The State of Vindhya Pradesh (Now
Madhya Pradesh) Vs. Moradhwaj Singh & Ors  INSC 30 (24 February 1960)
SINHA, BHUVNESHWAR P.(CJ) IMAM, SYED JAFFER
CITATION: 1960 AIR 796 1960 SCR (3) 106
Jagirs, Abolition of-Constitutional validity
of enactment Vindhya Pradesh Abolition of Jagirs and Land Reforms Act, 1952 (XI
of 1952), SS. 22(1), 37, Schedule cl. (4)(e)-Code of Civil Procedure (Act V of
1908), S. 9-Constitution of India, Art. 31 A.
These appeals raised the question of
constitutional validity of the Vindhya Pradesh Abolition of jagirs and Land
Reforms Act, I952 (XI Of 1952). Applications were made before the judicial
Commissioner under Art. 226 of the Constitution on the ground that various
provisions of the Act placed unreasonable restrictions on the exercise of the
fundamental rights guaranteed by the Constitution. The judicial Commissioner
held that the Act, excepting S. 22(1), s. 37 and cl. (4)(e) of the Schedule to
the Act, was constitutionally valid. The State appealed against that part of
the order which declared the three provisions unconstitutional and one of the
petitioners appealed against the order declaring the rest of the Act
Held, that the appeal of the State must be
allowed and that of the petitioner dismissed.
It was not correct to say that S. 22 of the
Act, which lays down the scheme for giving, effect to S. 7(a) of the Act which
permits the jagirdars to remain in possession of certain lands even after the
abolition of their jagirs, is a piece of colourable legislation and, therefore,
ultra vires the Legislature. That section cannot be said to discriminate as
between jagirdars on the one hand and other occupants of land, to whom s. 28(1)
applies, on the other, since they belong to distinct and different classes.
107 Even assuming that they belong to the
same class and S. 22 is discriminatory, that section is protected by Art. 31A
of the Constitution.
The question as to colourable legislation' is
really one relating to legislative competency and there can be no doubt that
the Vindhya Pradesh Legislature was perfectly competent to enact the impugned
provisions under Entry 18, List II of the Seventh Schedule to the Constitution.
K. C. Gajapati Narayan Deo v. The State of
Orissa.  S.C.R. i and Raghubir Singh v. The State of Ajmer (Now
Rajasthan).  SuPP1. (1) S.C.R. 478, relied on.
There was no substance in the contention that
s. 37 of the Act is repugnant to s. 9 of the Code of Civil Procedure and
consequently ultra vires the State Legislature. The Vindaya Pradesh Legislature
had undoubtedly the power under Entry 3, List II of the Seventh Schedule to
make a provision like s. 37 Of the Act and, once it did so, the last part of s.
9 of the Code would apply and the jurisdiction of the Civil Courts would be
barred by s. 9 of the Code read with S. 37 of the Act.
Nor was it correct to say that cl. (4)(e) of
the Schedule deprives the jagirdar of his proprietory interest without compensation.
Although he may have to pay rent for the land remaining with him, no revenue
for such land was any longer payable by him and the revenue is taken into
account in assessing compensation.
The entire Act, therefore, falls within the
protection of Art. 31A of the Constitution and, in view of the decisions of
this Court, its constitutional validity is beyond question.
Case-law referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 40 to 110 of 1955.
Appeals from the judgment and order dated November
12, 1953, of the former Judicial Commissioner's Court, Vindhya Pradesh, Rewa,
in Misc. Applications (Writ) Nos. 51 to 119 and 121 of 1953.
C. K. Daphtary, Solicitor-General of India,
M. Adhikari, Advocate-General for the State of Madhya Pradesh and I. N.
Shroff, for the appellant (in C.As. Nos. 40
to 109 of 55) and respondent (in C.A. No. 110/55).
K. B. Asthana, S. N. Andley, J. B.
Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondents (in C.As. Nos.
40, 51, 52, 54, 65 and 100155) and appellant (in C.A. No.
1960. February, 24. The Judgment of the Court
was delivered by 108 WANCHOO, J.-These seventy-one appeals on certificates
granted by the Judicial Commissioner of Vindhya Pradesh arise out of seventy
petitions under art. 226 of the Constitution filed before that Court
challenging the constitutionality of the Vindhya Pradesh Abolition of Jagirs
and Land Reforms Act, No. XI of 1952, (hereinafter called the Act). They were
disposed of by a common judgment by the Judicial Commissioner. We shall also
dispose of these appeals, by a common judgment. Seventy (Nos. 40 to 109), out
of these appeals, are by the State 'of Vindhya Pradesh (now Madhya Pradesh)
while one (No. 110) is by the Brijindar Singh, a jagirdar.
The case of the petitioners in the Court of
the Judicial Commissioner was that the Act was unconstitutional as various
provisions in it placed an unreasonable restriction on the exercise of the
fundamental rights guaranteed to the petitioners under Part III of the
Constitution. The -Judicial Commissioner held that the Act was constitutional,
except for three provisions thereof, namely, S. 22(1), s. 37 and cl. (4) (e) of
the Schedule to the Act. The seventy appeals by the 'State are with respect to
this part of the order declaring these three provisions unconstitutional.
The appeal of Brijindar Singh is against that
part of the order by which the rest of the Act was held constitutional.
We shall first deal with the appeal of
Learned counsel for Brijindar Singh was
unable-and in our opinion rightly-to challenge the constitutionality of the Act
as a whole in view of art. 31-A of the Constitution and the decisions of this
court in The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh (1),
Visweshwar Rao v. The State of Madhya Pradesh (2) Raja Suriya Pal Singh v. The
state of U.P. (3), K. C. Gajapati Narayan Deo v. The State of Orissa (4),
Thakur Amar Singhji v. The State of Rajasthan (5), Raja Bhairebendra Narayan
Bhup v. "he State of Assam (6), Sri Ram Ram Narain v. The state of Bombay
(7), Raghubir Singh v. The State of Ajmer (now Rajasthan) (8) and Atma Ram v.
The State of Punjab (9), relating to similar legislation in the (1)  S.C
(2)  S.C R. 1020.
(3)  S.C.R. 1056.
(4)  S.C.R. i.
(5)  2 S.C.R. 303.
(6)  S.C.R. 303.
(7)  SUPPL. (1)S.C R. 499 (8) 
Suppl. (1) S.C.R. 478 (9)  Suppl. (1) S.C.R. 748.
109 States of Bihar, Madhya Pradesh, Uttar
Pradesh Orissa, Rajasthan, Assam, Bombay, Ajmer and Punjab. It is not necessary
therefore to examine the provisions of the Act in detail. In the circumstances,
Appeal No. 110 is dismissed;
but as it was not pressed we think it right
that the parties should bear their own costs of this appeal.
Now we turn to the appeals by the State. The
object of the Act is to resume jagir-lands. Sec. 5 provides for the appointment
of a date for the resumption of any class of jagir-land by notification and
power is given to the State Government to fix different dates for different
classes of jagir-lands. Sec. 6 provides for the consequences of such
resumption. Sec. 7, however lays down that notwithstanding anything contained
in s. 6, certain lands will remain in possession of jagirdars and cl. (a)
thereof is material and may be quoted here- " The jagirdar shall continue
to remain in possession of his sir and khudkasht to the extent and subject to
the conditions and restrictions specified in Ch. IV. " Sec. 10 and the
subsequent sections appearing in Ch. III of the Act provide for compensation
and the Schedule provides the manner in which the compensation shall be
Then comes Ch. IV, which deals with sir and
khudkasht lands. See. 20 provides for an application by the jagirdar for
allotment of land for personal cultivation. See. 21 provides for an enquiry by
the Tahsildar on such application in the prescribed manner, and the allotment
of land and the issue of a patta thereof to the jagirdar having regard to the
remaining provisions of the Chapter. Then comes s. 22, which may be quoted in
full- " (1) A jagirdar shall be allotted all sir and khudkasht lands which
he was cultivating personally for a continuous period of three years
immediately preceding the date of resumption.
" (2) A jagirdar whose jagir-lands have
been resumed under this Act- (a) who is not allotted any sir or khudkasht land
under sub-section (1), or 110 (b) who had been allotted any such land which is
less than the minimum area, may if he applies in this behalf, be allotted any
other sir or khudkasht land in his personal cultivation at the date of
resumption or where there is no such land or sufficient area of such land any
unoccupied cultivable waste land in the jagir-land subject to availability of
such land, so that- (i) in a case falling under cl. (a), the total area
allotted to him under this sub-section is equal to the minimum area, and (ii)
in a case falling under cl. (b), the area allotted to him under this
sub-section together with the area allotted under sub-section (1) is equal to
the minimum area.
Explanation-In this sub-section, the
expression minimum means ten per cent. of the total cultivated land in the
jagir-land at the date of resumption or 30 acres whichever is greater:
Provided that in no case the minimum area
shall exceed 250 acres." Chapter V deals with rights of tenants, grove
holders and occupants in jagir-land and confers certain benefits on them.
Chapter VI provides for the machinery and the procedure for carrying out the
purposes of the Act. The last section (42) gives power to the State Government
to make rules to carry out the purposes of the Act.
The learned -Judicial Commissioner has held
that s. 22(1) is a colourable piece of legislation. The scheme of s. 22 is to
give effect to s. 7(a) by which certain lands were allowed to remain in the
possession of the jagirdar.
Section 22(1) lays down that all sir and
khudkasht lands which a jagirdar was cultivating personally for a continuous
period of three years immediately preceding the date of resumption shall be
allotted to him by the Tahsildar. Sub- section (2) provides for those cases
where there is no land which can be allotted to a jagirdar under sub-s. (1) or
where the land, which can be allotted to him under sub-sec- tion (1) is less
than the minimum area as defined in the section. In such a case the jagirdar
can be allotted any other sir or khudkasht land in his personal culti- 111
vation at the date of resumption upto the minimum area.
Where, however, the minimum is not reached
even after such allotment, the jagirdar can be allotted under sub-s. (2) any
unoccupied cultivable waste land in the jagir subject to availability of such
land upto that area. The minimum area means ten per cent. of the total
cultivated area in the jagir at the date of resumption or 30 acres whichever is
greater subject to the proviso that in no case the minimum area shall exceed
250 acres. In other words, s. 22 (1) provides that in the first instance the
jagirdar will get all his sir and khudkasht land which he had been cultivating
for three years continuously before the date of resumption.
If, however, there is no such land or if the
land of this kind allotted to a jagirdar is less than the minimum area he will
be entitled to further allotment out of the sir or khudkasht land in his
possession for less than three years to make up the minimum area. Lastly if the
minimum area is not made up even by allotment of such land which has been in
the jagirdar's possession for less than three years he will be entitled to
allotment of unoccupied cultivable waste land subject to availability of such
land to make up the minimum area; but the provisions of sub-s. (2) are subject
to a minimum of 250 acres. We have not been able to understand how these
provisions can be called a piece of colourable legislation. The learned
Judicial Commissioner seems to be of the view that as a period of three years'
continuous cultivation is made a condition of allotment under s. 22(1), there
is discrimination between jagirdars and other occupants of land in whose case
s. 28(1) provides that every person who is entered in the revenue record as an
occupant of any jagir-land at the date of resumption, shall be deemed to be
pattadar tenant in respect of such land which shall be assessed at the village
rate. The learned Judicial Commissioner was not unconscious of the provisions
31-A which lays down that no such legislation
would be struck down on the ground of discrimination under art. 14.
He however thought that this was an extra
condition which had been imposed so that the jagirdar might.be deprived of as
much sir and khudkasht land as possible subject 112 to the minimum and that
this was done to create in- convenience to the jagirdars whom the legislature
did not like. He therefore thought that such legislation was altogether outside
the power of the legislature and was invalid as a colourable piece of
In the first place we cannot see how any
discrimination can arise in circumstances like this, for the jagirdars are
obviously one class while the occupants of lands other than jagirdars belong to
another class. Secondly, even if it could be held that jagirdars and other
occupants of land stood in the same class and there was discrimination under s.
22(1) as compared to s. 28(1), such discrimination could not be a ground for
striking down s. 22(1) in view of the specific constitutional provision in art.
31-A. It was because of -this difficulty that the learned Judicial Commissioner
did not strike down s. 22(1) on the ground of discrimination but held that it
was a colourable piece of legislation. What is a colourable piece of
legislation has been laid down by this Court in K. 0. Gajapati Narayan Deo v.
The State of Orissa (1). It was pointed there that :- "The question
whether a law was a colourable legislation and as such void did not depend on
the motive or bona fides of the legislature in passing the law but upon the
competency of the legislature to pass that particular law, and what the courts
have to determine in such cases is whether though the legislature has purported
to act within the limits of its powers, it has in substance and reality
transgressed those powers, the transgression being veiled by what appears, on
proper examination, to be a mere pretence or disguise. The whole doctrine of
colourable legislation is based upon the maxim that you cannot do indirectly
what you cannot do directly." Applying this principle it is obvious that
the Vindhya Pradesh legislature in this case had full competence to make this
provision under Entry 18, List II of the Seventh Schedule. There is no question
here of transgressing those powers and veiling the transgression under a
pretence or disguise. We do not think it was proper for the Judicial Commissioner
to (1)  S.C.R. (1) 113 ascribe motives to the legislature as he seems to
have done by saying that the provision was made for creating inconvenience to a
class whom the legislature did not like.
Nor do we think that there is any force in
the argument that art. 31-A has no application to provisions dealing with
allotment of land, for ss. 7 and 22 of the Act work out the scheme of
acquisition of estates and are incidental provisions which are equally
protected under that Article along with the main provisions contained in ss. 5
and 6 of the Act; (see Raghubir Singh v. The State of Ajmer (now Rajasthan)
(1). The provisions of s. 22 as a whole provide a scheme for carrying out the
intention of the legislature expressed in s. 7(a) of the Act and are in our
opinion perfectly constitutional.
We now turn to s. 37 of the Act. That section
appears in the procedural part of the Act and is as follows:- " (1) No
civil court shall have jurisdiction to settle, decide or deal with any question
which is, by or under this Act, required to be settled, decided or dealt with
by the Tahsildar, the Deputy Commissioner, the Land Reform Commissioner, or the
Board of Revenue.
(2) Except as otherwise provided in this Act
no order of a Tahsildar, a Deputy Commissioner, the Land Reform Commissioner,
or the Board of Revenue under this Act shall be called in question in any
court." Sub-s. (1) thus takes away the jurisdiction of the civil court to
decide any matter which under the Act is to be decided by the Tahsildar, the
Deputy Commissioner, the Land Reform Commissioner or the Board of Revenue. Sub-s.
(2) provides that no order passed by any of these authorities shall be called
in question in any court. The learned Judicial Commissioner has held this
section invalid on the ground that it.is repugnant to s. 9 of the Code of Civil
Procedure, inasmuch as it takes away the jurisdiction of the civil court which
it has under that section. Sec. 9 lays down that the civil courts shall have
jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
(1) (1959] Suppl (1) C.R. 478 114 Sec. 9
therefore gives jurisdiction to civil courts to try all suits of a civil nature
excepting those which are expressly or impliedly barred by any other law. The
provision of s. 37 is an express bar to the matters dealt with in the Act being
agitated in civil courts. The learned Judicial Commissioner seems to think that
s. 9 takes away the power of the legislature of a Part State like Vindhya
Pradesh to legislate with respect to the jurisdiction of courts. The power to
the legislature is given by Entry 3, List 11 and cannot be affected by s. 9 of
the Code of Civil Procedure. As a matter of fact s. 9 recognises that if a
competent legislature passes a law barring the jurisdiction of a civil court,
the jurisdiction of the civil court to take cognizance of such suit, even
though of a civil nature, is ousted. It was in our opinion unnecessary to go
22 of the Government of Part C States Act,
No. XLIX of 1951 and compare it with art. 254 of the Constitution in this connection.
Sec. 37 does not in any way affect s. 9. All that it provides is that civil
courts shall have no jurisdiction to hear certain matters of a civil nature;
and s. 9 expressly recognizes that if such a provision is made by any law, the
jurisdiction of the civil courts will disappear. There is thus no question of
any repugnancy between s. 9 of the Code of Civil Procedure and s. 37 of the
Act. The legislature in this case had power to make a provision like s. 37 and
once it did so, the last part of s. 9 will apply and the jurisdiction of the
civil courts will become barred by virtue of s. 9 read with s. 37 of the Act.
The decision of the Judicial Commissioner
there. for that s. 37 is ultra vires the powers of the Vindhya Pradesh
legislature is not correct.
Lastly we come to el. (4) (e) of the
Schedule. The Schedule provides for the method of computing compensation.
Clause (3) lays down the manner in which the gross income of a jagirdar shall
be arrived at. Clause (4) lays down how net income will be arrived at after
making certain deductions.
One of these deductions is in sub-cl. (e) of
this Clause, which is as follows:- "Where the jagirdar is allotted any
sir. or khudkasht or other land or any grove under this Act an 115 amount equal
to the valuation of rent for such land or grove for the basic year at the
current settlement rates (less the land revenue paid by him in respect of such
land and grove in the basic year to be ascertained in such manner as may be
prescribed)." This sub-clause is in fact a contra entry to sub-cl. (b) (i)
of cl. (3). The method of calculation provided by these two clauses is that the
gross income is first arrived at without taking into account the land which
remains with the jagirdar under s. 7 (a). Thereafter in order to arrive at the
net income for the purpose of compensation the rent for sir and khudkasht land
which remains with the jagirdar is taken into account and its value determined
under el. (3) (b) (i) minus the revenue payable in respect thereof. This is
then deducted from the gross income, for the reason that this land remains,
with the jagirdar. The learned Judicial Commissioner thinks that the
arithmetical result of this provision is that so far as these lands are
concerned the landlord has lost his proprietary interest and has to pay rent to
the government, but at the same time gets no compensation. it should however be
noted that though the landlord may have to pay rent in future for the land
remaining with him, he does not pay any revenue which was payable by him so far
with respect to such land. In the circumstances, it cannot be said that he has
been deprived of the proprietary interest without any compensation, for he is
relieved of the charge of paying land revenue which has also been taken into
account in arriving at the net assets for that purpose, and that is all that he
can expect considering that the land remains in his possession for all other
purposes. We are therefore of opinion that there is nothing unconstitutional in
el. (4) (e) of the Schedule.
We therefore dismiss Appeal No. 110 but order
parties to bear their own costs. We allow Appeals Nos. 40 to 109 and hold that
s. 22 (1), s. 37 and cl. (4) (e) of the Schedule are valid and constitutional.
As the respondents in these appeals have not seriously contested them we order
parties to bear their own costs.
Appeal No. 110 dissmissed.
Appeals Nos. 40 to 109 allowed.