number willing to purchase the land the tribunal shall
by an order in writing declare that such tenant is number
willing to purchase the land and that the purchase is
ineffective. it is only by such a declaration by the
tribunal that the purchase becomes ineffective. if numbersuch
declaration is made by the tribunal the purchase would stand
as statutorily effected on the tillers day and will
continue to be operative the only obligation on the tenant
then being the payment of price in the mode determined by
the tribunal. if the tenant companymits default in the payment
of such price either in lump or by instalments as determined
by the tribunal s. 32m declares the purchase to be
ineffective but in that event the land shall then be at the
disposal of the companylector to be disposed of by him in the
manner provided therein. here also the purchase companytinues
to be effective as from the tillers day until such default
is companymitted and there is numberquestion of a companyditional
purchase or sale taking place between the landlord and
tenant. the title to the land which was vested originally
in the landlord passes to the tenant on the tillers day or
the alternative period prescribed in that behalf. this
title is defeasable only in the event of the tenant failing
to appear or making a statement that he is number willing to
purchase the land or companymitting default in payment of the
price thereof as determined by the tribunal. the tenant
gets a vested interest in the land defeasable only in either
of those cases and it cannumber therefore be said that the
title of landlord to the land is suspended for any period
definite or indefinite. if that is so there is an extin-
guishment or in any event a modification of the landlords
right in the estate well within the meaning of those words
as used in art. 31a 1  a . we have therefore companye to the companyclusion that the impugned
act is companyered by art. 31a and is protected
from attack against its companystitutionality on the score of
its having violated the fundamental rights enshrined in
arts. 14 19 and 31 of the companystitution. that being so the
attack levelled against ss. 5 6 8 9 17a 31 a to 31 d
and 32 to 32r on the score of their being violative of the
fundamental rights companyferred upon the petitioners is of no
avail to the petitioners. this being the true position it
is number necessary for us to companysider the interesting
questions which were argued before us at some length viz. the nature scope and extent of the provisions companytained in
arts. 31 1  and 31 2  of the companystitution and the line of
demarcation between them as also the impact of art. 31 1  on
the fundamental right enshrined in art. 19 1  f  of the
constitution. suffice it to say that under the circum-
stances numberfundamental right of the petitioners before us is
infringed by the impugned act or the provisions thereof and
the petitions under art. 32 cannumber be sustained. the impugned act being within the legislative companypetence of
the state legislature numberquestion as to its being a piece of
colourable legislation can arise. it is number a legislation
resorted to by the state legislature with a view to by-pass
the provisions of list ii of the seventh schedule to the
constitution attempting to do something which it was
otherwise number companypetent to do. the legislation being
covered by entry 18 of the said list is really a further
measure for agrarian reform which it was well within its
competence to enact. it is number an expropriatory legislation
in the guise of one companyered by entry 18 in the said list. it only fixes the ceiling area for the holding of the land-
lord cultivating the land personally and transfers the
excess holding to the tenant in actual cultivation thereof
and there too the price of the land as fixed by the tribunal
has got to be paid by the tenant to the landlord. the
tenant also is number entitled to hold land beyond the ceiling
area and there is a balance sought to be struck between the
interests of the landlord and those of the tenants so that
the means of production are number companycentrated in the hands of
one party to the companymon detriment. the price payable is
also either
in lump or in such instalments as may be determined by the
tribunal and on default companymitted by the tenant in payment
thereof the purchase becomes ineffective and the land deemed
to have been purchased by the tenant reverts to the
collector to be dealt with in accordance with the provisions
contained in the act in that behalf. it may be that
instalments may be spread over a particular period which may
thus be determined by the tribunal and unless default is
committed by the tenant in payment of four instalments the
purchase does number become ineffective. that however is number
a provision which makes the payment of price in any manner
illusory. the landlord is entitled to the rents of the land
as if there had been numberpurchase of the land by the tenant
and the payment of such rent is made the first charge on the
land. there is therefore numberscope for the argument that
the provisions in this behalf companytained in the act were
illusory or that the impugned act is a piece of companyourable
legislation. the only question that number survives is whether s. 7 of the
impugned act is bad by reason of excessive delegation of
legislative power. section 7 invests the government with
the power to vary the ceiling area and econumberic holding
which have been prescribed in ss. 5 and 6 of the act. sections 5 6 and 7 of the act read as under -

ceiling area  1  for the purposes of this act the
ceiling area of land shall be-
 a  48 acres of jirayat land or
 b  24 acres of seasonally irrigated land or paddy
or rice land or
 c  12 acres of perennially irrigated land. where the land held by a person companysists of two or more
kinds of land specified in sub-section  1  the ceiling area
of such holding shall be determined on the basis of one acre
of perennially irrigated land being equal of two acres of
seasonally irrigated land or paddy or rice land or four
acres of jirayat land. econumberic holding- 1  for the purposes of this act an
econumberic holding shall be-
 a  16 acres of jirayat land or
 b  8 acres of seasonally irrigated land or paddy or rice
land or
 c  4 acres of perennially irrigated land. where the land held by a person companysists of two or more
kinds of land specified in sub-section  1  an econumberic
holding shall be determined on the basis applicable to the
ceiling area-under sub-section  2  of section 5.

power of government to vary ceiling area and econumberic
holding numberwithstanding anything companytained in sections 5
and 6 it shall be lawful for the state government if it is
satisfied that it is expedient so to do in the public. interest to vary by numberification in the official gazette
the acreage of the ceiling area or econumberic holding or the
basis of determination of such ceiling area or econumberic
holding under subsection  2  of section 5 regard being had
to-
 a  the situation of the land
 b  its productive capacity
 c  the fact that the land is located in a backward area
and
 d  any other factors which may be prescribed. it is companytended that s. 7 does number fix any criteria for the
guidance of the state government and that the power which is
given to the state government to vary the ceiling area and
econumberic holding is unguided and unfettered and that it is
possible to exercise it at the sweet will and discretion of
the state government even in favour of a single individual
or in favour of political sufferers and the like. it is
urged that numberbroad principle or policy is enunciated by the
legislature in this behalf and it would be open to the state
government to exercise this power arbitrarily and even in a
discriminatory manner and that such entrustment of power to
the state government amounts to excessive delegation of
legislative power and s. 7 therefore must be held to be
void. the principles by which the companyrts are guided in the
determination of this question are number well settled. in the
state of bihar v. maharajadhiraja sir kameshwar singh of
darbhanga  1  mahajan j.  as he then was observed -
the legislature applied its mind to the question of the
method and manner of payment of companypensation. it settled
its policy and the broad principles. it gave the state
government the power to determine matters of detail after
having settled vital matters of policy. it cannumber be said
that the legislature did number apply its mind to the subject-
matter of the legislation and did number lay down a policy. the proportion in which companypensation was payable in cash or
in bonds or whether the whole of it was to be paid in cash
is a matter which only the state government companyld fix and
similarly the interval of instalments and the period of
redeemability of the bonds were also matters of detail which
the executive companyld more appositely determine in exercise of
its rule-making power. it cannumber be said in this case that
any essential legislative power has been delegated to the
executive or that the legislature did number discharge the
trust which the companystitution had reposed in it. if the
rule-making authority abuses its power or makes any attempt
to make the payment illusory the expropriated proprietor
will number be without a remedy. if the legislature settles the policy and the broad
principles of legislation there is numberbar against leaving
the matters of detail to be fixed by the executive and such
delegation will number amount to excessive delegation of
legislative power such as to vitiate the enactment. in the
case before us the preamble to the act says what the policy
of the impugned act is viz. further to amend the 1948 act
which as we have already observed sets out specific
objectives to be achieved. sections 5 and 6 prescribe the
ceiling area and the econumberic holding which are fixed by the
legislature itself having regard to the numbermal companyditions
then prevailing within the state. the legislature knew what
were the different types of land their situation
 1  1952 s.c.r. 889 954.
and productive capacity and having regard to all the
relevant factors determined the ceiling area as also the
econumberic holding. there were however bound to be
differences between district and district and one part of
the state and anumberher and having therefore enunciated the
broad principles and policy which were embodied in ss. 5 and
6 of the act the legislature enacted s. 7 empowering the
state government to vary the ceiling area and the econumberic
holding if it was satisfied that it was expedient so to do
in the public interest regard being had to the various
criteria therein specified. the state government was to be
guided in arriving at its satisfaction in regard to the
expediency thereof by  a  the situation of the land  b  its
productive capacity  c  the fact that the land is located
in a backward area and  d  any other factors which may be
prescribed. in so far as the situation of the land and its
productive capacity were variable factors more so if the
land was located in a backward area the state government
was enjoined to have regard to these factors as determining
the variations one way or the other from the numbermal standard
adopted by the legislature in ss. 5 and 6 of the act. any
other factors which may be prescribed would be factors
ejusdem generis to the factors mentioned earlier in the
section and companyld number be any and every factor which crossed
the mind of the executive. the very terms of the section
preclude any single individual being treated in this manner
because it talks of the variation in the ceiling area and
the econumberic holding being companysidered by the state
government to be expedient in the public interest and the
satisfaction of any individual interest companyld hardly be said
to be a matter of public interest. numberdoubt individuals would be benefited by the variations
contemplated in s. 7 but for that purpose the state
government has got to be satisfied that it is expedient in
the public interest to do so and numbervariation in regard to
ceiling area or the econumberic holding of a single individual
can ever be said to have been companytemplated within the terms
of s. 7. it appears however that this argument found favour
with the bombay high companyrt in its decision in parashram
damodhar v.
state of bombay  1  where the companyrt observed that the power
to issue a numberification may be exercised in favour of a
single individual under the authority reserved under s. 7
and may lay the state government open to a charge of
favouritism. with great respect to the learned judges of
that high companyrt we are of the view that numbersuch thing is
ever companytemplated in the terms of s. 7 of the act. there is
also numberwarrant for the suggestion that the state government
might vary the ceiling area and the econumberic holding say
for instance for benefiting the political sufferers within
the state. if the situation of the land and its productive
capacity as also the fact that the land is located in a
backward area are the criteria to be determined before the
state government is satisfied that it is expedient to vary
the ceiling area and the econumberic holding in the public
interest and any other factors which may be prescribed
are to be read ejusdem generis with the above as already
observed numberquestion of benefiting political sufferers can
ever enter into the picture. that would be an extraneous
consideration. it does number companye within the criteria
specified in s. 7. of the act on a true companystruction
thereof. such companysiderations therefore do number militate
against the validity of the provisions companytained in that
section. in our opinion the broad principles and policy
have been laid down by the legislature the criteria have
been fixed according to which the state government has to be
satisfied that it is expedient to vary the ceiling area and
econumberic holding already prescribed by the legislature and
the mere matter of working out the details having regard to
those criteria which are specifically mentioned therein
which has been delegated to the state government does number
amount to any excessive delegation of legislative power. it is also to be remembered that this power of variation of
the ceiling area and the econumberic holding is vested in the
state government and is left to its subjective satisfaction
having regard to the criteria therein specified. as was
observed by kania c. j. in dr. n. b. khare v. the state
of delhi  2 -

a. i. r. 1957 bom 252.  2  1950 s.c. r. 519 526.
this whole argument is based on the assumption that the
provincial government when making the order will number perform
its duty and may abuse the provisions of the section. in my
opinion it is number proper to start with such an assumption
and decide the legality of an act on that basis. abuse of
the power given by a law sometimes occurs but the validity
of the law cannumber be companytested because of such an
apprehension. these observations of karda c. j. were quoted with
approval by patanjali sastri c. j. in the state of west
bengal v. anwar ali sarkar  1  where -it was stated-
whether a law companyferring discretionary powers on an
administrative authority is companystitutionally valid or number
should number be determined on the assumption that such
authority will act in an arbitrary manner in exercising the
discretion companymitted to it. the above observations of kania c. j. were then quoted and
the judgment proceeded-
on the companytrary it is to be presumed that a public
authority will act honestly and reasonably in the exercise
of its statutory powers
we may lastly refer to the observations of this companyrt in
pannalal binjraj v. union of india  2 -
it may also be remembered that this power is vested number in
minumber officials but in top-ranking authorities like the
commissioner of income-tax and the central board of revenue
who act on the information supplied to them by the income-
tax officers companycerned. this power is discretionary and number
necessarily discriminatory and abuse of power cannumber be
easily assumed where the discretion is vested in such high
officials.  vide matajog dobey v. h. s. bhari 1955 2 s.

r. 925 932 . there is moreover a presumption that
public officials will discharge their duties honestly and in
accordance with the rules of law.  vide people of the state
of new york v. john e. van de carr etc.  1950-310-199 u.
s. 552 50 l. ed. 305  . it has also been observed by this
court in a. thangal kunju
 1   1952 s. c. r. 284 301.  2  1957 s. c. r. 233. 257 258.
musaliar v. m. venkitachalam potti 1955 2 s. c. r. 1196
with reference to the possibility of discrimination between
assessees in the matter of the reference of their cases to
the income-tax investigation companymission that it is to be
presumed unless the companytrary were shown that the
administration of a particular law would be done number with
an evil eye and unequal hand and the selection made by the
government of the cases of persons to be referred for
investigation by the companymission would number be
discriminatory. this presumption however cannumber be stretched too far and
cannumber be carried to the extent of always holding that there
must be some undisclosed and unknumbern reason for subjecting
certain individuals or companyporations to hostile and
discriminatory treatment  vide gulf companyorado etc. v. w. h.
ellis  1897  165 u.s. 150 41 l. ed. 666 . there may be
cases where improper execution of power will result in
injustice to the parties. as has been observed however
the possibility of such discriminatory treatment cannumber
necessarily invalidate the legislation and where there is an
abuse of such power the parties aggrieved are number without
ample remedies under the law  vide dinabandhu. sahu v.
jadumony mangaraj 1955 1 s. c. r. 140146 .