Thakur Raghubir Singh Vs. Court of
Wards, Ajmer, & ANR [1953] INSC 43 (15 May 1953)
CHAND MAHAJAN, MEHR CHAND MUKHERJEA, B.K.
HASAN, GHULAM BHAGWATI, NATWARLAL H.
JAGANNADHADAS, B.
CITATION: 1953 AIR 373 1953 SCR 1049
CITATOR INFO :
D 1955 SC 795 (9) R 1956 SC 559 (4) R 1958 SC
578 (177) R 1959 SC 459 (40) E 1959 SC 519 (13) D 1960 SC 468 (6) R 1961 SC 705
(13) E 1961 SC 954 (23) RF 1962 SC1371 (36,41) R 1965 SC 632 (11) R 1969 SC 168
(11)
ACT:
Constitution of India, 1950, arts. 19(1) (f),
19(5), 31-A-Ajmer Revenue and Land Records Act (XLII of 1950) s. 112-Ajmer
Government Wards Regulation (I of 1888), ss. 6, 7Law declaring landlords who
habitually infringe the rights of a tenant to be disqualified proprietors and
empowering Court of Wards to assume management of their lands Validity-Infringement
of fundamental right-ReasonablenessScope of article 31-A-"Modification of
rights," meaning of.
HEADNOTE:
Section 112 of the Ajmer Tenancy and Land
Records Act (XLII of 1.950) provided that "if a landlord habitually
infringes the rights of a tenant under this Act, he shall, notwithstanding any
thing in section 7 of the Ajmer Government Wards Regulation, 1888 (I of 1888)
be deemed to be a 'landlord who is disqualified to manage his own property'
within the meaning of section 6 of the said Regulation and his property shall
be liable to be taken under the superintendence of the Court of Wards."
Section 6 of Regulation I of 1888 provided that the Court of Wards may, with
the previous sanction of the Chief Commissioner, assume the superintendence of
the property of any landholder who is disqualified to manage his property. The
petitioner, whose estate was taken over by the Court of Wards under the
above-mentioned provisions of law, applied for relief under art. 32 of the
Constitution for restoration of his estate and other appropriate reliefs:
Held, (1) that the result of the combined
operation of s. 112 of Act XLII of 1950 and the provisions of ss. 6 and 7 of
Regulation I of 1888 was that the Court of Wards could in its own discretion
and on its subjective determination assume the superintendence of the property
of a landlord who habitually infringed the rights of his tenants, and the
exercise of the discretion of the Court of Wards cannot be questioned in a
civil court; s. 112 of Act XLII of 1950 read with the provisions of Regulation
I of 1888 therefore infringed the fundamental rights of the petitioner
guaranteed by art. 19 (1) of the Constitution and was to that extent void;
(ii) the provisions of s. 112 cannot be
regarded as a " reasonable" restriction imposed in the interests of
the general public on the exercise of the right conferred by art. 19 (1) (f),
because they completely negatived the right by making its enjoyment depend on
the mere discretion of the executive;
136 1050 (iii)that s. 112 was not validated
by art. 31-A of the Constitution as it was not "a law providing for the
acquisition by the State of any estate or of any rights therein or for the
extinction or modification of any such rights" within the meaning of art.
31-A. The word "modification" in the context of art. 31-A 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 the estate for a time, definite or indefinite.
ORIGINAL JURISDICTION: Petition No. 29 of
1953.
Petition under article 32 of the Constitution
of India praying that the Court of Wards, Ajmer, be ordered to forbear from carrying
on the superintendence of the istimrari estate and other properties of the
petitioner and for restoration of possession and management of the said estate
and properties.
J.B. Dadachanji and H. C. Sogain for the
appellant.
M.C. Setalvad, A ttorney-General for India,
(Bhava Datta Sharma, with him) for the respondents.
1953. May 15. The Judgment of the Court was
delivered by MAHAJAN J.-This is a petition under article 32 of the Constitution
seeking relief against alleged infringement of certain fundamental rights of
the petitioner and arises in these circumstances.
The petitioner owns an " istimrari
estate" in the State of Ajmer under an istimrari sanad granted to his
ancestor in the year 1875. He enjoys therein a life interest with an obligation
to perform certain duties as prescribed by the Ajmer Land and Revenue
Regulation (11 of 1877).
The Deputy Commissioner of Ajmer, who is the
Court of Wards constituted under the Ajmer Government Wards Regulation (I of
1888), took over possession and assumed superintendence of the said estate on
the 18th September, 1952, purporting to act under sections 6 and 7 of the
Regulation read with section 112 of the Ajmer Tenancy and Land Records Act,
1950 (XLII of 1950), and hence this petition for a writ of mandamus or one in
the nature thereof, or for the issue 1051 of a direction to the Court of Wards
for restoration of possession of the estate and for an order directing it to
forbear from carrying on the superintendence of the estate.
The order made by the Court of Wards on the
18th September, 1952, is impugned as being void and of no effect whatever,
because it is alleged that the statutory provisions under which it is purported
to have been made contravene the provisions of Part III of the Constitution and
take away and abridge the petitioner's rights guaranteed by article 19 (1) (f)
of the Constitution.
Section 112 of Act XLII of 1950 is one of a
group of 7 sections in Chapter X of the Act which deals with the subject of
" Compensation and Penalties ". The section prescribes penalties for
habitual infringement of rights of tenants and reads thus:" If a landlord
habitually infringes the rights of a tenant under this Act, he shall,
notwithstanding anything in section 7 of the Ajmer Government Wards Regulation,
1888 (I of 1888), be deemed to be a "landlord who is disqualified to
manage his own property " within the meaning of section 6 of the said
Regulation and his property shall be liable to be taken under the
superintendence of the Court of Wards ".
The preceding section 110 is in these terms:"If
a landholder or his agent collects from a tenant any lag or neg, he shall be
deemed to have committed an offence of extortion within the meaning of the
Indian Penal Code (Act XLV of 186O) Just as section II 0 declares an illegal
exaction by a landlord to be an offence under the Indian Penal Code, in like
manner, section 112 declares a landlord who habitually infringes the rights of
a tenant " a person disqualified to manage his own property " within
the meaning of section 6 of Regulation I of 1888, the consequence being that
his property becomes liable to be taken over by the Court of Wards. The section
is an ingenious and novel device to punish landlords who habitually infringe
the rights of tenants. It authorizes 1052 the use for punitive purposes of the
machinery of Regulation I of 1888 enacted to make better provision for the
superintendence of Government Wards in Ajmer Merwara. By force of the
declaration in section 112 of the Act, landlords who habitually infringe the
rights of the tenants fall within the category of persons incapable of managing
their own property and come within the ambit of section 6 of the Regulation,
which is in these terms:,, The Court of Wards may, with the previous sanction
of the Chief Commissioner, assume the superintendence of the property of any
landholder who is disqualified to manage his own property ".
The result therefore of the combined
operation of section 112 of Act XLII of 1950 and of the provisions of
Regulation I of 1888, is that the Court of Wards can in its own discretion and
on its subjective determination, assume the superintendence of the property of
a landlord who habitually infringes the rights of his tenants. The condition
precedent to such assumption of superintendence is the previous sanction of the
Chief Commissioner, the giving of which is also a matter entirely resting on
his discretion. Section 27 of Regulation I of 1888 provides that " the
exercise of any discretion conferred on the Court of Wards or the Chief Commissioner
by this Regulation shall not be called in question in any civil court ".
It was conceded by the learned Attorney-General appearing for the State of
Ajmere that there was nothing in the contents of either Act XLII of 1950 or
Regulation I of 1888 which provided a machinery for determining the question
whether a certain landlord was a person who was habitually infringing the
rights of his tenants. Under Regulation I of 1888, the assumption by the Court
of Wards of the superintendence of the property of a disqualified proprietor
depends merely on the subjective determination of the Deputy Commissioner or
the Commissioner or of the Chief Commissioner, and the exercise of this
discretion cannot be questioned in any manner in a civil court. Act XLII of
1950 says nothing whatsoever on this subject.
1053 The contention that the provisions of
section 112 of Act XLII of 1950 read with the provisions of Regulation I of
1888 infringe the fundamental right of the petitioner guaranteed by article 19
(1) (f) of the Constitution, is, in our opinion, well-founded and does not
require any elaborate discussion. The petitioner's right to hold the istimrari
estate and his power of disposal over it stand abridged by the act of the Court
of Wards authorized by these provisions. His right to manage the estate and
enjoy possession thereof stands suspended indefinitely and until the time that
the Court of Wards chooses to withdraw its superintendence of the property of
the petitioner. During this period, he can only receive such sums of money for
his expenses as the Court of Wards decides in its discretion to allow. Thus,
the provisions of section 112 of Act XLII of 1950 clearly abridge the
fundamental right of the petitioner under article 19 (1) (f) and are to that
extent void.
The learned Attorney-General canvassed for
the validity of the provisions of section 112 on three grounds. He contended
that the determination of the question whether a certain landholder was a
person who habitually infringed the rights of his tenants did not depend on the
opinion of the Court of Wards, but was a matter that could be agitated and
canvassed in a civil court. It was said that there were no words in the section
from which it could be inferred that the determination of this fact depended on
the subjective determination of the Court of Wards. It was emphasized that the
section had not used the familiar language "in its opinion" or words
like that, which are usually employed to indicate whether a matter depends on
the subjective determination of an authority or whether it can be agitated in a
civil court. This contention, in our opinion, is not well-founded. As already
pointed out, Act XLII of 1950 has prescribed no machinery for the determination
of the question whether a landlord is guilty of habitually infringing the
rights of his tenants, and rightly so, because section II 2 of the Act is
merely of a declaratory character and 1054 declares such a landlord as being
under a disability and suffering from an infirmity. This declaration becomes
operative and effective only when the Court of Wards in its discretion decides
to assume superintendence of the property of such a proprietor. In other words,
when the Deputy Commissioner or the Commissioner or the Chief Commissioner is
of the opinion that such a proprietor should be deprived of possession of his
property, this determination then operates to the prejudice of the landlord,
but he cannot challenge the exercise of the discretion by these officers in
view of the provisions of section 27 of Regulation I of 1888. The result then
is that by the subjective determination of the Court of Wards, both the
questions whether a particular person habitually infringes the rights of his
tenants and whether his property should be taken over by the Court of Wards,
stand settled and the landlord cannot have recourse to a civil court on these
questions. The learned Attorney-General was not able to draw our attention to
any provision in the Court of Wards Act or in Act XLII of 1950 which enabled
the landlord, held to be a habitual infringer of the rights of his tenants, to
have recourse to a civil court to test the correctness of the determination
made by the Court of Wards. The provisions of Regulation of 1888 clearly
indicate the contrary.
Next, it was argued that the provisions of
section 112 amount to reasonable restrictions on the exercise of the right
conferred by article 19 (1) (f) of the Constitution on a citizen, and these
restrictions are in the interests of the general public. In our judgment, this.
argument also is not sound. As indicated above, the provisions of section 112
of Act XLII of 1950 are penal in nature and are intended by way of punishment
of a landlord who habitually infringes the rights of his tenants. He is
punished by being placed at the mercy of the Court of Wards and by being made
subject to the stringent provisions of Regulation I of 1888. An enactment which
prescribes a punishment or penalty for bad behaviour or for misconduct of a
landlord cannot possibly be regarded as restriction on a fundamental 1055
right. Indeed, a punishment is not a restriction. This was frankly conceded by
the learned Attorney-General. It is still more difficult to regard such a
provision as a reasonable restriction on the fundamental right. When a law
deprives a person of possession of his property for an indefinite period of
time merely on the subjective determination of an executive officer, such a law
can, on no construction of the word "reasonable" be described as
coming within that expression, because it completely negatives the fundamental
right by making its enjoyment depend on the mere pleasure and discretion of the
executive, the citizen affected having no right to have recourse for
establishing the contrary in a civil court. Section 112 of Act XLII of 1950
cannot therefore be held valid as coming within the scope of article 19 (5) of
the Constitution.
Lastly, it was contended by the learned
Attorney General that section 112 was valid by reason of the curative
provisions of article 31 -A of the Constitution. That article validates laws
which would otherwise contravene the fundamental right in article 31(2) of the
Constitution, but its operation is restricted to laws providing for acquisition
of estates etc. It runs as follows:" Notwithstanding anything in the
foregoing provisions of this Part, no law providing for the acquisition by the
State of any estate or of any rights therein or for the extinguishment or
modification of any such rights 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 any provisions of this Part........
Section II 2 of Act XLII of 1950, intended to
regulate the rights of landlords and tenants, is obviously not a law providing
for " the acquisition by the State " of the estates of the landlords,
or of any rights in those estates.
It is also not a law providing for the
extinguishment or modification of any such rights. The learned Attorney General
laid emphasis on the word modification " used in article 31 -A, That word
in 1056 the context of the article only means a modification of the proprietary
right of a citizen like an extinguishment of that right and can not include
within its ambit a mere suspension of the right of management of estate for a
time, definite or indefinite. Historically speaking, article 31 -A which has
relation to article 31(2) of the Constitution, has no relevancy whatsoever to
the law enacted in section 112 of the Act XLII of 1950.
For the reasons given above, we are of the
opinion that the law enacted in section 112 of Act XLII of 1950 is not saved
either by clause (5) of article 19 or by article 31-A of the Constitution. It
manifestly infringes the fundamental right of the petitioner guaranteed by
article 19 (1) (f) of the Constitution. That being so, the petitioner is
entitled to a direction that possession of his estate be restored to him. We
accordingly direct the Court of Wards, Ajmer-Merwara, constituted under the
Ajmer Government Wards Regulation, I of 1888, to forbear from carrying on
superintendence of the petitioner's istimrari estate and the other properties
taken possession of, and to restore their possession to the petitioner. The
petitioner will have the costs of this petition.
Petition allowed.
Agent for the petitioner : I. N. Shroff.
Agent for the respondents: G. H.
Rajadhyaksha.
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