Ramanlal Gulab Chand Shah Vs. State of
Gujarat & Ors  INSC 111 (19 April 1968)
19/04/1968 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) SIKRI, S.M.
CITATION: 1969 AIR 168 1969 SCR (1) 42
R 1970 SC 398 (2) R 1975 SC1193 (17)
Bombay Tenancy and Agricultural Lands Act
(Bom. Act 67 of 1948) as amended by Bombay Act 13 of 1956, s. 65-Whether
confers arbitrary naked power--If ultra vires--Art.
31A(1)(b) of Constitution--Management for
limited Period--Scope of--Act amended after inclusion in Schedule IX--If
protected by Art. 31-B of Constitution.
Section 65 of the Bombay Tenancy and
Agricultural Lands Act, 1948, which was one of the Aots that had been included in
the Ninth Schedule to the Constitution, was amended by Bombay Act 13 of 1956,
to give the State, the power of taking over the management of any land on the
ground that full and efficient use of the land had not been made for purposes
of agriculture for two consecutive years, for reasons not beyond the holder's
control. Under s. 65(2), on the assumption of management, the provisions of
Chapter IV of the Act which contains ss. 44 and 61 apply to such land mutatis
mutandis. Under s. 61, the State Government may renounce the management when it
is satisfied that it is no longer necessary.
The appellants were for several years
cultivating their land by ploughing it, sowing therein good seeds of grass and
cutting the grass grown thereon and using it as fodder for their cattle. The
concerned authority under the Act issued a notice to them to show cause why
management of the land should not be taken over by the State. The appellants
showed cause, but the concerned authority held that the land was cultivable,
that grains and fruits could be grown on it, that therefore full and efficient
its,-, ,of the land was, not made for two consecutive years and directed that
the management of the land Should be taken over on behalf of the state. The
appellants challenged the order in the High Court', but their petitions were
In appeal to this Court, on the question
whether the amendment to s.65 is ultra vires and therefore the orders passed there
under are illegal,
HELD : The amendment to s. 65 is not
protected from challenge by Arts. 31-A or 31-B of the, Constitution, and since
the amendment confers arbitrary 'and unreasonable power on the concerned
officer, it is ultra vires, and the orders passed there under, taking over
management of the lands, could not be upheld.
(1) Article 31A does not protect the
amendment to the section.
Article 31A(1) (a) deals with acquisition of
an estate or rights therein, and extinguishment or modification of such rights,
whereas Art. 3 1A(1) (b) specifically provides for management by the, State.
Therefore, cl. (a) is not attracted and the matter should be considered in the
light of cl. (b). But that clause can be invoked only if management of any
property is taken over by the State in public interest or to secure proper
management, for a limited period. Merely because there is a possibility of -a
return of 43 the land to the original owner, it could not be said that the
management was for a limited period. Section 61 itself, which provides for
termination of management, does not set any time limit for the management.
Moreover, though the provisions of Chapter IV are made applicable to lands
whose management is taken over, so far as lands of non-landholders are
concerned, it is under the rules that management is carried on Under r. 35, the
manager makes a report after about a year to enable the Government to decide
whether it is necessary to continue management or releaser the land.
The management may be continued for periods
of 5 years at a time on the strength of periodic reports, but, if management is
to continue beyond 10 years, a formal inquiry is necessary before Government
decides to continue the management. Thus, assuming that the rules read with s.
61 could indicate a limited period of management the rules, in fact, do not
indicate such a time limit. Without a limit of time the management would be, an
excuse for deprivation of property without compensation. Therefore the
protection of Art. 31A(1)(b) is not ,available. [53F-54G; 55B, D-E, G-H] (2)
Article 31B and the Ninth Schedule could not be called in aid to protect the
(a) The Article gives protection to all the
statutes listed in Schedule IX of the Constitution, but the impugned amendment
was made after the Act was listed. Therefore, the amended section could not be said
to have been considered when the Act was included in the Ninth Schedule. If the
amended section is also accepted as unassailable, it will have The effect of
the State Legislature doing something beyond its competence, namely, amending
the Ninth Schedule by including something new in it. [52F] (b) The preamble to
the Act and s. 44 have the protection of Art. 3 1B .and are made applicable by
s. 65(2) to lands whose; management is taken over by the State. Even assuming
by such applicability, that they give validity and protection to s. 65, such
protection is given only to the un-amended section, because, the preamble and
s. 44 deal with lands of landholders, whereas, the impugned amendment to s. 65,
carries it into new fields by applying it to the lands of non-landholders also.
[52G-H] (3) The amendment to s. 65 gives unguided power to the concerned
officer. It is therefore ultra vires and the orders passed there under are
Agriculture includes growing of grass, and
other definitions emphasise the need of growing grass by including the
operation in the word 'cultivation'. Grass is as important for agricultural
communities as food grains and fruits, and therefore the Act gives importance
to both. There is nothing to show from an agrarian point of view that grass
grown on the lands in question was not necessary at all or that it was being
inefficiently grown. No objective tests are laid down for deciding when
cultivation can be said to be efficient or when a different kind of cultivation
can be imposed upon the land. A person is entitled to hold and enjoy his
property as he thinks best, and if regard is to be had for the benefits of
society a clear law and a clear determination are required, But, no provision
is made for inquiry to determine the questions and no opportunity is given to
the cultivator to change his cultivation from one kind to -another No criteria
are laid down even with regard to management on behalf of the State as to when
it is to be considered efficient. The officer concerned, purely on the basis of
his subjective satisfaction had held that the and could grow grain or fruits.
and on such opinion the land was to be taken away. [56G-57E] 44
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 17511773, 1799-19161 2451-2452, 2187-2189, 2214-2220, 2358-2372, 2391,
2577-2582/66 and 48-73, 88-104, 106, 107, 620, 705-708, 715719, 814-852,
894-908, 10041065, 1069 and 1557 of 1967.
Appeals from the judgments and orders, dated
May 4, 5,1966 of the Gujarat High Court in Special Civil Application No.
260 of 1966 etc.
B.R.L. lyengar, Ravinder Narain, O. C.
Mathur, B. Dutta and Bhuvanesh Kumar, for the appellants (in all the appeals).
C.K. Daphtary, Attorney-General, N. S.
Bindra, R. H. Dhebar, S. P. Nayyar, for the respondents (in all the appeals).
The Judgment of the Court was delivered by
Hidayatullah, C.J. These appeals come before us on a reference by the
Constitution Bench referring the questionwhether the amendment of S. 65 of the
Bombay Tenancy and Agricultural Lands Act, 1948 by s. 35(1) of the Bombay Act
XIII of 1956, which added the words :
or the full and efficient use of the land has
not been made for the purpose of agriculture, through the default of the holder
or any other cause whatsoever not beyond his control." has the protection
of Arts. 31-A and 31-B of the Constitution. At the hearing of this reference
before this special Bench (Which included Judges of the _Original Constitution
Bench) it was decided to enlarge the reference to include the whole appeals so
that they might be decided in their entirety at the same sitting.
These are appeals against the judgment and
order of the High Court of Gujarat, 4/5 May, 1966 from many petitions question
ing the declaration made by the Deputy Collector, Bulsar under s. 65 of the
Act. Below is given the text of the section with the amended portion material
to these appeals underlined. As a result of the declaration the appellants
stand to lose possession of their lands. The facts on which the several
declarations have come to be made may now be stated.
The appellants own and possess lands in the
district of Bulsar and claim to carry on agricultural operation by raising and
cutting grass used as fodder. They were served with notices under S. 65 of the
Act. A sample notice is Annexure 'B' to the petition of Ramanlal Gulabchand
Shah in the High Court. It was issued from the office of the Deputy Collector
on February 5, 1965 addressed to Ramanlal Gulabchand Shah. It read as follows
45 This is to inform you that during the
inquiry made by us it has been found that you are holding the following grass
land to-ether with the others (here follow particulars) On making inquiry it
has been found that on account of your fault (not) beyond your control you have
allowed to grow the grass naturally in the aforesaid land of your possession
continuously for two years namely 1963-64 and 1964-65, and in two years prior
to that kept the said land uncultivated. That you have, not made full and efficient
use of the said land for the purpose of agriculture.
Therefore, I Shri M. B. Sheikh, Dist. Deputy
Collector. Bulsar, in view of the authority vested in me under section 65 of
the Tenancy Act, have to inform you and call upon you to show cause as to why
the management of the aforesaid land or a portion thereof should not be assumed
by the Government under section 65 of the Tenancy Act.
In consequence of the notice the parties
appealed and denied the allegation that for two consecutive years they had not
cultivated these lands. Ramanlal Gulabehand in his reply stated that :
id land cultivated by plough and by sowing
good seeds of grass therein, we have made the grass to "65. Assumption of
management of lands which remained uncultivated.
(1) If it appears to the State Government
that for any two consecutive years, any land has remained uncultivated or the
full and efficient use of the land has not been made for the purpose of
agriculture, through the default of the holder or any other cause whatsoever
not beyond his Control the State Government may, after making Such inquiry as
it thinks fit, declare that the management of such land shall be assumed. The
declaration so made be conclusive.
(2) On the assumption of the management, such
land shall vest in the State Government during the continuance of the
management and the provisions of Chapter IV shall mutatis mutandis apply to the
said land :
Provided that the manager may in suitable
cases give such land on lease at rent even equal to the amount of its
assessment, Provided further that, if the management of the land has been
assummed under sub-section (1) on account of the default of the tenant, such
tenant shall cease to have any right of privilege under Chapter II or III, as
the case may be, in respect of such land, with effect from the date on and from
which such management has been assummed." 46 grow therein and by ploughing
the land it is brought in level and in this manner formerly after cultivating
the land with plough the seeds have been sown therein and since last six years
or thereafter by cultivating the said lands continuously with the Tractor and
sowing seeds of grass therein, the grass is being -town in the said land.
Therefore, that allegation that said land has been kept uncultivated continuously
for two years namely 1963-64 and 1964-65 and for the years prior to that made
in the notice is absolutely false and we, specifically deny the same. Further,
over and above the cultivation in the said land we are all'-1o making the said
land clean and also we are erecting hedge round about it we are also removing
the thorns and other things lying in the said land and also keep in continuous
watch over the same as soon as the grass grown therein, and when the grass
becomes fit to be cut, we cut the same and bring the same at our house for our
cattle and or cattle eat the same for the whole year....
(sic)" The case was then sent to the
Additional Mamlatdar for report. The Mamlatdar's report is not before us. On
February 28, 1965 the Dist. Deputy Collector, Bulsar made his declaration and
we ,get the gist of the Mamlatdar's report from his declaration. It appears
that-the Mamlatdar reported that the lands were "cultivable" and
"food crops and fruit trees can be grown" but the owners had merely
"allowed grass naturally to grow therein" and by such operations only
they had "not made full and efficient use of the land in the two
consecutive years viz., 1963-64 and 1964-65". The Deputy Collector
declared that he was satisfied that full and efficient use of the lands had not
been made consecutively during the years 1963-64 and 1964-65 as contemplated
under s. 65 of the Act and that the default was not due to circumstances beyond
the control of the owners. He also declared that the lands could grow food crops
or fruit trees. He accordingly appointed the Mamlatdars as managers of said
lands direction that they "should, take immediate steps to lease out the
lands for cultivation of food crops and manage tile land as provided for
management of estates under the provisions contained in Chapter IV of the
Bombay Tenancy and Agricultural Lands Act, 1948". This declaration was
questioned by the writ petitions from which the present appeals arise.
Before the High Court six grounds were urged
in support of the petition. Broadly speaking, they were; the constitutionality
of s. 65 of the Act under Arts. 14, 19(1)(f) and (g) and 31: breach of
principles of natural justice on tile ground that the Deputy Collector who made
the declaration did not hear the ,parties; and lastly that the declaration was
vitiated on account of 47 omission to take into consideration factors relevant
for the purpose of taking action. Another ground of attack was that the
exercise of power was mala fide and actuated by political considerations. This
last ground was not presented to us and therefore may not be mentioned again.
The constitutional validity of the addition
to s. 65 by the Amending Act was also questioned before us. The argument was
that the added words introduced a condition which, even if taken with the
Rules, was destructive of the right of a person to hold and enjoy his property
and to deprive him of it for all times without compensation. It was also
submitted that in the law thus made too much power and discretion was left to
the officer concerned, without indicating_ any standards of an objective nature
to control them. It was also contended that ',,he appellants, in any event,
were fulfilling the requirements of cultivation as laid down in the Act itself.
Before entering into a discussion of these
points we may first see what the Act enacts to achieve by itself and by its
Rules. The Act has a long preamble which indicates the object of the law. It
says inter alia :"AND WHEREAS on account of the neglect of a landholder or
disputes between a landholder and his tenants, the cultivation of his estate
has seriously suffer social conditions of peasants to ensuring the fun and
efficient use of land for agriculture, it is expedient to assume management of
estates held by landholders and to regulate and impose restrictions on the
transfer of agricultural lands, swelling houses, sites and lands appurtenant
thereto belonging to or occupied by agriculturists, agricultural labourers and
artisans in the Province of Bombay and to make provisions for certain other
purposes hereinafter appearing; it is hereby enacted as follows :-" The
following deflutions are material to our purpose.
Section 2(1) provides "Agriculture"
includes horticulture, the raising of crops, grass or garden produce, the use
by an agriculturist of the land held by him or a part thereof for the grazing
of his cattle, the use of any land, whether or not an appendage to rice or
paddy land, for the purpose of rab manure but does not include allied pursuits,
or the cutting of wood only;
Provided that in the case of such tracts of
land abounding in natural growth of grass as the State 48 Government may, by
notification, in the official Gazette, specify, 'agriculture' shall include the
cutting of grass for any purpose." "To cultivate' is defined by s.
2(5). It reads " "to cultivate" with its grammatical variations
and cognate expressions means to till or husband the land for the purpose of
raising or improving agricultural produce, whether by manual labour or by means
of ,cattle or machinery, or to carry on any agricultural operation thereon; and
the expression "uncultivated" shall be construed correspondingly.
Explanation-A person who takes up a contract
to cut grass or to gather the fruits or other produce of trees on any land,
shall not on that account only be deemed to cultivate such land." "To
hold land" is defined by s. 2(6c) and means only that the person must be
lawfully in actual possession of the land as an owner or tenant, as the case
may be. "Land-holder" is defined in s. 2(9) thus :
" "Land-holder" means a
zamindar, jagirdar, saranjamdar, inamdar, talukdar malik or a khot or any
person not hereinbefore specified who is a holder of land or who is interested
in land and whom the State Government has declared on account of the extent and
value of the land or his interest therein to be a landholder for the purposes
of this Act." It must be noticed that this definition does not take into
account .a tenant. That word is defined in s. 2(18) and reads :
"Tenant means a person who holds land on
lease and includes:(a) a person who is deemed to be a tenant under section 4;
(b) a person who is protected tenant; and (c)
a person who is permanent tenant;
and the word 'landlord' shall be construed
accordingly:Chapter II deals with tenancies, but with its provisions we are not
concerned because they bear only upon matters connected with the setting up of
tenancies, their continuance and termination, the quantum of rent payable .and
other such matters. Section 5 of this Chapter prescribes the ceiling area of
tenancy lands with reference to jirayat, seasonal irrigated and perennially
irrigated lands. Section 7 authorises Government to vary the 49 ceiling area
and economic holding taking into consideration the situation of the land, its
productive capacity, its situation in backward areas and any other factor that
may be prescribed. Chapter III then deals with special rights and privileges of
tenants and makes provision for distribution of land for personal cultivation.
We are not concerned with any matter involved in it. Chapter IV deals with
management of estates held by landholders. In view of the definition of
'landholder' this part cannot be applied directly to nonlandholders but the
provisions of s. 65(2) make the provisions of Chapter IV applicable 'lo the
lands of nonlandholders. The intention of Chapter V. is to arrange for the
management of the land of landholders with a view to better management and the
liquidation of their debts. The, relevant sections in this chapter (which
applies in this indirect manner to non-landholders lands) are ss. 44 to 48.
58, 59 and 61. Section 44 reads :
"Notwithstanding any law for the time
being in force, usage, or custom or the terms of contract or grant, when the
State Government is satisfied that on account of the neglect of a landholder or
disputes between him and his tenants, the cultivation of his estate has
seriously suffered, or when it appears to the State Government that it is
necessary for the said purpose or for the purpose of ensuring the full and
efficient use of land for agriculture to assume management off any
landholder',-, estate, a notification announcing such intention shall be
published in the Official Gazette, and the Collector shall cause notice of the
substance of such notification to be given at convenient place in the 'locality
where the estate is situated.
Such notification shall be conclusive."
Section 45 vests the estate in the State Government and the management is
deemed to commence from. The date on which the notification is published.
Section 46 gives the effect of declaration of management. As a result of the
publication of the notification under s. 44 all proceedings and processes in
civil courts in respect of actions against the landholders get automatically stayed
and while the management continues, no further proceedings can be commenced.
The holder of the estate also becomes incapable of entering into any contract,
mortgage, etc. or to grant valid receipts for rents and profits. The manager,
however, has competence to do all these things. Section 47 then enumerates the
powers of the Manager in the management. He is entitled to receive and recover
aft rents and profits due in respect of the property under management and for
this purpose possesses all the powers of the holder as well ,is the powers of
the Collector under the law for the time being in force. Under s. 48 the 50
Manager is entitled to deduct from the recoveries the cost of the management
and repairs, Government revenue and all other debts to Government, and rent to
a superior holder and such periodical allowances as the Collector from time to
time fixes for the maintenance and other expenses of the holder and such
members of his family as the Collector directs and the costs of such
improvements of the estates as the Manager thinks necessary or as approved by
the Collector. The balance is then applied by the Manager for the liquidation
of the debts and liabilities of the landholders and if anything remains
thereafter, it is paid to the land-holder. Sections 49 to 57 deal with claims
to be made against the estate and the power to remove the mortgage in
possession. Sections 58 and 59 may be read here. They confer powers of sales
and lease on the Manager and to pass receipts for any moneys, rents or profits
raised or received by him and the discharge of the persons on the strength of
"58. Subject to the rules made under
this Act, the Manager after the liquidation scheme has been sanctioned as
aforesaid, shall have power to sell or grant on lease all or any part of the
estate under the management :
Provided that the estate or any part thereof
shall not be sold or leased for a period exceeding ten years without the
previous permission of the Collector;
Provided further that the Collector shall not
give such permission unless he is satisfied that such sale or lease is
necessary for the benefit of the estate (or unless such sale is in favour of a
tenant under section 32, 32F, 32 1 or 32 0).The decision of the Collector shall
59.The Manager's receipt for any moneys,
rents or profits raised or received by him under this Act shall discharge the
person paying the same there from or from being concerned to see to the
application thereof." Section 61 next provides for the termination of the
management. It must be read in full :
"61. The State Government, when it is of
opinion that it is not necessary to continue the management of the estate, by
order published in the Official Gazette direct that the said management shall
be terminated. On the termination of the said management, the estate shall be
delivered into the possession of the holder, or, if he is dead, of any person
entitled to the said estate together with any balances which may be due to the
credit 51 .lm15 of the said holder. All acts done or purporting to be, done by
the Manager during the continuance of the management of the estate shall be
binding on the holder or to any person to whom the possession of the estate has
been delivered." The provisions though applicable to landholders are
applied by s. 65(2) mutatis mutandis to the lands of non landholders. In other
words, the scheme of the management (apart from liquidation of debts) applies
to non landholders. The other provisions dealing with management for the
liquidation of debts, which are in the nature of the provisions of the Court of
Wards Act, may not be considered here because they are not relevant to our
We may next see some of the Rules which have
under s. 82 of the Act. Rule 30 provides for
a notice before action under s. 44 is taken and provides that the landholder's
statement shall be recorded as regards the intention of the Government to
assume management of the estate. Rule 33 provides that when a Manager proposes
to sell any estate or any part +hereof under s. 58 he shall give notice to the
landholder to show cause why the estate or a part thereof should not be sold
-and must afford him an hearing. The method of selling or leasing of the estate
under management or any part thereof is indicated in Rule 34 and it is by
public auction unless such a course is, in the opinion of the Manager,
unnecessary or inexpedient. Rule 35 is important and may be set down in extenso
"35. Period of continuance of management
of estates :(1) The Manager of an estate of which management has been assumed
shall, before the 31st day of March following the year in which the management
has been assumed. Send to the State Government a report regarding the management
of the estate and shall state whether in his opinion it is necessary to
continue the management for the purpose for which it was assumed.
(2) After taking into consideration the
report of the Manager made under sub-rule (1), the State Government shall
decide whether the management should be terminated under section 61 or
continued further and if so, for what period, such period not being in excess
of five years at a time.
52 (3) If the State Government decides to
continue the management the, Manager shall, from time to time, forward his
report through the Collector ,and shall in any case submit a report not later
than two months before the, expiry of the current period of the management to
enable Government to decide whether the management shall be terminated under
section 61 or shall further be continued :
Provided that if the management is to be
continued beyond the expiry of ten years from the date on which it was assumed,
the Collector shall hold a formal inquiry in the manner prescribed by the
Bombay Land Revenue Code, 1879, and, after recording the statement of the
landholder or any person acting on his behalf, shall submit the record and
proceeding of the inquiry and his report to the State, Government, which shall
be taken into consideration by the, State Government before it decides to continue
the management any further." The other Rules do, not bear upon the present
controversy and may be left out of consideration. We may now proceed to
consider this case.
The first question to consider is the vires
of the addition to 65 by the Amending Act, which addition has been shown in the
section quoted already. This matter has to be considered with reference to
Arts. 31-A and 31-B read with the Ninth 'Schedule. The protection is claimed on
the basis of these two articles by the State. Article 31-B no doubt gives
protection to all statutes listed in Schedule IX of the Constitution and this
Act is so listed. But it was listed before the amendment of s. 65 and that
amendment came to be said to have, been considered when the Amendment of the
Constitution was made. That Amendment if accepted as unassailable will have the
indirect effect of amending the original Schedule IX by including something in
it which was not there, before. This is undoubtedly beyond the competence of
any State legislature. The argument of the learned Attorney General that the
general schemes of the Preamble and the provisions of s. 44 made applicable by
s. 65(2) both of which have the protection of Art. 31-B must give protection is
fallacious. Even if the preamble and S. 44 could be read (and we do not decide
that they can be so read) to give validity it is clear that the preamble talked
only of landholders and the addition of the words to s. 65 is intended to apply
the principle to non landholders.
Similarly the provisions of s. 44 under the
un mended. Act, could not have been made applicable to such non53 landholders.
The amendment of s. 65 was really carrying the Act into new fields and not
being considered as an amendment of the Constitution, how can it claim the
protection given to the un amended Act? Therefore Art. 31-B and the Ninth
Schedule cannot be called in aid.
The matter may, however, be considered under
Art. 31-A. If Art. 31-A gives protection there would be an end to the
appellants' contention if not the matter must be considered on principles
settled by this Court. Article 31-A was relied upon strongly by the learned
Attorney General. He attempted to bring the amendment of s. 65 under clauses
(a) and (b) of Art. 31-A (1). We may now consider the matter under these two clauses
separately. Article 31-A(1) (a) and (b) read :
"31-A(1) Notwithstanding anything
contained in article 13, no law providing for-(a) the acquisition by the State
of any estate or of any rights therein or the extinguishment or modification of
any such rights, or (b) the taking over of the management of any property by
the State for a limited period either in the public interest or in order to
secure the proper management of the property, or" shall be deemed to be
void on the ground that it is inconsistent with, or takes away or abridges any
of the rights conferred by article 14, article 19 or article 31." The
amendment of s. 65 gives additional power of taking over lands of
non-landholders for management on two grounds. The first is that the land must have
remained uncultivated for the two consecutive years and the second is that full
and efficient use of the land had not been made of the land. In so far as the
first is concerned s. 65 in its original form included that condition and' it
cannot be challenged because of the protection of Art. 31-B read with the Ninth
Therefore action could be taken. against any
land which had remained uncultivated for two years. The action in this case is
not taken because of this part of s. 65 But in so far as the second part is
concerned the question must arise whether taking over of management can be said
to be (a) acquisition by the State or (b) extinguishment of the rights of the
holder or (c) modification of any such rights of these it is impossible to say
that this was an acquisition by the State That phrase has received construction
on more than one occasion in, this Court. Although the decisions cannot be said
to be uniform, 54 one thing is certain that the taking away must be for the
Slate and by the State. Such acquisition must transfer the ownership of the
property to the State or to a corporation owned or controlled by the State.
Since S. 65 or the, other provisions of the Act do not spell out any such
thing, there is no acquisition by the State. There is also no extinguishment of
the rights of the holder. The rights are merely suspended and he, continues to
be the owner. There can of course be extinguishment of rights without
acquisition by the State but there must be extinguishment, that is complete
termination of the rights. The scheme of the Act in S. 61 contemplates return
of the, lands unless sold to others and is those cases in which a sale is not
affected it cannot be said that there is an extinguishment of the rights.
Therefore that part ,of Art. 31-A(1) (a) does not apply. The third part namely
modification of rights might have been considered by us but this ,Court in
Thakur Raghubir Singh v. Court of Wards, Ajmer and another(1) gave a limited
meaning to the expression and that case has been applied on many occasions. It
was observed there :
"The learned Attorney-General laid
emphasis on the word modification" used in article 31-A.
That word in the context of the article only
means a modification of the proprietary right of a citizen like an extinguishment
of that right and cannot include within its ambit a mere suspension of the
right of management of estate for a time, definite or indefinite."
(emphasis added) Thus mere suspension of the right of management of one's
property without modification of the proprietary right was no+ held sufficient
to give protection of Art. 31-A (1) (a).
We would have given more thought to this
matter but for the re-enactment -of Art. 31-A with retrospective effect after
Thakur Raghubir Singh's case(1). Thakur Raghubir Singh's case did not interpret
the article as it is today. In view of the, retrospective amendment -of the
article it may be said that this Court interpreted an article which never was
enacted in that form. Therefore the less we speak of the matter from the angle
of observations in Thakur Raghubir Singh's case the better. But even so the
matter is not advanced much further.
Looking at the matter in the light of Art.
31-A as it is today (and it must be deemed to have been so always) 'management'
is specially provided in (b) and must be considered under that clause. The
words of that clause are 'the taking over of the ,management of any property'.
'Any property' means property (1)  S.C.R. 1049.
55 of any kind and would embrace land of
landholders and non landholders alike. The words 'by the State' indicate that
the taking over must be by the State. The next requirement is that this taking
over must be either in the public interest or in order to secure the proper
management of the property and lastly the taking over must be for a limited
period. The case here is covered by this clause and clause (a) is therefore not
It is, however, objected that the taking over
is not limited to any period. Section 61 which is protected by the Sixth
Schedule and cannot be called in question says that the State Government may
announce the termination of the management when it is satisfied that it is not
This does not set any limit leaving the
matter at large.
The learned Attorney-General however desired
us to read the rules to show that there is a limit of time. He says that the
rules be read in conjunction with the provisions of s. 61 because the section
does not give any indication of any limit of time. Although s. 61 may not by
itself be challengeable, the rules may be, notwithstanding that they were made
under powers given by s. 82. A limit of time was deliberately put in by the
constitutional amendment to distinguish between cases which fall within
management from those of extinguishment and modification. Without a limit of
time the management would be an excuse for deprivation of property without
compensation and that is not the intention of Art. 31 (a). It is hardly to be
thought that an antimony between Art. 31 and 31-A (1) (b)was deliberately
We do not express an opinion whether the
rules can be read to indicate the limited period of management or that the
scheme of the Act and the rules must be viewed together in this connection. But
we are clear that the rules do, not improve matters. Although it may not 'be
possible to attack s. 61 which enables the State to hold the property as long
as necessary as the section is protected, the action of the State in making
such rules as give no indication of a limit of time may be a circumstance to
consider if the claim of protection is made out. Under clause (b) of Art. 3 1 A
( 1 ) protection is to State action in taking over management for a limited
period and to laws enabling this to be done, but not to management unlimited in
time. Section 61 read with s. 81 must therefore require, that any rule made
should accord with the protection given on these terms by Art. 31-A otherwise
the protection will fail. Advantage of the words of s. 61 cannot be taken to
create a permanent deprivation of the property and yet claim protection of Art.
It is in this context that we must examine
We must first clear one misapprehension and
it is that the provisions of Chapter IV can be said to apply in to, It must 56
be remembered that that chapter is primarily concerned with the liquidation of
liability of land-holders and schemes to effect that purpose. Section 58 does
not give a clean power of sale, but only after a liquidation scheme is
That applies to landholders and may not be
made applicable to non-landholders.
To see how the management is to work in
respect of no landholders we have to turn to the rules. Here the pertinent rule
is r. 35. That rule requires a report from the. Manager after about a year to
enable the State Government to consider whether it is necessary to continue
management. The State Government may then decide to release the land from
management, or continue it. The management may continue for periods of 5 years
at a time on the strength of periodic reports but if management is to continue
beyond 10 years a formal inquiry is necessary and then Government may decide to
continue the management further.
No limit of time is then indicated. There is,
therefore, no limit set at all. The protection of Art. 3 1 A ( 1 ) (b) is
available only when there is a definite limit in the law for the period of
management. Neither s. 61 alone, nor read with the rules indicates any such
limit and the condition of protection from Articles 13, 14, 19 and 31 is thus
not available. The argument of the learned Attorney-General that so long as
there is a possibility of a return of the land to the original owner, we must
construe the management as of a limited period is not acceptable to us. It is
hardly to be expected that a return of property which is on the Greek Kalends
can be construed as a return within a limited period. Therefore the scheme of
the Act ought to have shown the limit. It may not be possible to question the
un-amended section 65 because of Art. 31-B or the provisions of s. 61 which is
also protected but in respect of the addition to s. 65 the protection of Art.
31A(1) (b) can only be invoked if the law can show a real limit for the period
of management. If the management is likely to continue for an indefinite period
it is not in any sense limited and, therefore, the amended part cannot claim
protection, s. 61 notwithstanding.
Once the matter can be gone into the
provisions of the additional part will have to be examined for reasonableness.
Here the difficulties are many for the State.
We mention only a few of them. There is nothing to show what are the
requirements of action. The deprivation of property is made to depend upon the
subjective determination of an officer.
Take for example this case itself. Action is
taken under the, impugned part of s. 65. Agriculture includes growing of grass,
and other definitions emphasise the need of growing grass by including the
operation in the word cultivation'. Grass is as important for agricultural
communities as food grains and fruits. Without the former the cattle must die
just as without the latter there would be human starvation.
57 The Act, therefore, gives importance to
both, naming grass along with crops and garden produce and horticulture. If
grass is being grown as an agricultural operation, one cannot just take grass
lands and convert them into orchards.
Similarly orchards cannot 'be taken and
turned into pastures. Before action is taken it must be quite clearly
established that the kind of agriculture which is being carried on is being
carried on inefficiently or that there is some distinct advantage in the new
management to carry on the new kind of agriculture. The Deputy Collector merely
thinks that the land can grow grain or fruits. But so can any grass land or
pasture. There is nothing to show that from an agrarian point of view grass
grown in these lands was not necessary at all or was being inefficiently grown.
A person is entitled to hold and enjoy his
property as he thinks best. If regard is to be had for the benefits of society
a clear law and a clear determination are required.
Both the elements are missing. It is not said
in what circumstances cultivation can be said to be inefficient.. It is also
not said what would be considered efficient cultivation and what inquiries are
needed to determine this.
It is also not said under what circumstances
different kind of cultivation can be imposed upon the land. The law does not
provide for an Opportunity to the cultivator to change his cultivation from one
kind to another. It does not even require, that the management should be
efficient. After taking over the lands the Manager can lease them to others but
it is not stated what conditions they have to observe.
Merely on the opinion of an officer, land may
be taken away 'because the officer thinks that wheat is to be preferred to
fruits and fruits to grass and so on and so forth. The management is taken over
without any clear limit of time.
In these circumstances it is difficult to
uphold the declarations made in these cases or to give them the protection of
Art. 31-A(1) (b).
The appeals will, therefore, be allowed with
costs and the orders of the Deputy Collector quashed. There shall be one set of
hearing fee in each group, where same counsel appeared for Y.P. all the