A provision which imposes an unreasonable restriction upon the right of a landlord to hold property is void and cannot be saved by Articles 31-A or 31-B of the Constitution.

Headnote:
BOMBAY TENANCY AND AGRICULTURAL LANDS ACT - SECTION 34(2A)(1) - Vires - Unreasonable Restriction on Right to Property - Not Saved by Articles 31-A or 31-B of the Constitution.
Fact of the Case:

The petitioner, a landlord, challenged the vires of Section 34(2A)(1) of the Bombay Tenancy and Agricultural Lands Act, 1948, as amended, which required landlords to show that their names were entered in the Record of Rights on 1st January 1952 in order to terminate the tenancy of a protected tenant. The petitioner's lands were located in an area where no Record of Rights had been prepared.
Finding of the Court:

The Court held that Section 34(2A)(1) was ultra vires the State Legislature as it infringed the right to property conferred upon the petitioner by the Constitution and was not saved by Articles 31-A or 31-B of the Constitution.
Issues: 1. Whether Section 34(2A)(1) of the Bombay Tenancy and Agricultural Lands Act, 1948, is ultra vires the State Legislature? 2. Whether Section 34(2A)(1) is saved by Articles 31-A or 31-B of the Constitution?
Ratio Decidendi: 1. The Court held that Section 34(2A)(1) was unreasonable as it imposed a condition upon the petitioner to show that his name was entered in the Record of Rights, which did not exist. 2. The Court held that Article 31-A did not protect the impugned provisions against the vice of infringing the Constitutional guarantee of right to property as the restriction imposed by the impugned provision did not amount to extinguishment or modification of the proprietary right. 3. The Court held that Article 31-B did not assist the State in maintaining that Section 34(2A)(1) was intra vires as the protection under Article 31-B could only apply to the Acts as they stood at the date when the Constitution (First Amendment) Act, 1951, was enacted.
Final Decision: The Court allowed the petition and held that Section 34(2A)(1) of the Bombay Tenancy and Agricultural Lands Act, 1948, was void in so far as it required landlords owning lands in areas in which Record of Rights is not prepared to show that their names were entered in the Record of Rights on 1st January 1952.

Judgment -

Shah , JJ.

1. The petitioner challenges by this application the vires of Section 34(2A)(1) of the Bombay Tenancy and Agricultural Lands Act, 1948, as amended by Section 8(3) of Bombay Act 33 of 1952.

2. The facts which give rise to the petition may be set out: The lands in dispute are Section NOS. 13 and 21 of the village of Purar and belong to the petitioner Abdul Rahiman Jamal-uddin Hurjuk. The first respondent is a protected tenant of these lands. The petitioner filed Tenancy Application No. 29 of 1954-55 in the Court of the Mamlatdar of Mangaon, District Kolaba, for an order against the first respondent for possession under Section 29(2) read with Section 34(l)(i) of the Bombay Tenancy and Agricultural Lands Act, 1948, alleging that the petitioner had a large family and that the income derived as rent from his other lands was not adequate for the maintenance of the members of his family and that he wanted the suit lands for personal cultivation. The petitioner submitted that he had terminated the tenancy by serving one years notice upon the first respondent as required by law.

3. The application was resisted by the first respondent. He claimed that he as a protected tenant of the lands, that the name of the petitioner was not entered in the Record of Eights on 1st January 1952 as Kabjedar and the petitioner could not sue for possession, that the lands were not required bona fide for personal cultivation by the petitioner, that the tenancy was not terminated by notice as required by law, and that in any event the notice was invalid.

4. The Mamlatdar passed an order for possession in favour of the petitioner holding that the name of the petitioner was entered in the Record of Rights on 1st January 1952, that the land was required bona fide for personal cultivation and that the tenancy had been duly terminated by proper notice.

5. Against that order an appeal was preferred to the District Deputy Collector, Mahad Division, Kolaba. The District Deputy Collector dismissed the appeal. In the view of the Deputy Collector the income from the suit lands would constitute the principal source of the petitioners income and that the assessment receipt produced by the petitioner evidenced the requisite entry in the Record of Rights.

6. Against the order passed by the Deputy Collector dismissing the appeal, the first respondent invoked the revisional jurisdiction of the Bombay Revenue Tribunal. A Full Bench of the Tribunal held that fulfilment of the requirement prescribed by Section 34(2A)(1) constituted a condition and the petitioner had no remedy for enforcement of his right unless the condition was fulfilled.

7. It is undisputed that in the area in which the lands are situate the Record of Rights under Ch. X-A of the Bomoay Land Revenue Code have not been prepared. Having regard to the circumstances that Record of Rights arc not prepared and Section 34(2-A)(l) of the Tenancy Act imposes an obligation upon a landlord to show that his name was entered in the Record of Rights on 1st January 1952, before he can terminate the tenancy of a protected tenant, the Government of Bombay have issued executive instructions that in those areas where no Record of Rights are maintained the landlord may be permitted to prove that he was the owner of the land on 1st January 1952. The Tribunal observed that the Legislature having failed to incorporate a provision which rendered it unnecessary for landlords in areas where the Record of Rights were not maintained to show that their names were entered in the Record of Rights on 1st January 1952, they would not be exercising their jurisdiction properly if a benevolent interpretation was given of the provisions contained in Clause (1) of Sub-section (2-A) of Section 34 of the Act. The order passed by the Tribunal setting aside the orders of the Mamlatdar and the District Deputy Collector and dismissing the application filed by the petitioner is challenged in this application under Art. 227 of the Constitu

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