Shivdev Singh Vs. The State of Punjab
[1962] INSC 218 (27 July 1962)
WANCHOO, K.N.
WANCHOO, K.N.
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR,
P.B.
SUBBARAO, K.
SHAH, J.C.
CITATION: 1963 AIR 365 1963 SCR (3) 426
ACT:
Delegated Legislation--Ceiling on land
fixed--Exemption of efficiently managed farms--Part of rule going beyond rulemaking
power--Not severable--Whole rule ultra vires--The PEPSU Tenancy and
Agricultural Lands Act, 1955 (Pepsu 13 of 1955), as amended by Act XV of 1956,
ss. 32A, 32k--Rules, 1958, r.31.
HEADNOTE:
The PEPSU Tenancy and Agricultural Lands Act
was enacted in March, 1955. It was amended in October, 1956, and Chs. IVA and
IV-B were added. Chapter IV-A provides for ceiling on land and s. 32-A in that
chapter fixes the permissible limit of land which could be owned or held by any
person a; landlord or tenant under his personal cultivation. Section 32K
provides for exemption of efficiently managed farms consisting of compact
blocks on which heavy investment or permanent structural improvements had been
made, and whose break-up was likely to lead to a fall in production. Rules were
framed in March, 1958, to carry out the purposes of the Act. Rule 31 lays down
the procedure how the exemption of efficiently managed farms was to be
determined. Sub-rule (2) provides that the PEPSU Land Commission, which was to
be appointed to advise the State Government with regard to the exemption of
lands from the 427 ceiling in accordance with the provisions of s. 32K, shall
assign marks in the manner provided in sub-r. (4) in order to decide whether a
farm was efficiently managed or not, and whether it consisted of compact blocks
on which heavy investment or permanent structural improvements had been made
and whose break-up was likely to lead to a fall in production. Farms were
classified as Class A, Class B and Class C farms. Class A farm was to be deemed
to be an efficiently managed farms$ 50% of the area of a farm of Class B was to
be deemed to be an efficiently managed farm, and no area under a farm of Class
C was to be deemed to be an efficiently managed farm.
In writ petitions filed in this court, the
petitioners did not challenge the constitutionality of Chs. IV-A and IV.B, but
they challenged the constitutionality of r. 31. Their contention was that the
Commission when enquiring into their claim of exemption under s. 32K(1)(iv) of
the Act was bound to follow the requirements of r. 31 in addition to the
fulfillment of the conditions laid down in s 32K(1)(iv).
The Petitioners contended that the standards
of yields prescribed in Schedule C under r. 31 were arbitrary, obnoxious,
unreason. able, hypothetical, completely unrealistic and unattainable in any
modern farm and were repugnant to the provisions of the Act. The system of
marking evolved under r. 31 was completely alien and foreign to the Act. Rule
31 went beyond the power conferred on the State Government under s. 32K and was
ultra vires the Act.
The rule was a colourable piece of
legislation and the object of framing it was to defeat the purpose of the Act
so that no exemption may be granted although the legislature intended to grant
exemption to efficiently managed farms.
The rule fettered the judgment and discretion
of the Commission which could not be done under the Act.
Held, that, Chs. IV.A was a measure of land
reform and was intended to provide for equitable distribution of land and with
that object s. 32-A provided for ceiling on land holding by an individual.
Before a farm could claim exemption from the ceiling fixed in s. 32-A, it had
to be proved that the farm was efficiently managed, it consisted of compact
blocks, heavy investment or permanent structural improvements had been made on
it and its break-up was likely to lead to fall in production. The first three
conditions were concerned with the efficiency of the farm and the fourth with
the yield from the farm.
428 The Act contemplates the framing of rules
to give objective guidance to the Commission in carrying out its duties. In
evolving the marking system as provided in r. 31, the discretion of the
Commission was not fettered and its independence was not made illusory. So long
as the marking system took into account what was required under s. 32K(1) (iv),
that did not go beyond what was contemplated by the legislature. Schedule C did
not fix an unattainable standard and was not a malafide exercise of the power
to frame rules with the object of defeating the intention of the legislature.
The standards of yields were not too high or unattainable.
The creation of Class B farms under r. 31(2)
was beyond the provisions of s. 32K, and hence must be field to be ultra vires
that section. The creation of Class B farms was so integrated with the whole of
Rule 31 that it was not possible to excise Class B farms only from that rule
and leave the rest of the rule unaffected; therefore the whole of r. 31 along
with Schedules B and C must be struck down as ultra vires the provisions of the
Act, particularly s. 32-K.
There was nothing in the Act to show that
once an efficiently managed farm was taken out of the provisions of s. 32-A on
the advice of the Commission, the State Government could, later on, cancel the
exemption and apply s. 32-A to it, and, hence, r. 31 (3) must be struck down as
ultra vires the Act.
The proviso to r. 31(4)(b) inasmuch as it
obliged the Commission to apply Schedule C on a mathematical basis, must be
struck down as going beyond the rule-making power conferred under the Act. The
Commission had to take into account the quality of the land, natural calamities,
and the rotation of crops while determining the yield from land.
Rule 31 must therefore be struck down as a
whole.
ORIGINAL JURISDICTION -Petitions Nos. 261 and
365 of 1961.
Petitions under Art. 32 of the Constitution
of India for enforcement of Fundamental Rights.
C. K. Daphtary, Solicitor-General of India K.
P. Bhandari and B. Gopalakrishnan, for the petitioners (in Petn. No. 261/61).
429 K. L. Goshin and K. L. Mehta, for the
petitioners (in Petn. No. 365 of 61).
S. M. Sikri, Advocate-General for the State
of The Punjab, N. S. Bindra and P. D. Menon, for the respondents.
1962. July 27. The Judgment of the Court was
delivered by WANCHOO J.-These two petitions raise a question as to the validiy
and constitutionality of r. 31 framed under the Pepsu Tenancy and Agricultural
Lands Act (Act No. 13 of 1955) as amended by Pepsu Act No. 15 of 1956,
(hereinafter referred to as the Act) and will be dealt with together.
The attack on the rule is practically similar
in the two petitions and therefore we shall only give the facts in Petition No.
261 to understand the nature of the attack.
The petitioners in Petition No. 261 are
landowners in village Dhamo Majra, District Patiala, in the State of Punjab.
They are running an agricultural farm on a mechanised scale and the area of the
farm measures 421 acres. This area is a compact block of land and it is said
that some part of the area is potentially of high productivity whereas other
area is of inferior quality and less productive capacity by reason of the presence
of alkaline patches of soil therein. The land was originally scrub jungle and
was uneven and extensive reclamation was carried on by the petitioners at heavy
cost. They spent a large amount far terracing and leveling the land,
constructing bundhs, water channels, approach roads and in standardising the
area of the fields. Two wells were constructed for providing irrigational
facilities and the petitioners have their own electric substation for the
purpose. They have also constructed manure pits and have made permanent
structural improvements in the shape of construction of roads, servant
quarters, tractor sheds, cattle-sheds 430 and stores, and have in all incurred
expenses over rupees three lacs for all these purposes. The petitioners are
carrying on farming on the basis of scientific cultivation practices, sowing
practices and manure practices and because of the use of modern technique the
overall yield per acre is very high keeping in view the fertility and nature of
the soil.
On March 4, 1952, the Act was enacted. It was
amended on October 30, 1956 and Chaps. IV-A and IV-B were introduced therein.
The petitioners have not challenged the constitutionality of these two chapters
and their attack is only on r. 31 framed under the powers conferred on the
State Government under these chapters. The scheme of Chap. IV-A is to provide
ceiling on land and s. 32-A thereof fixes the permissible limit of land which
can be owned or hold by any person as landowner or tenant under his personal
cultivation. "Permissible limit" is defined in s. 3 of the Act and
means "thirty standard acres of land and where such thirty standard acres
on being converted into ordinary acres exceed eighty acres, such eighty
acres". A "standard acre" is defined in s. 2 (1) as "a
measure of land convertible with reference to yield from, and the quality of
the soil, into ordinary acres according to the prescribed scale".
Section 32-B prescribes for returns by the
person having land in excess of the ceiling. Section 32-D provides that the Collector
shall prepare a draft statement in the manner prescribed showing, among other
particulars, the total area of land owned or held by a person, the specific
parcels of land which the landowner may retain by way of his permissible limit
or exemption from ceiling and also the surplus area. Section 32-E provides for
the vesting of the surplus area in the State Government. Section 32F offices
power to the Collector to take possession the surplus area.
Section 32-G provides for principles of
payment of compensation and sea'. 32-J for the 431 disposal of the surplus
area. Then comes s. 32-K (1) with which we are mainly concerned and the
relevant part of it is in these terms:"32-K (1)-The provisions of section
32A shall not apply to
(i) .......
(ii) ......
(iii) .....
(iv) efficiently managed farms which consist
of compact books on which heavy investment or permanent structural improvements
have been made and whose break-up is likely to lead to a fall in production;
(v) .......
(vi).......
Section 32-.P which is in Chap. IV-B provides
for the establishment of a Commission called the Pepsu land Commission
(hereinafter referred to as the Commission), and sub-ss.
(4) and (5) thereof are in theme terms"(4)
Subject to the provisions of this Act and in accordance with any rules which
may be made by the State Government in this behalf, it shall be the duty of the
Commission to
(a) .......
(b) ........
(c) advise the State Government with regard
to exemption of lands from the ceiling in accordance with the provision of
section 32.K. 432 (5) The advice given by the Pepsu Land Commission under
clause (e) of subsection (4) shall be binding on the State Government and
notwithstanding anything in section 32-D no final statement shall, in a case in
which exemption is claimed under section 32-K be published unless such advice
is included therein." Section 52 given power to the State Government to
frame rules to carry out the purposes of the Act.
By virtue of the power conferred on the State
'Government to frame rules, Rules were framed in March 1958 to carry out the
purposes of the Act. We are concerned in the present petitions only with rr. 5
and 31. Rule 5 read with Sch. A provides for conversion of ordinary acres into
standard acres and r. 31 lays down how the exemption of efficiently managed
arms shall be determined, Sub-rule (1) thereof provides that if any person
wishes to claim exemption from the coiling under cl (iv) of sub-s. (1) of B.
32-K of the Act, be shall also furnish information in form XI to the Collector
along with information required through other forms prescribed under the. Rules.
Sub-rule (2) lays down that the Commission shall assign marks in the manner
provided in subr. (4) in order to decide whether it is a farm which is
efficiently managed and consists of compact blocks on which heavy investment
straotural improvements have been made and whose break-up is likely to lead to
a fall in production;
and further makes the following
classification of farms :"Claw A : If it is awarded 80 per centum or more
marks Class B : If it is awarded 60 to 80 per centum marks.
433 Class C : If it is awarded less than 60
per centum marks." It is further provided that a class A farm shall be
deemed to be an efficiently managed farm and fifty per centum of the area under
a farm of Class B shall subject to the choice of the landowner, be deemed to be
an efficiently managed farm and that no area under a farm of class C shall be
deemed to be an efficiently managed farm. Sub-rule (3) further provides that
"the above classification of farm shall be revised by Government annually
in the months of January and February, and if any efficiently managed farm
ceases to be so, the exemption granted in respect there of shall, subject to
the other provisions of the Act, be withdrawn by Government". Sub'-rule
(4) (a) provides that "the maximum marks to be awarded to a farm, for the
purposes of classification, shall be 1,000" and sub-r. (4) (b) provides
that the features for which marks are to be awarded are those given in Sch. B
and marks shall be awarded for each feature subject to the maximum marks noted
against each in that schedule, provided that in allotting marks for
"Yield" the Commission shall apply the standard yields given in Sch.
C. From XI lays down the particulars and there are two Sch. B and C. Out of the
total of 1000 marks, 500 marks are prescribed for various features mentioned in
items I to IX of Sch. B while 500 marks are for yield. The land in the former
Pepsu State is divided into four classes for the purpose of Sch. B. viz.,
mountaneous, sub-montane central prescribes average yield in maunds of various
crops per acre for irrigated and un irrigated lands.
This in brief is the scheme of Act and r.32
framed there under. The petitioners' case is that the Commission is inquiring
into the petitioners' claim of 434 exemption under s. 32 K (1) (iv) of the Act
and in doing so it is bound to follow the requirements of r.31 in additionto
the fulfillment of the conditions in cl. (iv) of s.32-K (1). The petitioners
contend that the standards of yields prescribed in sch. under r. 31 are
arbitrary, obnoxious, unreasonable, hypothetical, completely unrealistic and
unattainable in any modern farm and are repugnant to the provisions of the Act.
It is further contended that the system of marking which has been evolved under
r. 31 is completely alien and foreign to the Act. Reliance is placed on behalf
of the petitioners on the observations of the SubCommittee set up by the
planning Commission on the problems of Re-organisation, panel on land Reforms
for the purpose of suggesting standards of efficient cultivation and management
and sanctions for the enforcement of standards, when it said that though
"an obvious test of good husbandry may appear to be the comparative yield
of crops, or the gross produce per acre", theSub-Committee was of the
opinion for various reasons which it mentioned that ',the yield varied with a
number of factors whose effects cannot be measured quantitatively, such as
location the fertility and texture of the soil, the vagaries of the climate,
the incidence of epidemics etc. which are beyond the control of the
farmer".
The Sub Committee was therefore not prepared
to apply the test of yield as the sole test of good husbandry. The petitioners
further allege that the yield fixed by Sch. C showed great disparity between it
and the actual average produce par acre for different crops in different States
of India and in different districts of Pepsu, and obviously results in
discrimination. It is also urged that the standards fixed by Sch. C were
unattainable and therefore the petitioners' claim for exemption under a. 32 K
(1) (iv) would be seriously jeopardized if r. 31 is applied. It is contended
that the rule goes beyond the power 435 conferred on the State Government under
a. 32 K and was therefore ultra vires the Act. Further, it is urged that r.
31 along with the two Schedules was a
colourable piece of legislation and the object of framing it was to defeat the
purpose of the Act with the intention of seeing that no exemption may be
granted even though the legislature intended under s. 32 K (1) (iv) to grant
exemption to efficiently managed farms. It is also urged that by making r. 31,
the State has fettered the judgment and discretion of the Commission which it
could not do under the Act. The petitioners therefore pray that r. 31 should be
struck down as ultra vires of the Act and also as unconstitutional and the
respondents should be directed not to give effect to r.
The petitions have been opposed on behalf of
the State of Punjab which is successor to the former State of Papsu and it has
been urged that r. 31 does not go beyond the rule making power conferred on the
State Government and is intra vires the Act and is not unconstitutional. We do
not think it necessary to set out in detail the points raised in the reply of
the State, as they will appear from the discussion in the later part of this
judgment. Suffice it to say that the State has challenged all the grounds
raised on behalf of the petitioners in support of their case that r. 31 is
ultra vires the Act and unconstitutional.
In order to determine the question raised in
these petitions, it is necessary to refer to the scheme of Chapter IV-A of the
Act and the implications of exemption provided under s. 32 K(1) (iv). Chapter
IV-A is obviously a measure of land reform and is intended to provide for
equitable distribution of land and with that object a. 32 A provides for
ceiling on land holdings by an individual. The constitutionality of the Act, as
we have already said, has 436 not been challenged and therefore it must be held
that the provisions of Chap. IV-A when they provide for ceiling on land and
disposal of surplus land are reasonable restrictions on the right of persons
holding land. Section 32 K (1) however provides that the provision as to
ceiling contained in 8. 32-A shall not apply to certain type of lands and one
of those types is mentioned in el. (iv) thereof (namely, efficiently managed
farms which consist of compact blocks on which heavy investments or permanent
structural improvements have been made and whose break-up is likely to lead to
a fall in production). Therefore, before any farm can claim that the ceiling as
contained in s.32-A shall not apply to it. it has to comply with the conditions
in cl.
(iv). These conditions which may be deduced
from cl.
(iv) are:(i) that the farm should be
efficiently managed;
(ii) that it should consist of compact blocks
;
(iii) that heavy investment or permanent
structural improvements must have been made on the farm; and (iv) the break up
of the farm is likely to lead to a fall in production.
Before therefore a person owning or holding a
farm can claim exemption from the ceiling provided in s. 32 A he has to show
that his farm complies with all the four conditions mentioned above. In
particular, before a person owning or holding a farm can claim that s. 32 A
should not be applied in his case he must show that a break up of the farm is
likely to lead to a fall in production. It will thus be clear that the first
three conditions under s. 32 K (1) (iv) are concerned with the efficiency of
the farm which has to be taken out of s. 32 A while the fourth condition is
concerned with the yield from 437 the farm. Therefore, whatever may have been
the view of the Sub-Committee of the Planning Commission with respect to yield
as a criterion of good' husbandry, there is no doubt that s. 32 K (1) (iv)
requires the it in considering whether the ceiling provided in a. 32A shall be
applied to a particular farm, its yield must taken into consideration and the
farm can only avoid its break up if the result of the,, break up is 'likely to
lead to a fall in production.' There can be no doubt therefore that in order
that a farm may get the benefit of a. 32K (1) (iv) it must satisfy the four
conditions set out above.
ion The Act has provided by s. 32 p that the
quest-, whether a farm should get the benefit of s. 32 "I K (1) (iv) will
be decided by the Commission, Subsection (4) of s. 32p lays down that it will
be the duty of the Commission, subject to the provisions of the Act and in
accordance with the Rules which may be made by the State Government, to advise
the State Government with regard to exemption of lands from the ceiling in
accordance with the provisions of a. 32K. Sub-section (5) provides that the
advice given by the Commission shall be binding on the State Government.
Sub-section (4) itself shows, in addition to
the general power of the State Government to frame rules under a. 52 for
carrying out the purposes of the Act, that the State Government has the power
to frame rules for the guide of the Commission in carrying out its duties
under, a. 32p (4) (c), Rule 31 has obviously been framed with that object. The
petitioners however attack the marking system evolved under that rule on the
ground that this is completely alien and foreign to the Act. We cannot agree
with this contention.
It is true that the Commission would have to
decide whether a farm is entitled to the benefit of a. 32K. If no rules had
been framed the matter would have been left at large for determination of the
Commission to the best of its ability.
It is true that the 438 Commission consists
of a Chairman who is or has been a Judge of the High Court and two members to
be nominated by the State Government having special knowledge or practical
experience of land or agricultural problems, even so we do not think that the
Act did not contemplate framing of rules which will give certain objective
guidance to the Commission in carrying out its duties. We do not think that in
evolving the marking system as provided in r. 31 the Commissions discretion has
been fettered and its independent judgment made illusory. So long as the
marking system takes into account what is required under s. 32 K (1) (iv) in.
order to claim exemption from ceiling it
cannot be said that the marking system that has been evolved is something
beyond what was contemplated by the legislature. A perusal of Sch.
B. to r. 31 shows that items I to IX which
deal with layout, cultivation practices, sowing practices, manure practices,
soil conservation practical, development of irrigation facilities, plant
protection measures, keeping of records and miscellaneous items (like quality
of draught and milch animals and their maintenance, arrangement for storage of
produce, small orchards, home poultry farm, apiculture, sareculture,
participation in co-operative associations, treatment with labour etc.) are all
meant to evaluate the first three conditions in s. 32 K (1) (iv) as indicated
by us above. We have been pointed out only one item in Sch. B under head
"lay-out" which seems to be out of place and which carries 9 marks
out of 500 marks. That item is voluntary consolidation and the criticism on
behalf of the petitioners is that too long as the area is compact it is
immaterial how that compactness has been achieved, whether voluntarily or
otherwise. Barring this item all the other items appear to carry out the first
three conditions mentioned by us above 439 and therefore the Commission will
have a standard when it considers the question of exemption of farms. It has
full discretion to evaluate the various features set out in Sch. B items I to
IX and has full power to give such marks as it thinks fit. I cannot therefore
be said that by providing the marking system in Sch. B the rule has in any way
fettered the discretion and judgment of the Commission, and affected its
independence. Further item X in Sch. B is with respect to "Yields"
and carries 500 marks out of a total 'of 1000 marks. Thus the system behind
Sch. B is that half the total number of marks is provided for the first three
conditions and the other half is provided for the yields. We have already
mentioned that the fourth condition under a. 32 K (1)(iv) shows that one of the
main qualifications for exemption from ceiling under a. 32 K is that the
production of the farm should be such that its break-up shall lead to a fall in
production. In the circumstances we do not think that it can be said that the
allotment of half the total number of marks to yields in Sch. B is in any
manner contrary to the intention of the legislature. We cannot therefore accept
the contention of the petitioners that the marking system which has been
evolved in Soh. B is in any way foreign to the purposes of the Act or in any
way it fails to carry out the object behind s. 32 K (1)(iv). The marking system
only gives guidance to the Commision in the task assigned to it by s. 32 p
(4)(o). The attack on r. 31 on the ground that the marking system evolved therein
is foreign to the purpose of s. 32 K (1)(iv), must fail.
The main attack of the petitioners however is
on Sch. C. This Schedule prescribes the average yield in maunds of various
crops for irrigated and unirrigated lands for various districts and tehsils of
the former States of Pepsu with which the Act is concerned. Rule 31 provides
that in giving 440 marks for yields the Commission shall apply the standred
yields given in Sch. C. The first contention of the petitioners in this behalf
is that the standards of yield have been fixed so high that they are
unattainable and this suggests that the intention of the framers of Sch. C. was
to make the yields so high that no farm could reach that standard with the
result that the intention behind s. 32 K (1)(iv) of exempting efficiently
managed farms should be defeated. In effect this contention is a charge of mala
fides against the State in framing Sch. C with the object of nullifying the
intention of the legislature contained in s. 32 K (1)(iv). Schedule C contains
13 crops, the yields of which have been prescribed under two heads, namely, (i)
irrigated and (ii) unirrigated. Learned counsel for the petitioners however,
concentrated on wheat to know how the standard prescribed is so high and
arbitrary as to be unattainable and we shall therefore consider the case of
wheat. It is however urged on behalf of the petitioners that practically the
same arguments will apply to the other crops we shall assume for present
purposes that what applies to wheat will also apply to other crops. The
standard fixed for wheat for practically the entire area of the former State of
Pepsu (except Kandaghat and Nalagarh, assessment circles Pahar) is thirty
months per acre for irrigated and 10 maunds for unirrigated lands. It is said
that this is an unattainable standard and therefore Soh. C has been framed with
the idea of breaking up the efficiently managed farms completely inspite of the
intention of the legislature otherwise, In this contention reliance has been
placed on certain produce figures for that area by either side.
Before however we consider those figures we
may refer to r. 31 (2) whice divides the frams into three categories according
to marking. We shall refer to this division later in another con441 nection;
but here it may be remarked that in order that an A class farm be deemed under
r. 31 (2) to be an efficiently managed farm that requires only 80 per ceutum of
the total marks, so that when we apply the yields fixed under Sch C we have to
scale them down to 80 per contum, for even if yields are at 80 per centum the
farm will be wholly entitled to exemption under r. 31 (2). Therefore, though
the yields fixed is 30 maunds for irrigated land and 10 maunds for unirrigated
land in theory, the practical effect of r. 31 (2) is that if a farm produces 24
maunds per acre of irrigated land and 8 maunds per acre of unirrigated land, it
will pass the test prescribed by a. 32K (1) (iv) we have therefore to compare
this yield with the other figures which have been brought to our notice by
either side, to decide whether the yield fixed in Sch.C has been deliberately
fixed so high as to be unattainable with the object of making the provision of
s. 32K (1) (iv) nugatory. The burden of proving this and so establishing the
mala fides of the State Government is on the petitioners.
Before we consider these figures we may
dispose of a short point as to the date on which valuation under s. 32 K will
have to be made. Section 32 K came into force on October 30, 1956 and it is
obvious that it is as on that date that the Commission will have to decide
whether a particular farm complies with the requirements of s. 32 K (1) (iv)
and should therefore be exempted from the operation of the ceiling provided in
s. 32Aq The statistics that have been provided to us however are of a later
period. We propose to consider them but it will always have to be kept in mind
that the decision of the Commission has to be on the facts as they stood on
October 30, 1956, so far as s. 32 K (1) (iv) is concerned.
442 The Board of Economic Inquiry Punjab
(India) publishes every year a bulletin on "Farm Accounts in the
Punjab" and this shows that the average yield in maunds for Punjab as a
whole in the year 1956-57 of wheat on irrigated land was 13.46 maunds per acre
and on unirrigated land 10-68. The same figures for 1957-58 were 14.57 and
10.99 and for 1958-59, 14.65 and 10.1. The same figures of Central Zone, Punjab
area were 16.29 and 3.67 for 1956-57; 12.27 and 5.53 for 195758 and 15.29 and
11.12 for 1958-59. Taking the matter district wise, the same figures were 15.95
and B for Ludhaina District for 1956-57 and 15.83 and 6.15 in 1958-59.
For Sangurur district which in the former
state of Pepsu the figures were 15.33 and 6.41 for the year 1958-59. These
figures seem to show that so far as the standard fixed in Sch. C for
unirrigated land is concerned it cannot be said to be necessarily unattainable,
for the standard is 10 maunds which when reduced to 80 per centum comes only to
eight maunds. As for the irrigated area, the standard is 30 maunds which when
reduced to 80 per centum comes to 24 maunds. There is no doubt that the
standard for the irrigated area is comparatively very much higher than the
averages in the bulletin mentioned above. In reply however the State reliefs on
certain yields which are certainly very much higher. Unfortunately, however, we
cannot attach much value to these yields for they were obtained in crop competitions
and these yields were for irrigated lands varying from over 32 maunds to over
66 maunds per acre. One of the competitors who showed an yield of over 44
maunds per acre has sworn an affidavit to show how these yields in crop
competition are arrived at. According to him, the area selected is the best one
acre of land which is specially prepared for the purpose. It is intensively 443
ploughed and abnormal doses of manure and fertlisers are put in it. The
irrigation also is twice the normal irrigation.
Further at the time of harvesting only one
Biswas of land is out. Out of this, only one bundle of crop out is threshed and
out of the yield obtained from this bundle, the yield of one acre is computed.
Obviously, the yield obtained in such a competition is not of such value for
purposes of comparison. But this however does not dispose of the matter. It
must be remembered that s. 32 K (1) (iv) postulates that only those farms would
be exempted whose break-up would lead to a fell in production. This clearly
implies that if the farm in question is only producing what the average yield
is in the whole of the Punjab its break-up would certainly not lead to a fall
in production: Therefore, in order that a farm may comply with the condition
that its break-up would result in a fall of production it is obvious that its
production must be higher than the average yield for the whole of the Punjab.
We have already pointed out that so far as unirrigated land is concerned the
fixing of the standard at 8 maunds per acre does not appear to be too high in
view of the figures to be found in the bulletin published by the Board of
Economic Inquiry Punjab (India), even though the figures relates to the period
after October 30, 1956. As to the irrigated area it seems that the average
production bars reached up to about 16 maunds per acre. The standard fixed in
Sch. C is 30 maunds which when reduced to 80 per centum comes to 24 maunds. On
the materials that have been provided by either side on this record, we would
hesitate to say that the standard of 24 maunds per acre for irrigated land of
the best quality would be too high.
Therefore, if the standard fixed in Soh. C is
to be taken to apply to the beat quality irrigated land and that standard is
reduced to 80 per centum in view of r. 31 (2), we 444 would hesitate to say
that Sch. C had fixed an un.
attainable standard and so was a mala fide
exercise of power to frame rules with th object of defeating the intention of
the legislature contained in a. 32 K (1) (iv). We have, already said that we
propose to take the figures supplied to us with reference to wheat only and we shall
assume, as the learned counsel for the petitioners ask us to assume, that what
is true about wheat would be equally true about other crops. We would therefore
hesitate in the case of other produce also to say that the yield are too high
and unattainable, if they are taken to be the yields from the best quality
irrigated land, in one case and the best quality unirrigated land in the other.
The contention therefore that the Schedule has been framed mala fide in the
sense mentioned above must fail, as the petitioners have failed to establish
that. But this in our opinion does not end the matter and we shall now proceed
further to deal with other aspects which have been urged before us.
Rule 31 (2) provides for the criterion for
deciding whether the farm is efficiently managed etc. and has created three
classes of farms, namely A, B and C, depending upon. the marks awarded, 80 per
centum or more in the case of class A, 60 per centum or more but below 80 per
centum for class B, and below 60 per centum for class C. It is further provided
that an A class farm shall be deemed to be efficiently managed while 50 per
centum of the area under a farm of class B shall, subject to the choice of the
landowner be deemed to be efficiently managed but farm of class C shall not be
considered efficiently managed. Now the contention on behalf of the petitioners
is that this division into three classes is beyond the purview of s. 32 K and
is therefore ultra vires. Section 32 K, as we have already indicated, lays down
445 that provisions of s. 32A shall not apply to efficiently managed farms etc.
so that when the Commission considers the question whether a particular farm is
efficiently managed under s. 32 K it has only to decide one of two things:
namely, whether the farm is efficiently
managed etc. or is not efficiently managed. If it is efficiently managed, the
provisions of s. 32 A shall not apply to the entire farm; if on the other hand,
it is not efficiently managed, the provisions of s. 32 A will apply to the
entire farm. There is no scope in s. 32 K for the creation of three classes of
farms, as has been done by el. (2) of r. 31. In other words there is no scope
for the creation of class B farms in the rule on the terms of s. 32 K. The rule
therefore insofar as it creates an intermediate class of farms, half the area
of which is deemed to be efficiently managed is clearly beyond the provisions
of s. 32 K (1) (iv). The creation of class B farms of r. 31 (2) being beyond
the provisions of a. 32.K must beheld to be ultra vires that sections. The
question then arises whether in view of the creation of class B farms by r. 31
the whole of that rule-must go. We are of opinion that the creation of class B
farms is so integrated with the whole of r. 31 that it would not be possible to
excise class B farms only from that rule and leave the rest of the unaffected.
It is impossible to say what the form of r. 31 would have been if the
rulemaking authority thought it could not provide for class B farms.
We are therefore of opinion that the whole of
r. 31 along with Schedules B and C must fall, as soon as it is held that the
creation of class B farms under the rule is beyond the rulemaking power. This
is one ground on which r. 31 must be struck down as ultra vires of the
provisions of the Act, particularly is. 32 K.
Then comes r. 31 (3) which provides that the
classification made under r. 31 (2) shall be 446 revised by Government annually
in the months of January and February. The attack on this provision its
two-fold. In the first place, it is contended that r. 31 (3) leaves the
revision of classification of farms entirely to Government at any rate there is
nothing in r. 31 to suggest that the Government is bound to consult the
Commission before revising the classification of farms. Secondly, it is urged
that there is nothing in a. 32 K or any other provisions of the Act to suggest
that once a farm is taken out of the provisions of s. 32 A by the application
of a. 32 K that exemption is open to revision thereafter. We are of opinion that
there is force in the second contention, though not in the first. Section 32 p
(4) and (5) lay down that the State Government will be advised by the
Commission with regard to exemption under s. 32K and the advice of the
Commission would-be binding on the State Government. Rule 31 (3) as it stands
does not however provide for advice by the Commission there under. It is also
not clear whether the Commission under s. 32 is a permanent Commission. It is
however urged on behalf of the State that r. 31 (3) must be read subject to the
Act and therefore if the Act requires that the Commission must be consulted in
the matter of exemption the Government will be bound to consult the Commission
even when it proceeds to revise the classification under r. 31 (3). We accept
this submission on behalf of the State and hold that though r. 31 (3) does not
specifically provide for consultation with the Commission at the time of
revision that rule must be read subject to s. 32 p (4) and even at the time of
revision the Government is bound to take the advice of the Commission and is
bound to act accordingly.
The other contention however appears to have
force. Section 32 K lays down that the provisions of& 32 A will not apply
to efficiently 447 managed farms etc. Once therefore it is hold that a farm
comes within s. 32 K (1) (iv) the provisions of a. 32 A relating to ceiling
will not apply to it. There is nothing in Chap. IV-A to, suggest. that once an
efficiently managed farm is taken out of the provisions of s. 32 A on the
advice of the Commission it can be subjected again to those provisions. Nor
have we found any. thing in the Act which gives power to the State Government
to subject a farm to which a. 32 A does not apply in view of s. 32 K to the
provision of a. 32 A later. We realise that it may be possible for a farm which
was efficiently managed when the Act came into force in 1956 to be so
mismanaged later that it no longer remains an efficiently managed farm within
the meaning of s. 32 K (1) (iv) and it does seem reasonable in those
circumstances that the provisions of s. 32 A should apply later to such a
mismanaged farm. But that in our opinion has not been provided in the Act
itself. Once the farm as it was on October 30, 1956 gets the benefit of a. 32 K
(1) (iv) such a provision in our opinion cannot be made by a rule, for in that
case the rule would be going beyond the purview of the Act and would be ultra
vires. That is another reason why r. 31 (3) must be struck down as ultra vires
of the Act.
Besides the on attack on Sch. C based on
fixing unattainable standars mala fide, the Schedule is further attacked on the
ground that it goes beyond the intention behind s. 32 K (1) (iv) inasmuch as it
provides for a mathematical formula irrespective of various other
considerations which have a great play in the matter of yield. We have already
pointed out that Sch. C only provides for two classes of lands, namely
irrigated and unirrigated. Further the proviso to r. 31. (4) (b) lays down that
in allotting marks for yields, the commission shall 448 apply the standard
yields given in Sch. C. This means that if the yield of a particular farm of
irrigated land is, for example, 15 maunds of wheat per acre, the Commission
would be bound under: the proviso to give 80 per centum of the marks provided
for yields in Sch. B i.e. the Commission will have to award 250 out of 500
marks to a such a farm.
Now if land whether irrigated or unirrigated
was of one quality and if there were no other, factors to be taken into
consideration in judging the yield in a particular area the application of a
mathematical formula would have been justified. But there is no doubt that
irrigated and unirrigated' lands are not all of the same quality and that
quality of land does affect production. There are other factors also to which
we shall later refer which have to be taken into account in considering the
yield; but those factors have all been ignored in Sch.C. Turning to the quality
of land, we find from Sch.A to the Rules, which has been framed with respect to
r. 5 for conversion of ordinary acres into standard acres, that there are eight
qualities of land in the State. of which five are under the head
"irrigated", (namely, Chahi, Chahi-Nehri, Nehri perennial, Nehri
non-perennial and Abi) and three under the head "unirrigated"
(namely, Sailabi,Barani and Bhud). The higest quality. is Nehri perennial and
it is marked as 100 meaning thereby that one ordinary acre of Nehri perennial
is equal to one standard acre. The lowest quality of irrigated land is Nehri
non-perennial which is marked as 75, meaning thereby that four ordinary! acres
of Nehri non-perennial are equal to three standard acres. This means that the
yield of the, lowest quality of irrigated land would be 25 per centum less than
the best irrigated land. Now if the standards fixed in Soh. C are with
reference to the beat land, the best irrigated land is expected to produce 30
maunds minus 20 per centum i.e. 24 maunds.
449 The lowest quality of irrigated land will
be expected to produce 22-1/2 maunds (i.e. 75 per centum of the best land)
minus 20 per centum, equal to 18 maunds. This shows that unless some account is
taken of the quality of land, Sch.C is bound to work harshly on those farms
where the quality of the irrigated land is of the lowest type. It may be said,
however, that Sch. C is based on averages. Even if that is so, there is bound
to be inequality where all the irrigated land of the farm is of the lowest
quality. The same applies to unirrigated land. The beat unirrigated land is
Sailabi, which has 62 per centum yield as compared to the Nehri perennial,
meaning thereby that roughly 10 acres of Sailabi land are equal to six standard
acres. Barani land is rated at 50 per centum of the best and thus two acres of
Barani land will be equal to one standard acre. Bhud is the worst and rated at
25 per centum and four acres of bhud are equal to one standard acre. Thus if
the valuation given in Sch.
A. is accepted, bhud is only half as
productive as barani and two-fifths as productive as sailabi. Therefore when Sch.C
fixes one standard for unirrigated land without regard to quality, it is bound
to work inequality between farms and farms. It has been urged on behalf of the
state that the Commission would be entitled to take into account these
differences in quality. There is however nothing in r. 31 which permits the
Commission to take into account this difference in the quality of land. The
proviso to r. 31 (1) (b) definitely lays bown that in allotting marks the
Commission shall apply the standard yield given in Sch. C, so that the
Commission is bound to apply those yields in every case and there is nothing in
r. 31 which permits the Commission to take into account the difference in
quality of land. Now when s. 32 k (1)(iv) read with a. 32p provided for the
appointment of a Commission to advise on the question of exemption under 450 a.
32 k (2) (iv), the intention of the legislature obviously was that the
Commission will take into account all factors which should be properly taken
into account in giving its advice. Quality of land is one such factor which
should be properly taken into account by the Commission but as the proviso to
r.31(4) stands, the Commission is bound to apply Sch. C on a mathematical basis
without consideration of other factors. We are therefore of opinion that the
proviso to r. 31 (4) (b) inasmuch as it obliges the Commission to apply Sch. C
on a mathematical basis goes beyond the provisions of a. 32 k. It was certainly
suggested in argument before us that it would be open to the Commission to take
into account the difference in the quality of land. But there is nothing in the
reply, of the State to suggest this and we cannot accept what is suggested to
us in argument in the face of the proviso to r. 31 (4) (b). The proviso
therefore must be struck down as going beyond the rule making power inasmuch as
it is ultra vires the provisions of s. 32 K (1) (iv).
There are other factors which govern the
yield of land and these also have not been taken into account in r. 31. These
factors may be grouped under the head "natural calamities", as for
example, posts, locusts, excessive rain, floods and drought. There is nothing
in r. 31 which gives a discretion to the Commission when applying the proviso
to r. 31 (4) (b) to to take into account these factors, Obviously, the
intention behind the provision in s.32 K(1) (iv) was that in evaluating whether
a farm was efficiently managed, the Commission will take all these factors
which properly require consideration in the matter of yield into account, It
was however suggests that the Commission was entitled to take, these factors
into account when judging the matter of yields; but we find nothing in the
reply of the 451 'State Government to this effect and in any case if the
proviso to r. 31 (4) (b) is interpreted as it stands it may not be possible for
the Commission to take these factors into account when advising the State
Government under s. 32 K (1) (iv). It is not even clear which year before
October 30, 1956, the Commission will take into account in advising the
Government, whether a particular farm is entitled to the benefit of a. 32 K (1)
(iv). If, for example, the base year is one immediately preceding October 30,
1956, and if in that year there was some natural calamity, the Commission
cannot take that into account and must apply Sch. C as the proviso to r. 31 4)
(b) seems to intend. The intention of the legislature therefore behind s. 32 K
(1) (iv) would be subverted because of this proviso. That is another reason why
this proviso should be struck down as going beyond the intention of the
legislature in 'B. 32 K (1) (iv).
Lastly, there is another factor which is also
very relevant in the matter of yields, namely, the rotation of crops which
requires all good farmers to leave some part of their lands follow by turns for
a whole year in order that the fertility of the soil can be preserved. Again
there is nothing in the proviso which allows the Commission to take into
account this factor and make calculations only on the actual area of a farm
which is cultivated and leave out of account such reasonable area as may not be
cultivated in order to preserve the fertility or land on the principle of
rotation of crops. As the proviso stands, the Commission is to apply Sch. C
over the entire area of the farm with. out taking into account the factor of
rotation of crops which necessitates that some reasonable portion of the land
must be left fallow for the whole year in order to preserve the fertility of
the soil. Here again it is urged on behalf of the State in argument that the
Commission can do so. But 452 again that is not to be found in the reply of the
State and as the proviso stands it obliges the Commission to apply Sch. C to
the entire area of a farm in order to judge whether it is an efficiently
managed farm. This is therefore another reason why the proviso goes beyond the
intention of the legislature contained in s. 42 K (1) (iv).
The proviso therefore to r. 31 (4) (b) must
be struck down as beyond the rule making power of the State Government. As soon
as the proviso is struck down it would be impossible to work r. 31 properly;
therefore, the entire r. 31 must fall on this ground also.
We therefore allow the petitions and strike
down r. 31 as ultra vires the Act and order that r. 31 (along with Schedules B and
C) shall not be given effect to by the State of Punjab and shall not be taken
into account by the Commission in giving advice to the State Government under
s.
32 P (4). The petitioners will get their
costs from the State one set of hearing fee.
Petitions allowed.
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