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It has been contended that the second view with regard to the expression "unless it is proved by the tenure-holder that he would not have been a permanent tenant on the basis of continued possession of the land under clause (b)" is preferable on the ground that cl. (b) is one of the conditions which the tenant must fulfil before he can get the benefit of s. 4 and there would not be much sense in allowing the tenure-holder to disprove a condition which the tenant must fulfil before he can get the benefit of s. 4. We find it difficult to accept this view. On a pure question of construction of the words used in s. 4, we see nothing wrong in allowing the tenure-holder to prove that the tenant was not in possession for continuous periods aggregating twelve years. Let us, however, assume that the second view as to the interpretation of s. 4 of the impugned Act, 1958, is preferable to the first view. What then is the position? The position then is that a tenant who fulfils the two conditions mentioned in cls. (a) and (b) must be deemed to be a permanent tenant unless the tenure-holder proves the commencement and/or duration of the tenancy. From this point of view it may be argued that s. 4 merely changes a rule of evidence and throws the onus on the tenure-holder to prove that in spite of twelve years' continuous possession mentioned in cl. (b), the tenant is not a permanent tenant by reason of the circumstance that the commencement of the tenancy or its intended duration is known. Under s. 6 the rights of a permanent tenant under s. 4 shall be entered in the record of rights unless the tenure-holder applies in writing to the Mamlatdar within six months from the date of the commencement of the impugned Act, 1958, for the declaration that the tenant under him is not a permanent tenant. If any such application is filed by the tenure-holder, it shall be disposed of as if it were an application in respect of a disputed case under s. 135D of the Revenue Code. What is the effect of s. 6 ? It was conceded by the learned counsel appearing for the respondent State and also the respondent tenants that the tenure- holder has only one opportunity of saying that a tenant under him is not a permanent tenant and the tenure-holder must avail himself of that opportunity within six months from June 10, 1958, the date on which the impugned Act, 1858, came into force. The combined effect of ss. 3, 4 and 6 appears to us to be this. If the tenure-holder has made no application within six months from June 10, 1958, for a declaration that a tenant under him is not a permanent tenant, every tenant under him who fulfils the conditions mentioned in cls. (a) and

On behalf of the respondents it was stated at the Bar that the petitioners had made applications for a declaration under s. 6 of the impugned Act, 1958, and that those applications are still pending. We have no materials in support of this statement. No affidavit has been made on behalf of the respondents to this effect; nor do we know if those applications related to all the non- permanent tenants of the petitioners. What we know is that in a stay application made by the petitioner in petition No. 120 of 1958 it was averred that the petitioner had filed several declaratory suits before the Mamlatdar under s. 70(b) of the Tenancy Act, 1948, for a declaration that the tenants concerned were not permanent tenants. Those suits were however, filed prior to the coming into force of the impugned Act, 1958. The petitioner asked for a stay of those suits on two grounds: firstly, that after the coming into force of the impugned Act, 1958, the suits would become infructuous, and secondly, that the Mamlatdar concerned would have no jurisdiction to adjudicate upon the constitutional validity of the provisions of the impugned Act, 1958, and in view of those provisions would be bound to hold that the tenants had become permanent tenants. This Court passed no order on the application for stay. But the petitioner, it appears, moved the Mamlatdar to stay the hearing of the suits pending the disposal of the writ petition in this Court and the suits were stayed. In a second petition filed on behalf of the petitioner it was stated that after the coming into force of the impugned Act, 1958, the petitioner received a notice to show cause why the non-permanent tenants under him should not be declared to be permanent tenants and the record of rights amended accordingly. The petitioner applied to the Revenue Officer concerned to stay the proceedings in view of the writ petition pending in this Court. This request was, however, turned down. The petitioner then came to this Court and it appears that an order was made to the effect that any investigation which might be necessary for the proceedings pending before the Revenue Officer might be continued, but no final order or entry should be made till the disposal of the writ petition. Such an order appears to have been made in respect of a number of villages and the petitioner stated that he had thousands of tenants in 24 villages, some of whom were permanent, some protected, and some ordinary. Nothing was stated in those petitions or in the replies thereto as to whether the tenure-holder had made an application for a declaration within the meaning of s. 6 of the impugned Act, 1958. All that has been stated in the application is that in response to a notice received from the Revenue Officer, the petitioner, as a tenure-holder, had moved this Court for a stay of the proceedings. If the petitioner had filed no application for a declaration within the meaning of s. 6 of the impugned Act, 1958, and within the time allowed by that section, then it is obvious that the Revenue Officer dealing with the suits under s. 70(b) of the Tenancy Act, 1948, pending before him, or the Revenue Officer dealing with other proceedings before him, must give effect to the provisions of ss. 3, 4 and 6 of the impugned Act, 1958. It is, therefore difficult to see how the pendency of the suits or other proceedings before the Revenue Officers concerned can be of any assistance to the petitioners. The question, therefore, boils down to this. Section 6 of the impugned Act, 1958 does give one opportunity to the petitioners to make an application for a declaration that any tenant under him is not a permanent tenant, but that opportunity was to be availed of within six months from June 10, 1958. Once that opportunity is lost, the tenure-holder cannot claim that a tenant who fulfils cls. (a) and (b) of s. 4 is not a permanent tenant. Our attention was drawn to sub-ss. (3), (4) and (5) of s. 5A of the Taluqdari Abolition Act, 1949. Those sub-sections say in effect that if any question arises whether any person is a permanent tenant, the State Government or an officer authorised by the State Government in that behalf shall decide the question; where such officer decides such question any person aggrieved by the decision may file an appeal to the State Government within 60 days from the date of the decision; and the decision of the State Government shall be final. It was not suggested before us that the aforesaid sub-sections would give the tenure-holder a second opportunity of contesting the claim of the tenant, and it seems to us quite clear that the tenure- holder who had failed to make an application within the time mentioned in s. 6 of the impugned Act, 1958, would not be in a position to take advantage of sub-ss. (3), (4) and (5) of s. 5A of the Taluqdari Abolition Act, 1949. If ss. 3, 4 and 6 of the impugned Act, 1958, are good and valid in law, then whichever be the authority that has to decide the claim of the tenant, it must decide it in accordance with those provisions.

It may be, as the learned Solicitor General says, that the language used by the legislature is not felicitous. Even so, we think that it would not at all be far-fetched to construe it as meaning that the tenure-holder has the right to establish for getting over the presumption, that the tenancy originated at a definite point of time or was of a finite duration. The language used by the legislature is in our view capable of only such construction.

Then it is said that even if s. 4 is construed as giving an opportunity to the tenure- holder to prove otherwise than by disproving that the tenant had been in continuous possession of land under him for twelve years that he is not a permanent tenant, that opportunity is illusory and really nonexistent and, therefore, s. 4 in effect extends the definition of a permanent tenant. This contention is based on s. 6 of the Act which, it may be stated gives the tenure holder a period of six months from the commencement of the impugned Act to move the Mamlatdar in writing for a declaration that the tenant is not a permanent tenant within s. 4. It may be stated that the respondents concede that s. 6 has that effect.

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Since six months is not a short period, within that time it is easily possible for the tenure- holder to move the required application. Then it is said that it is illusory because there may be a very large number of tenants and the tenure-holder could be required to make numerous applications. Even so, we do not see why it should not have been reasonably possible to lodge these applications within the period allowed. All that the tenure- holder has to do is to name the tenant concerned and state that he wants a declaration that the tenant is not a permanent tenant. It is also said that the tenure-holder has to make the application in anticipation of the tenant making a claim to be a permanent tenant. But we are unable to appreciate how this by itself can make the opportunity to rebut non-existent. We find no practical difficulty in the tenure-holder making the application in anticipation.