Salubai Ramchandra and Ors v. Chandu Saju — 1965 DIGILAW 53 (BOM)

judgment Abhyankar, J. (1) This order will dispose of a batch of 28 Special civil Application which raise a common question of law and also interpretation of the constitution. These special civil applications are:- (2) The common question of law that arises in all these case is whether a landholder who has commenced proceedings for terminating the lease of a tenant under section 38 (1) of the Bombay Tenancy and Agricultural Lands [Vidarbha Region and Kutch Area] Act, 1958, and for possession of that land is not entitled to any relief in respect of the land held by this tenant if the said tenant of was a protected lessee whose rights as such protected lessee , had come into existences of before the landholder acquired such and by the partition., and such Acquistion of land by partition took place after the first day of the August 1953. (3) It is common ground in all these cases that the landholder who claims possession of the land claims this rights on the ground that as a result of partition of in the joint family particular land had been allotted to his share and therefore he or she was entitled to terminate the lease of the tenant and get possession according to law. (4) Hereafter, the Bombay Tenancy and Agricultural Lands [Vidarbha Region and Kutch Area] Act, 1958, i.e. Bombay Act NO. XCIX of 1958 will be referred to as the Vidarbha act because it in operative in the eights districts of Vibarbha Region of the State of Maharashtra. (5) The Legislative Assembly of the reorganized state of Bombay passed by the Vibardha act which come into force in this regain on 30th December 1958. The Act was published in the Extraordinary Gazette of the Bombay Government Gazette on December 26, 1958. It is reproduced in the regulate issue of the Bombay Government Gazette of January 1, 1959, in Part IV, page 1 to 69. On page 1 of the Gazette, the text of the act, it preceded by the following note under the signature of the Secretary to the Government of Bombay Legal Department. It is reproduced in the regulate issue of the Bombay Government Gazette of January 1, 1959, in Part IV, page 1 to 69. On page 1 of the Gazette, the text of the act, it preceded by the following note under the signature of the Secretary to the Government of Bombay Legal Department. ""The Following Act of the Bombay Legislature, having been assented to by the President on the 25th December 1958, is hereby published for general information."" (6) The Preamble to the Act is divided into two paragraphs and it is to the following effect: ""WHEREAS it is expedient to amend to the law which Governs of the relations, of landlords and tenants of agricultural land and suits used for allied pursuits in the Vidarbha Region and the Kutch area of the state of the Bombay with the view of bringing the status of and rights to tenants as far as possible in line with those prevailing in certain other parts of the state: AND WHEREAS it is expedient in the interest of the general public to regulate and impose restriction of on the transfer of agricultural lands and to dwelling houses and lands appurtenant thereto the sites used for allied pursuits belonging to or occupied by agriculturists, agricultural labour, artisans and persons carrying on allied pursuits in the Vidarbha Region and the Kutck area of the state of the Bombay and to provide for the assumption of management of agricultural lands insertion circumstances and to make provisions of each certain matter hereinafter appearing: it is hereby enacted in the Ninth Years of the Republic of India as follows:"". (7) Section 2 of the Act gives definitions of and sub - section (34) of section 2 states, the words and expressions used in this , act but not defined shall have the meanings assigned to them in the code and the Transfer of property act, 1882, as the case may be. But there is an overriding caution in beginning of the definition section, that this should be so unless the context requires otherwise. The code referred to in sub -section [34] means under section 2 [7], the Madhya Pradesh Land Revenue Code, 1954. But there is an overriding caution in beginning of the definition section, that this should be so unless the context requires otherwise. The code referred to in sub -section [34] means under section 2 [7], the Madhya Pradesh Land Revenue Code, 1954. (8) Section 38, the Interpretation of which is in issue in these cases originally stood in is various sub - section as follows: ""38 [1], Notwithstanding anythings contained in section 9 or 19 but subject of the provisions of sub - section [2] to [5] a landlord may after giving to the tenant one years notice in writing at anytime within two years notice in from the commencement of this act and from the application for possession as provided in sub - section [2] of the section 36 terminate the tenancy of the land held by a tenant other than an occupancy tenant if he bona fed requires the land for cultivating it personally. (2) Where the landlord is of the following category, namely:- (a) a minor, (b) a widow, (c) a serving member of the armed forces. (d) a person subject to any physical or mental disability then if he has not given a notice and made an application as required by sub - section (1),such notice may be given and such application may be made- (A) by the landlord within the one year from the date of which:- [1] in the case of category [a] he attains majority: [2] in the case of category [c] he ceases to serve inset force. [3] in the case of category [d] he ceases to be subject to such physical f or mental disability and (B) in the case of widow by the succession - in - title within, one year from the date on which the widows interest in the land ceases to exists: Provided that where a person of such category is member of a joint family, the provisions of this sub - section shall not apply it at least one member of the joint family is outside the categories mentioned intuit sub section unless the share of such person in the joint family has been separate by the mentioned bound before the prescribed date and the Tahsildar on inquiry is satisfied that the share of such person in this land separated having or such person in the land is separated having regard to the area, assessment, classification as the share of that person in the entire joint family property of and not in the larger proportion. Provided further that where land is held by two or more joint landlords, the provisions of this sub - section shall not apply if at least one joint holder is outside the categorizes specified in causes [a] to [do] of this sub - section. (3) The rights to a landlord to terminate tenancy under sub - section [1] shall be subject to the following conditions namely:- (A) If the landlord at the date of the on which the notices is given and on the date on which it expires hand other land of his own or has not been cultivating personally any other land, he shall be entitled take possession of the land leased to the extent of the three family holdings. (B) If the land cultivated by him personally is less than three family holdings, the landlord shall be entitled to take possession of so much area of the land leased as will be sufficient to make up the areas in his possession to the extent of three family holdings. (B) If the land cultivated by him personally is less than three family holdings, the landlord shall be entitled to take possession of so much area of the land leased as will be sufficient to make up the areas in his possession to the extent of three family holdings. (D) The land leased stands in the record - of - rights or in any public record or similar revenue of record on the 1st day of the August 1957 and thereafter during the period between the said that the of the commencement of this Act in the name of the landlord of himself or any of his ancestors of if the landlord is am member of such family. (E) If more tenancies then one of are held under the same landlord, then the landlord shall be competent to terminate only the tenancy or tenancies which are the shortest in point of duration. (4) In no case a tenancy shall be terminated:- (A) In such manner as will result in leaving with the tenant after termination of less then held the areas of the leased to him: Provided that where the land held by a landlord tenure of holder does not exceed one third of as family holding and the landlord does not cultivate personally any other land as attendant or cultivates personally and other land as tenant or cultivates personally only so much land as would not along with the land held by the him as tenure holder exceed one - third of a family holding exceed shall be entitled to resume for personal cultivation, the entire land leased by him. (B) In such a manner as will result in a contravention of the Bombay prevention of Fragmentation and consolidation of Holdings act, 1947 or making any part of he land leased a fragment within the meaning of that act, (C) If the tenant has become a member of a co - operatives farming society and so land as he continues of to be such member or. (D) It the tenant is a co - operatives framing society. (5)The tenancy of the any land lift with the tenant after the termination of the tenancy under this section shall not be at any time after words be liable to termination of against on the ground that the landlord bona field requires that land for personal cultivation. (D) It the tenant is a co - operatives framing society. (5)The tenancy of the any land lift with the tenant after the termination of the tenancy under this section shall not be at any time after words be liable to termination of against on the ground that the landlord bona field requires that land for personal cultivation. (6) If, in consequences of the termination of the tenancy of under this section, any part of the land leased is left with the tenant, the rent shall be apportioned in the prescribed manner in proportion to the area of the law left with the tenant. (7) Nothing in this section shall confer on a tenure - holder who has acquired and land by transfer after the 1st day of the August 1953 a right to the terminate of the tenancy of tenant who is a protected lessee and whose right as such protected lessee had come to existences before the transfer"". (9) This section as well as other parts of the Act have been amended from time to time and the important amendment of will which we are concerned was made in sub - section [7] of the section 38 of the by Maharashtra act No. XLIV of 1963. This amending act received also the assent of the president an was first published after the receiving such assent on the 16th December 1963, which would therefore be the date on which the Amending act come in to force. Section 2 of the Maharashtra Act XLIV of 1963 amended the provisions of section 38 of Vidabha act by adding words or partition in two places of in the original section. As amended, sub section [7] of section 38 would read as follows. Section 2 of the Maharashtra Act XLIV of 1963 amended the provisions of section 38 of Vidabha act by adding words or partition in two places of in the original section. As amended, sub section [7] of section 38 would read as follows. ""38 [7] Nothing in this section shall confer on tenure - holder who has acquired any land by transfer or partition after the 1st day of the august 1953 a rights to terminate the tenancy of tenant who is protected lessee and whose right as such protected lessee had come into existence of before such transfer or partition"" The Amending act XLIV of 1963 further provides by its sixth section that section 38 and 39 of he principal act as amended by that act shall also apply d as respect of all suits appeals and proceedings which was pending before the authority, tribunal or court onto date of the commencement of this act. This the result of the Amending act so far as section 38 is concerned would be that not affect the because finally decided by any authority, Tribunal or court before by Authority amending provisions would govern the disposal of the all suits appeals and the proceeding which maybe pending before the commencement of the amending act viz., 16th December 1963. (10) it is not disputed in all these petitioner that proceedings were pending before one authority or another when the amendment of made inspection 38 become of applicable, by reason of the provisions of Act XLIV of 1963. (11) The principal argument is divided into two branches. It is first contended that the new provisions of which apparently includes acquisition of land as result partion amongst of members of joint family violates or abridges the rights of the landholders guaranteed to them under Article 14, 19 and 31 of the constitution, and therefore they are ultra vires of the provisions of the powers Legislature of the state. While including partition as mode of acquisition of land in section 38 [7] of the Vidarbha Act the Legislature of invaded the inherent of rights of the members of the joint family of effect disruption of theirs joint status and get the joint family property divided according of their shares and interest to an unreasonable extent. While including partition as mode of acquisition of land in section 38 [7] of the Vidarbha Act the Legislature of invaded the inherent of rights of the members of the joint family of effect disruption of theirs joint status and get the joint family property divided according of their shares and interest to an unreasonable extent. This is because the allot of the land at the joint family partition which is effected after 1st August 1953 and after the tenant on land had acquired the statue of the protected lease, created an invidious discrimination of between create the partition effect prior to 1st august 1953 and after 1st August 1953 and thus is violative of equal protection of law under article of 14 of the constitution. It is also urged that there is no particular object of be achieved with references to this date of partion or who come on and such date. It is also urged that there is an inherent right in member of joint family to hold that enjoy his property without detriment of and the restriction put of the members of the joint family of in preventing him from terminating the tenancy of the protected lessee in an unreasonable restriction of under Article 19 of the constitution. The restriction of amount in effects to acquisition of property or atone rate drastic to acquisition of rights in property of members of abridgment of rights in who members of the joint family for which there is no justification bemuses it is done without any compensation. Thus, the three Article of the constitution of which are alleged to be violated by the amending which provisions of the act as Article 14, 19 of and 31 of the constitution. (12) The second branch of the argument is that even assuming that the challenge of under Article 14, Article 19 or Article 31 of isnt possible as matter of construction of the amended section, it property interpreted a member of the joint family cannot be said to ""acquire"" land as result of partition effected amongst of members of the joint family. A member of the joint family has unity of interest of ownership possession and enjoyment of the and what happens in the case of the jaint Hindu family it is declaration of his intention to separate or in other words a declaration of the intentions to disrupt of the joint status and on declaration of the such intention it is only the made of enjoyment of property that is altered but there is no acquisitions of any land as a result of partition. (13) AS there was a challenged to the vires of the act which amended the provisions of sub - section [7] of section 38, the state o Maharashtra was imploded and a notice was also issued to the advocate General. Arguments regarding the first question have been addressed on behalf of the state as well as the respondents - tenants of reply to the submissions made by the learned counsel for the petitioners - landlords. (14) The principal contention on behalf of the opponents to the challenge grounded on the basis of violation of the guarantees under Article 14, Article 19 or Article 31 of the constitution was the effect of the Article 31 - A of the constitution was the effect of the by the constitution as introduced by the constitution [first amendment] as act 1951, and amended by the constitution [fourth amendment] act 1955, a and the constitution [seventeenth amendment] act 1964. According to the respondents the vidarbha, act as originally passed or after the its amendment by the Maharashtra act XLIV of 1963, is immune from the challenge is on the ground that the any it is provisions of void being inconsistent of with or because it take away or abridges of any rights conferred by Articles 14, 19 or 31 of the constitution not withstanding anythings of contained in Article 13 of the constitution of because the Vidarbha act is law of providing for extinguishment of the modifications of rights in an estate. Article 31 - A prior of the further modification by the constitution. [Seventeenth amendment] Act, 1964 stood as follows: ""31 - A (1) Notwithstanding anything contained in Article 13, no law provided for:- (A) the acqusition by the state of any f estate or of any rights therein or the extinguishment or modification of any such rights, or. Article 31 - A prior of the further modification by the constitution. [Seventeenth amendment] Act, 1964 stood as follows: ""31 - A (1) Notwithstanding anything contained in Article 13, no law provided for:- (A) the acqusition by the state of any f estate or of any rights therein or the extinguishment or modification of any such rights, or. (B) the taking over the management of any property by the state of the limited period either in the public interest or in order to secure in the proper management of property. (C) the amalgamation of woo more corporations of either in the public interest or in order to issue secure of the proper management of any of the corporations of, (D) the extinguishment or modifications of any rights of managing agents, secretaries and treasurers, managing directors, directors or manager of corporation or of any voting rights to shareholder thereof or (E) the extingushiment of modification of any rights accruing by virtue of any agreement lease or license of for the purpose of searching for or winning, any mineral or mineral oil, or winning, any mineral or mineral oil, or the premature termination of cancellation of any such agreement else or licenses shall be deemed to be void on the ground that it is inconsistent of with or takes away of the abridges any of the rights conferred by the articles 14, Article 19 or Article 31: provided that where such law is law made by the legislature of state the provisions of the this article shall not apply thereof unless such law having been reserved for the consideration of the president has received his assent. (2) In this article:- (A) the expression estate"" shall in relation to any local area have the same of meaning as that the local expression of the it local equivalent of has in the existing law relating of land tenures of in force of in that area, and shall and also include any jagir, in am or muafi or other similar grant [and in the state of Madras and Kerala any janmam rights] (B) the expression rights in relation to the an estate, shall be include of the any rights of vesting in a properties, sub - proprietor under - proprietor tenure - holder [raiyat, under - raiyat] or other intermediary and the any rights or privileges [in respect of land revenue] (15) According to the respondents. The land with respect to which the vidabha Act makes a provision of fully answers what is decried as estate in clauses 2 [a] of art. 31 - A anti has been so held by the supreme court in its decision of reported in Mahadeo v. State of Bombay AIR 1961 SC 1517 . (16) In view of this position of judicial pronouncement of which prima facies of decided the question of vires of the impugned legislation, the learned council of for the petitioners Shri Natu made certain submissions which do not appear to have been pressed or agitated before the supreme court in the above case. As there has been no reference to any such argument, Shri Natu was heard to in details in amplification of his submissions on all these matters. (17) According to Shri Nat, the Vidarbha Act i.e., the Bombay Tenancy and Agricultural Lands [Vidarbha Region and Kutch Area] Act, 1958 i.e., Bombay Act XCIX of 1958, is not a piece of legislation of the which could be included in the proviso to the first clause of Article 31 -A. In other works the contention raised by Shri Nat is that the Vidarbha Act isnt law made by the legislature for the State because it was not reserved for consideration oft President and hasnt received the assent the president and has president. This submission is based on the manner of in which the Bombay Act XCIX o 1958 come to be published both in the Exordinary and ordinary Government of Gazette with the note of the Secretary government Gazette with not of the Secretary to the Government of Bombay. This submission is based on the manner of in which the Bombay Act XCIX o 1958 come to be published both in the Exordinary and ordinary Government of Gazette with the note of the Secretary government Gazette with not of the Secretary to the Government of Bombay. Legal department. That note states ""The Following Act of the Bombay legislature having been assented to y the president on the 25th December 1958, is hereby published for general information."" Shri Nat, a contention is that what seem to the have been assented to by the president to it Act of Bombay Legislature and not the Bill as passed to the tow Houses, of Legislature of then state of legislate, it should not only be passed governor of the State. It is only the assent of the government the Bill passed by the Legislature of state which makes that the Legislation an Act oft state Legislature. The argument further says that there is no provision if the constitution for reserving an Act for the consideration of the president or for the assent of the president. Under article 200 of the constitution when a bill has been passed by the Legislative of the state is shall be presented to the Governor and the Governor shall declare either that the assent to the from or that he reserves the bills for the consideration of with the two provisos to Article 200 when are not called in aid here. Then Article 201 provides for the consideration of the president, the president shall declare either that he assent the bill or that the withholds assent therefore. Basing his argument on the text of these two article of he constitution it was argued on behalf of the petitioners that the endorsement appearing under the signature of the secretary to the government of Bombay, legal Department on in the Gazette Notification doesnt shows that the Bills of the Bombay Legislature was assented to the day by the Persian or was reserved for the consideration of president but it specifically referred to the act of the Bombay legislature having been assented to the president therefore according to the learned counsel for the petitioners this is not a law which could be said to the have been reserved for the consideration of the president or to have received his assent. (18) Theres no doubt that it is only a Bill by the Legislature of the state whether it is single or bicameral which cane reserved for the consideration of the president and for assent of the president. There is no provision in either of the two Article 200 and 20 or any article of the constitution which permits the governor of the sea t assent to Bill passed by the legislature to the state of and present to the obtain a further assent. We may mention here that this contention was not raised in the petitioners but was allowed to be argued at the hearing because according it was a mere matter or interpretation. It is not a mere matter of interpretation. As far as we can see it is a question of the fact in each case whether a governor of a state assented to a bill passed by the Legislature of a state or not. It is also a question of the fact n each case whether what was reserved for the consideration of the president was the bill as passed by the legislature of the state assent of the president was so obtained to the bills and or to an act. It view in the presumption of an official act being done according to the procedure prescribed in this lay it cannot possibly be presumed that in the case the Governor of the state of Bombay first assented to the Bill as passed by the two houses of legislature of and then reserved it for the consideration or for obtaining the assent of the president. The whole argument of the is founded on a very endorsement of above the text of the act where the secretary of the legal Department has stated that ""the following Act of he Bombay legislature having been assented to by the president on the 25th December 1958, is hereby published for general information"". It is not difficult to understand what this endorsement. In the first places, this is not a pat of the text of the act. It is an intimation for the information of general public that this was a piece of the legislation which was reserved for the consideration of the president was assented to by the president on a particular date. In the first places, this is not a pat of the text of the act. It is an intimation for the information of general public that this was a piece of the legislation which was reserved for the consideration of the president was assented to by the president on a particular date. It is true that the secretary has described this an act of the Bombay legislature, but this description of equally fits in with the legislation being called an act after the bill passed by the state legislatures received the assent of the president for whose consideration it was reserved by the Governor. What the endorsement, in other words, says is that the legislation of the Bombay legislature in the from in bill was reserved for the true in therefor of the bill was reserved for the consideration by the president and assented to by him and has now therefore become an act of the Bombay legislature. I do not think any other interpretation impossible and the argument that the law is outside article 31 - A of the consideration because of it is an act of the legislature and could not reserved for the assent of the president must therefore be rejected. (19) The next contention is that the decision of the supreme court in Mahadeo Kolhe's case, AIR 1961 SC 1517 , proceeds on the footing that the provisions of law relating to land tenure which is relevant for consideration is the Madhya Pradesh land Revenue code and it is the provision of the code which has been examined to find what the rights is respect of an 'Estate"" as understood in Article 31 - A [2] [a] of the constitution. (20) Article 31 - A [2] [a] prior to its amendment by the constitution [Seventeenth Amendment] Act, 1964 defined 'estate' as follows: ""the expression 'estate' shall, in relation to any local area have the same meaning as that expression or its local equivalent has in n the existing law relating to land tenures in force in that area"". What had to be found therefore was whether there was local equivalent to the expression 'estate' or the expression 'estate' used in the existing law relating to land tenures in force in particular area with respect to which the legislation was made come to be examined. What had to be found therefore was whether there was local equivalent to the expression 'estate' or the expression 'estate' used in the existing law relating to land tenures in force in particular area with respect to which the legislation was made come to be examined. Now, the expression 'the existing law relating in the land tenures in force' must be understood in the seen in which the words 'existing law' have been used in the Article 366 [10] of the constitution. ""Existing law"" rule or regulation Ordinance, order, bye-law, rule or regulations passed or made before the commencement of the this constitution by any legislature, authority or person having powers to make such law, ordinance order bye - law, rule or regulation. In other words reference to 'existing law relating to land tenures in force"" would mean was in force on the date of the coming into force of the constitution., i.e., on 26th January 1950. Shir Nat draws support of the this contention for decision of the supreme court in K. Kunhikoman v. State of Kerala. AIR 1962 SC 723 paras 11 and 12 at pp. 730 731. This contention appears to be corrects. It is also clear that the M.P. Land Revenue Code, 1954 become law in the then state of Madhya Preadesh in respect of the certain provisions only on the 12th February 1955 and in respect of other provisions on 1st October 1955. The provisions of the M.P. Land Revenue Code, therefore may not strictly satisfy the description of being an existing law within the meaning of Article 31 - A [2] [a] of the constitution. (21) Shri Nat, therefore, invited attention to the provisions of the law relating to land tenures which was applicable to the four districts of Berar on the before 26th January 1950. On that date, the Bera Land Revenue Code was applicable to the four districts of Berar viz., Yeotmal, Akola, amraoti and Buldana. Section 38 [7] of the Vidarbha Act affect of the rights to landholder to termite the tenancies of tenets who were protected lessees within the meaning to section 2 [ 25] of the Vidabha of act and that definition of the 'protected lessee' in its turn, make a reference to section 6 [2] of the same act. Section 38 [7] of the Vidarbha Act affect of the rights to landholder to termite the tenancies of tenets who were protected lessees within the meaning to section 2 [ 25] of the Vidabha of act and that definition of the 'protected lessee' in its turn, make a reference to section 6 [2] of the same act. Under this latter provision, for the purposes of the Tenancy Act a person shall be recognized to the be protected lessee if such person was immediately, before the commencement of this act deemed to the protected lessee under section 3 of the Berar Regulation of Agricultural leases Act 1951. The Berar Regulation of Agricultural leases act, 1951 was a piece of the tenancy legislation which was operative only in the true four districts of Bera mentioned above. Therefore, the law relating to land tenures which is relevant for consideration in interposing section 38 [7] as existing law in force in the area would be the Bera Land Revenues code of 1928. For this reason the provisions of the Berar Land Revenue code have to be examined. (22) According to Shri, Nat under the Berar Land Revenues Code land tenures differed according as land was alienated land or unlamented land. Section 2 [2] defines 'Alienated land' and mean land in respect of which the crown has assigned in whole or in parts it right to receive land- revise equal in amount to the fair assessment, and the person to whom such assignment is made is called the ""Superior holder"". The Berar Land Revenue, code also defines ""Holder"" in section 2 [4] and 'holding' in section 2 [5] of the code. Then comes the means of a portion of the earth's sure and where land is referred to the this law, it shall be deemed to include to in the things attached to or permanently fasted to anything's attach to such land. Section 54 of the Berar Land Revenue Code describes the position of the occupant. That section is as follows: ""54 (1) The person who acquired the right to occupy the and under section 53 is called an occupant of sent land, and shall hold it is accordance's with the provisions of this law. Section 54 of the Berar Land Revenue Code describes the position of the occupant. That section is as follows: ""54 (1) The person who acquired the right to occupy the and under section 53 is called an occupant of sent land, and shall hold it is accordance's with the provisions of this law. (2) All the person who prior, to the commencement of this law, agricultural land under the style of 'occupant' or have been granted or have held rights in unlamented non - agricultural land under the style of 'occupant' or under leases which entitled them to hold in perpetuity, shall be deemed to be occupants within the meaning of this section, to Berar and all restrictions hitherto impose on their and right shall henceforth be of on effect in their far as they may be inconsistent with the provisions of this law"" (23) It is contended that he position of an occupant i.e., of a person entitled to cultivate unlamented land with the rights of the transfer, devolution of and alienation and which where also heritable were different and larger in content under the previously operative law relating to land tenures in this region, and this law was the Berar Land Revenue Code of the 1896, which was known as Hyderabad Assigned Districts Land Revenue code of the 1896. (24) According to shir Nat, until the Berar Land Revenue Code, 1928, came to be enacted, unlamented land in possession of occupants was of the private ownership of the occupant was a not of the state ownership. This position and was altered and the rights of occupants were abridged under the Berar Land Revenue Code of the 1928 and there was establishment of the direct relationship of between on occupant in respect of unlamented land held by the him and the state therefore. In other words the state asserted it ownership of the Land vis-à-vis occupant under the Berar Land Revenue Code of 1928 of and to the extent there was diminution of the rights of an occupant under the Code of 1928. In support of the this proposition the learned counsel relied on the commentary of the Berar land Revenue code by late Mr. Hirurkar, and, in particular the observations of at pages 0, 12. (25) I do not think this contention is well founded. In support of the this proposition the learned counsel relied on the commentary of the Berar land Revenue code by late Mr. Hirurkar, and, in particular the observations of at pages 0, 12. (25) I do not think this contention is well founded. It does not appear that there has been any substantial change in the rights of the occupants of an unlamented land between the code of 1986 and that the 1928 in the four district of Berar. The rights of an occupant where heritable and transferable under both the codes. An occupant could relinquish and obtain his holding under certain circumstances under both the codes. The liability of an occupant to pay land revenue is not different under either code. Whatever is theory may therefore be propounded as to the ultimate rights to the sovereign over land sub - soil rights under the land there doesn't appear to be any under violent departure in respective the rights of an occupant under the Code of 1896 and the rights on an occupant recognized under the Berar Land Revenue Code of 1928. In this context it is more useful to consider the views of another learned commentators on the law of land tenure in Berar viz., the late Diwan Bhahdur K.V. brahma. In his commentary on berar land Revenue Code 1928., Third Edition, published in 1950 at page 123 of the book the learned author observed as follows book with reference to the rights of an occupant.: ""this is a clear statement for the first time in the code that the rights of an occupant of are permanent, heritable and transferable property. The Code of 1896, in section 66, declared that an occupant had a rights to hold his hand in perpetuity on his paying the amount of due on the account of the land revenue. It said nothings about the nature of the property and the result was that occupants were held to be mere tenants by the court of the Additional Judicial commissioners at Nagpur in the case of Baliram v. Moroti [1910] 6 Nag LR 78. All doubts are new set a test by the clear wording of this section. It said nothings about the nature of the property and the result was that occupants were held to be mere tenants by the court of the Additional Judicial commissioners at Nagpur in the case of Baliram v. Moroti [1910] 6 Nag LR 78. All doubts are new set a test by the clear wording of this section. An occupants office now a proprietor or owner of his land subjects however to certain restrictions."" The learned author then refers to an attempt made by the Berar legislative committee, expressly to describe an occupants as an owner of the land which the he holds. This was not accepted by the Governor - General is council because the sense in which the status of an occupant was understood viz., that or properties from the earliest times was document reproduced it the Berar Gazetteers, as commissioners of West Berar. Sir A.C. Lyall had then observed as follows: ""Subject to certain restrictions the occupant is an absolute properties of his holding he may sell let or mortgage it or any part of it cultivate it or leave it waste of so long as the pays its assessment which is fixed for the errs of the settlement [usually 30 years] and may then by revised only on general principles that is the assessment of an entire district of the village may be impose raised or lowered as may seem expedient but the impose may he altered to the determent of any occupants, on account of his own improvement. Of the restrictions of on this principles some are intended to protect the rights of the Government of and to check defect of the peasant properties system and the rest to protect the interest of persons other than the occupant who may have an interest in the holding. First if an occupant wishes to do anything's which will destroy the value of his land as to quarry in it, he must apply for the permission to do so and the pay a fine to compensate Government for the prospective loss assessment. Indeed the Berar occupancy tenure has many features resembling the copy - hold estate in the reservation of the manorial rights"". The learned author thereafter gives a comparison of the rights and liabilities of an occupant under the Berar Land Revenue Code of 1928. Indeed the Berar occupancy tenure has many features resembling the copy - hold estate in the reservation of the manorial rights"". The learned author thereafter gives a comparison of the rights and liabilities of an occupant under the Berar Land Revenue Code of 1928. Rights include [1], right in the as he improvement [section 57] [3] rights to divert his land after notice [section 58], [4] rights to relinquish his occupancy [5] rights to be entitled to trees [section 46] [6] rights to hold land without increase in the assessment during the currency of a settlement [7] right to pre - empty a share in a survey number [8]right to be entitled in allusion [section 67] and a right of have person who diverts his land without his consent evicted [section 59 [4]] (26) Among the liabilities are the following liabilities:- [1] Liability to pay land revenue and ceases; [2] Liability to repair boundary - marks: [3] Liability to permit inspection. [4] Liability to Furnish Flag holders: [5] Liability to inform acquisition of rights: [6] Liability to not to work mines or take out minerals of value; [7] Liability to submit to a rights of way in case of necessity and [8] Liability to not divert land without notices. On consideration of these rights and liabilities in could hardly be said that the rights of an occupant in Berar in respect of alienated lands are the less than the rights of a properties of a holding. (27) In several cases which considered the applicability of the provisions of Article 31 - A [2] [a] of the constitution to land tenure or land as 'estate' tests have been laid down by the down by the supreme court. Broadly speaking the test is to make find out whether a tenure holder is holding land find out whether a tenure hold is holding land under the state and paying land revenuer for land which is held by him. It is s true that the Berar Land Revenue code which was existing law in force on the date of the coming into operation of the constitution doesn't contain the definition of 'estate' But as observed by their Lordship of in AIR 1961 SC 1517 . ""Article 31 - A [2] [a] refers not only to estate but also to in local equivalent. ""Article 31 - A [2] [a] refers not only to estate but also to in local equivalent. It was reapplied that in many areas the existing law relating to land tenures may not expressly define an estate of as such though the said areas had their local equivalent described and defined"". It was for this reason that the constitution makes a provision by using the both the words 'estate as well as its local equivalent in existing law relating to land tenure in force in that area. (28) Their Lordships of the supreme court had to consider the basic idea of the meaning of the words 'estate' assessed in Article 31- A [2] [a] in Purushothaman v. State of kerala AIR 1962 SC 694 . The legislation under consideration was the Kerala agrarian Relations act [4 of 1961] In paragraph 24 their Lordship observed as follows: ""it is necessary, therefore, to have some basic idea of the meaning of the words ""estate"" as used article 31- A [2] [a] As we have said already where the words 'estate' as such is used in the existing law relating to land tenures in force in particular area there is no difficulty and the words 'estate' as defined in t the existing law would have that meaning for that area and there would be a necessary for looking for local equivalent. But where the words 'estate' as such is not defined in an existing law it will be necessary to see if some other term if defined or used in the existing law in particular area which in that area is the local equivalent of he words 'estate'. In that case the words 'estate would have the meaning assuaged to that the term in the existing law in that area to determine therefore whether a particular assigned to that termini law in that area. To determine therefore whether a articulator term defined or used in a particular areas is the local equivalent of the words 'estate' as used in Article 31 - A [2] [a] it is necessary to have some basic concept of the meaning of the words 'estate' as used of in the relevant Article of the constitution of the constriction. To determine therefore whether a articulator term defined or used in a particular areas is the local equivalent of the words 'estate' as used in Article 31 - A [2] [a] it is necessary to have some basic concept of the meaning of the words 'estate' as used of in the relevant Article of the constitution of the constriction. It seems to us that the basic concept of the words 'estate' is that the person holding the estate of should be proprietor of the soil and the should be in direct relationship of the with the state paying the land revenue relationship of to it except where is it remitted tin whole or in part if therefore a term is used or defined if any existing law in a local area which corresponds to this basic concept of 'estate' that the old be the at local equivalent of the word 'estate' in that area. It is not necessary that there must be an intermediary in an estate before it can be called in estate within the meaning of Article 31 - A [2] [a]. It is true that in the many cases of estate of such inter mediates is exist, but here are many holders o small estates who cultivate their lands without to any intermediary whatever. It is not the present of the intermediary that determines whether of a particular landed property is an estate or not., what determined of the 'estate' in the existing law in a particular area or is the purposes of the area the local equivalent of the words 'estate' irrespective of the whether there are words intermediaries in existence's or not. This in our opinion, is also borne out by the consideration of the relevant decisions of this court to which we all will not turn."" It will, therefore be useful to examine the decision of their Lordship of the supreme court where the question whether an occupant in Berar Holding Land which was an 'estate' came directly under examination. That was in AIR 1961 SC 1517 . That was in AIR 1961 SC 1517 . It is true that the provisions of law which have been considered in this decisions of are those of the M.P. land Revenue code but the sustained differences in the provisions of the Berar Land Revenue code of the 1928 and those of the M.P. Land Revenue code of 1954 which come to the examined by the Lordship. It may also be examined by the law which was directly under scrutiny was the vidarbha Act viz., The Bombay Tenancy and Agricultural Lands [Vidarbha Region and Kutch Area] Act, XCIX of 1958. Reference if first made to the definition of 'land' in section 2 [17] of he Vidarbha Act and also to the definition of 'land - holder' in section 2 [18] of the Vidarbha Act defines Landholder as meaning a tenure holder whom the state Government has declared to account of the extent of the value of the land his interest therein to be a land holder for the purposes o this act. Now, the words 'tenure - holder' is not defined in the Vidabha Act expression is denied in M.P. Land Revenue Code In Section 2 [20] of the code [tenure holder] means a person holding land from the state Government of as Bhumsiwani or a Bhumdihari. Now, as these two latter expression of have been used in the section 145 of the M.P. Land Revenue code which says of the that there shall be the following classes of tenure - holders of the lands held from the state that the is to says [I] Bhumiswami and [ii] Bhumisdhari what a Bhumisawami is, is made clear n the section 146 of the M.P. Land Revenue Code. That section is as follows: ""Every person, who at the coming into force of this code belong to any of the following classes, shall be called a Bhumiswami and the shall have all the rights and be subjects to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely:- (A) Every person in respect of land held by in as a malik makbuza or a plot properties in the central provinces. (B) every person in respect of land lawfully held by him a as house site in the abadi in the central provinces. (B) every person in respect of land lawfully held by him a as house site in the abadi in the central provinces. [C] every person is respect of land held by him as a raiyat malik in the Central provinces; [D] every persons is repeat of land held by him as an occupant in Berar; [F] every persons is respect of land held by him as an ante-alienation of tenant o a tenant of antiquity in Berar in respect of which he has become lessee of the state under sub section [2] of the section 68 of the Madhya Pradesh Abolition of proprietary rights [Estates, Mahals and Alienated Lands] Act, 1950."" (29) It will be seen from the definition of Bhumiswami in this section that every person in respect of land held by him as occupants in the Berar is called a Bhumiswami. Thus in the phraseology of the M.P. Land Revenue Code, 1954, an occupant in Berar who held land from the state under the Berar land Revenue Code, 1928 would be Bhumiswami or a tenured - holder within the meaning of section 2 [18] of the M.P. Land Revenue Code which describes him as a land hold under the Vidarbha under act. There is no dispute of also that he land which is the subject - matter of suit in these proceeding is the land used our capable of binged for auricular proposes and having answers the description of the land with the meaning of section 2 [17] of the Vidarbha Act. (30) Their Lordship then referred to the definition of 'holding' in section 2 [7] of the M.P. Land Revenue Code. The M.P. Land Revenue Code defines 'holding' to mean [a] a parcel of land separately assessed to land revenue, and [b] in reference of to land held by attendant a parcel of the land held from a tenure holder under one lease or set of conditions. Now precisely the same definition of is given for the words 'holding' in section 2 [5] of the Berar Land Revenue Code. Reference is then made to section 2[20] of the M.P. Land Revenue Code for the definition of 'tenure - holder' meaning of a person holding land from the state Government as a Bhumiswami or a Bhumidhari. Now precisely the same definition of is given for the words 'holding' in section 2 [5] of the Berar Land Revenue Code. Reference is then made to section 2[20] of the M.P. Land Revenue Code for the definition of 'tenure - holder' meaning of a person holding land from the state Government as a Bhumiswami or a Bhumidhari. Their lordships then referred to Chapter XII of the M.P. Land Revenue Code which deals with the tenure - Holders and Particular to section 145 referring to the two classes of tenure - holder viz., Bhumisawmi and Bhumidhari and the definition of the Bhumiswami given in section 146 of the M.P. Land Revenue Code. It has already been pointed out that the definition of ""Bhumisawmi"" in section 146 and in particular inclusion of the occupant in Berar in this definition shows that the lands in possession of an occupant in Berar who later on the come to be called a tenure - holder being a Bhumiswami was in substances relating to land which will answer the description of 'estate'. This conclusion must follow from what their Lordships have observed in the above decisions with respect to land held as a tenure - holder by reference to the provisions of the M.P. Land Revenue Code. Their Lordships have also observed that though the words 'estate' as such has not been employed in the M.P. Land Revenue Code it has to bee borne in mind that the Article 31 - A [2] [a] refers not only to estate but also to its local equivalent. It was realized to land tenure s are the existing law relating to the land tenures may not expressly define an estate of such though the said areas had their local equivalents described and defined and that is why the relevant of provision of the constitution has deliberately used both the words 'estate's well as its local equivalent. It was realized to land tenure s are the existing law relating to the land tenures may not expressly define an estate of such though the said areas had their local equivalents described and defined and that is why the relevant of provision of the constitution has deliberately used both the words 'estate's well as its local equivalent. Their lordships the observed that the petitioners in that case held land under the state and they pay land revenue for the lands thus held by the them and the therefore there was no difficulty in the them and therefore was no difficulty in the holding that under the existing law relating to land tenures the land held by them fell within the asses of the local held equivalents of the worse 'estate' as contemplated by Article of 31 - A [2] [a]. I have gone in some details to show that the provisions of the M.P. Land Revenues of code of the Berar Revenue Code, 1928, are identical was for words and the mere facts that it was the provisions of come to be examined the theirs lordships of made no differences to the conclusion reached viz., that the land held by the an occupant and definition of 'estate' as used in the article 31 - A [2] [a] o the constitution. (31) The learned counsel for the petitioners, however urged that the land held by the occupants it Berar were under the right ward tenure. It was therefore contend that in another decisions of the supreme court in AIR 1962 SC 723 , lands held by right ward pattadars from the district of south Canara were not held to be estate and that decision of the supreme courts in Kolhe's case, AIR 1961 SC 1517 to hold that unalienated land held by a occupant in berar were not an estate. It is necessary to state a few facts of the case relied upon by the learned counsel for the petitions. The legislation nude consideration was he keral Agrarian Relations, Act No. IV, of 1961. It is necessary to state a few facts of the case relied upon by the learned counsel for the petitions. The legislation nude consideration was he keral Agrarian Relations, Act No. IV, of 1961. The petitioner come from that part of the state of the Kerala come which was formerly I the south Canara district of the state of madras and come to district and come to the state o kerala b virtue of the state Reorganization act ,1956 Actually, three lands were suited of Hosdrug and Kasargod talukas which have now been made part of the cannarnore Districts in the state of Kerala. The petitioners had large areas of he lands ryotwari pattadras, according to the ryoetwari settlement in the state in Madras under the Boards standing orders of the state. Their lordships therefore observed that it was necessary to look at the state of the law as it was in the state of madras on January 26, 1950, for the area from which the petitioners, come, namely to the district of canara, which was then part of the province of Madras. The usual feature of the land - tenure in admires was the ryotwari from but in some districts of landlords clashed gown up both the in the northern and southern part so f the president of madras as it was before the constitution. The permanent settlement was introduced in a part of the madras presidency in the 1802, but there were other forms of tenures arising out the revenue - frees ground all over the province. There was various act in force in the Madras presidency with respect of to land lord tenures but so far as ryotwatri tenures are concerned, the were governed by the standing orders of the Boards Revenue. Eventually in 1908, the Madras Legislature passed the Madras Estates Land Act. No. 1 of 1908, which was later amended from time to the and that act later contained a definition of the words 'estate' which was in force when the constitution come into force. Eventually in 1908, the Madras Legislature passed the Madras Estates Land Act. No. 1 of 1908, which was later amended from time to the and that act later contained a definition of the words 'estate' which was in force when the constitution come into force. (32) But it was further found in that case that though the act of 1908 of dealt with landlord tenures to madras and was the existing law relating to land - tenures, there were other classes of land - tenures with consisted of ryotwari pattadaras which were governed by the Board's standing Orders, there being no act of the legislature of with respect to them. The holders of ryotwari with respect to them. The holders of ryotwari pattas used to hold land o lease of from government. After noticing the features of land tenures called ryotwari pattdars the their lordships proceeded to observe of that though the act of 1908 was in the force all over the state of madras, 'estate' which was also applicable of the words throughout the state of the madras except inter a indicated the which it was clear that it the existing the law relating to the land - tenures the words 'estate' did not include of the land the ryotwari pattadars and herefore the impugned legislation was held not to be saved in respect of the land from south Canara district which was held as ryoetwari pattadars by the litigants before the supreme courts. (33) The learned counsel particularly relies on the observations in paragraphs 13 of the this decision of which describes the broad features of the system of ryotwari pattadars. Their lordship observed as follows in this connections: ""The holder of ryotwati in pattas used to hold land on lease from Government. The basic idea of ryotwari settlement in that every bit of the land is assessed to a certain revenue of the and assigned of a survey number to for a period of years which is usually thirty on that land. But it is open to the occupant to relinquish his land or to take new land which has been relinquished by some other occupant or become otherwise available on payment of assessment ........... But it is open to the occupant to relinquish his land or to take new land which has been relinquished by some other occupant or become otherwise available on payment of assessment ........... Though, theoretically, according to some authorities, the occupant of ryotwari land held it under an annual lease [see Macleane, Vol I, Revenue settlement, p. 104], it appears that the in fact the collectors had no power s to terminate the tenants holding for any cause whatever except failure to pay the revenue or the ryot's own relinquishment or abandonment. The ryot is generally called a tent of Government of but he is no not tenant of from years to year and the cannot to is outset as long as he pays the land revenues assessed. He has also the rights to sell or mortgages or gift the lands in or lease is and the transferee becomes liable in his place of the revenue. Further, the lease of the ryotwari pattadar has no rights except those conferred under the lease and is generally of sub = tenants of at will liable to ejectment of at the end of each year. In the Manual of Administration, as quoted by Baden - powell in Vol, III of Land systems of British India at p. 129, the ryotwari tenure is summarized as that:- 'of tenant of the state enjoying a enacts right which can be inherited sold or, burdened for debt if precisely of these manner as a proprietary rights subjects always to payment of the revenue of due to the state.' Though, therefore, the ryotwari pattadar is virtually like a property and has made of the advantages of such a properties, he could still relinquish or abandon his land is favor of that the ryoetwari pattadar was never considered a proprietor of the land under this patta, though he had many o the advantages of a proprietor. According to Mr. Nat these feature of land held as ryotwari pattadar in the south Canara districts of madras are analogous to the rights and liabilities of an occupants in Berar and therefore it is urged that he should not b considered to be holding land which answers the description of 'estate' within the meaning of Article 31 - A [2] [a] of the constitution. (34) It is not possible the accept this contention of mainly because the precise rights in the which the tenure - holders of like an occupants Berar and hold land under the M.P. Land Revenue Code have been the subject - matter of examination by their lordship of the supreme court in AIR 1961 SC 1517 , and as shown f above the rights of an occupant in Berar governed by the Berar Lands Revenue Code of the 19238 which was existing law when articles 31 - A was introduced into the constitution are in no way different I view of the pronouncement of their lordships of the supreme court that such an occupants hold that the answered in the definition of 'estate' in the existing law relating to land tenures. It isn't open how to the petitioners of urge of the that the landholders petitioners which was an 'estate'. The case from Kerala is easily distinguishable also from because there was no existing law which governed land held by a particular petitioners in AIR 1962 SC 723 , because they were shown to be holding under leases granted by the Government according to the instructions of the Board of the Revenue. There is word to difference between the status of persons holding land under lease from the Government and occupants in Berar. Under the Berar Land Revenue decode of 1928 f which was the of Article 31 - A [2] [a] of the constitution the petitioners were occupants and not holding land a lessees from the government. The manner in which the lands could be granted by the government of lessees is separately provided in section 55 of the Berar Land Revenues code and it also provided to in the same section that the provisions of section 53 and section 54 of the Berar Land Revenues code will not the apply to such he leases. In view of their clear provisions of law it is difficult to uphold to the contention of the petitioners that temerity the because of system of land tears in respect of unlamented land in Berar was analogous to the ryotwari systems of the occupants would be called classes of the Government or were in any manner of analogous to ryotwari pattadars in the south canara district of madras. (35) Shri Nat particularly relied on the provisions for relinquishment of the land held by the occupants and dispose of the same manner under section 60 and 61 of the Berar Land Revenue code. It is not possible of the hold that merely code. It is not possible to hold that merely because of tenure - holder is entitled under the law to relinquish holding he would may the proprietor o the land. This provisions of be made for preservations of agricultural property of and also for protecting the rights of the and state as overlord. It is interesting to note that an occupants may relinquish his rights, that is rights them resign them in favor of the Crown in the section 60m of the Berar Land revenues Code but relinquishments of the made subject of any rights , tenures, encumbrances or equities lawfully subsisting in favor of any persons other than the crown or the occupants and a notice is required to be given the such relinquishment. In the case of relinquishment of any sub - division of a survey number under section 60, the Deputy Commissioners is required to offer the right to occupy of such sub - division of the such premium as he thinks of the same survey number/ the land so relinquished by the occupant weathers full survey number of the sub - division of the survey number was liable to be disposed of by the procedure prescribed by section 53 which governs of the disposal of unaccented land. It is also noteworthy that what is disposal of under section 53 of the Berar Land Revenue Code did the right to occupy unoccupied unalienated land nor whosoever is granted this rights get of the on an occupants of the within the meanings of the section 54 of the Berar Land Revenue of Code. It must be held, therefore that the land held by the petitioners as landlords come within the local equivalent having the same meaning of the estate of then the existing the law relating to land tenures the force in berar within the meaning of Article 31 - A [2] [a] o the constitution. It must be held, therefore that the land held by the petitioners as landlords come within the local equivalent having the same meaning of the estate of then the existing the law relating to land tenures the force in berar within the meaning of Article 31 - A [2] [a] o the constitution. In view of the this position, the impugned act or any of its provisions viz., the Bombay Tenancy of and agricultural Lands [Vidarbha Region and Kutch Area] Act, 1958, was immune from challenge on the ground that it is inconsistent with the or takes away or abridges of the rights conferred to by Articles 13, 19 and 31 of the constitution notwithstanding anything's contained in Article 13 of the constitution. (36) The learned Additional Government Pleader appearing for the state also relied on the amendment effects in Article 31 - A by the Constitution [Seventeenth Amendment] act, 1964 which come into force on 20th June 1964. By this constitution Amendment Act, sub clauses [a] of clauses [2] of Article 31- A is substituted as follows: This amendment d is expressly made retrospective because it states that it shall be always deemed to the have been substituted for sub - clauses [a] follows:- ""[a] the expression 'estate' shall in reaction to any local area, have the same meaning as the expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include:- [1] and jagir, in am or muafi or others similar grantee and in the state, of Madras and Kerala, and Janmam Rights: [2] any land held under ryotwari settlement; [3] any land held or left for purposes of agriculture or for purposes ancillary thereto, including waste of land forest land, land to including pasture or siestas of buildings and others structures, or occupied by cultivators of land, agricultural laborers and villages artisans"". (37) Relying on this act latest amendment of the definition of 'estate' the learned Additional Government o pleader urged that the lands held by the petitioners could in may case answered the description of third category viz., land held or let for purposes of agriculture or for purposes ancillary thereto and would be an 'estate' within the meaning of the Article 31- A of the constitution. (38) The learned counsel for the petitioners has tried to meet this contention of urged to on behalf to the state by showing that if there was no law relating to land tenures having the same meaning as the expression 'estate' or its local equivalent in the existing law relating to land tenures in forces then the amendment effected in Article 31- A [2] [a] a by the constitution [seventeenth Amendment] Act, 1964, should make is that the Vidarbha Act, i.e., the Bombay Tenancy and Agricultural Land [Vidarbha Region and Kutch Area] act, 1958, would be an invalid piece of legislation being contrary to the and violative provisions articles 14 and 31 of the Constitution and would to that the extent be a dead piece of legislation being on article 13 [2] of the constitution. The arguments is that articles the 13 [2] of the constitution expressly of prohibits the state from making any law which takes away of the abridges the rights conferred by part III of the constitution and any law offered in the contravention of the this clauses shall to be extent of the contravention, be void. If the law made prior to the introduction of the constitution [Seventeenth Amendment] Act, 1964 is void because it takes away or abridges the rights conferred by the Part III of the constitution of under article 13 [2] of therefore the lives cannot be resuciated of in such an act merely by making the seventeenth Amendments of introduced I the constitution of retroactive. There will be considerable to force in this argument were it possible to uphold the earlier contention of the petitioners that under the amended definition of 'estate' in article 31 - A [2] [a] there was no local equivalent in the existing law relating to land tenures of 'estate; or in others worse the lands held by the petitioners of were to 'estate' within the meaning of that expression in unamended provisions of the Article 31 - A [2] [a]. As I have held that land held by the petitioners, must answers the description of the expression 'estate' in view of the local equivalent in the existing law relating to land tenures in force of the constitution, this contention of must also be rejected. As I have held that land held by the petitioners, must answers the description of the expression 'estate' in view of the local equivalent in the existing law relating to land tenures in force of the constitution, this contention of must also be rejected. (39) In view of the position reached therefore that he Article 31- A gives a complete of answer to any challenge of founded either on article 13 or Articles 14, 19 or 31 of the constitution., it is to possible for the petitioners of challenge the validity of section 38 [7] of the vidarbha act because it is shown to violate or abridge any the fundamental rights to the petitioners. That challenges fail on the this short ground. (40) It is, therefore necessary now to consider the second argument on behalf of the petitioners founded mainly on the constructions of section itself as amended by Maharashtra Act 44 of 1963. The amended provisions have been reproduced above and it would show that the only amendment effected by maharastra Act 44 of 1963 in this sub section of section 348 is the addition of the words 'or partition' after the words 'transfer' it two places the sub -section. The main contentions of the petitioners is that member of a joint family owning property in land by reason of the fact that the is members of the family and partitions among the joint new rights ownership which he did not previously possess. Even after the amendment effected by Maharashtra Act 44 of the 1963, it is urged, that disability it created only on that the type of tenure - holder who has 'Acquired' any land by transfer or partition after the 1st day of August 1953. The phrase ""acquired any land"" whether by transfer or patron postulates acquisition of ownership's in respect of the land by a person who had no pre - existing right of ownership in that land. The use of the words 'acqu"