Inder Singh & ANR Vs. State of
Punjab & Ors [1967] INSC 99 (10 April 1967)
10/04/1967 SHELAT, J.M.
SHELAT, J.M.
RAO, K. SUBBA (CJ) HIDAYATULLAH, M.
BACHAWAT, R.S.
VAIDYIALINGAM, C.A.
CITATION: 1967 AIR 1776 1967 SCR (3) 603
CITATOR INFO :
RF 1972 SC2097 (18)
ACT:
Pepsu Tenancy and Agricultural Lands Act,
1955 (Pepsu 13 of 1955) s. 32-FF-Limit of holding by Hindu undivided family, if
defeats right of its member-If infringes Art. 19 and protected by Art. 31-A.
Constitution of India, Arts. 19 and 31-A-Validity
of s. 32FF of Pepsu Tenancy and Agricultural Lands Act
HEADNOTE:
While ascertaining the surplus land under the
Pepsu Tenancy and Agricultural Lands Act, the excess over 30 acres owned by the
appellants, a Hindu undivided family was declared surplus. In ascertaining the
surplus, the authorities ignored the transfer of land by the Karta of the
family to an outsider by a registered deed. The appellants unsuccessfully filed
writ petition. In appeal to this Court, the appellants contended that s. 32-KK
deprives a coparcener in a Hindu undivided family of his rights of property. in
that it takes away the rights of the descendants of the land-owner to claim for
themselves the permissible area and vest them in the head of the family alone
so that there is not only an infringement of the right to hold property under
Art. 19(1) (f) but also discrimination in favour of the head of the family
infringing thereby Art. 14 and that the section cannot be said to be
legislation whose object is agrarian reform and, therefore, is not protected by
Art. 31-A.
HELD:The appeal must fail.
In Pritam Singh v. State of Punjab [(1967) 2
S.C.R. 536] this Court upheld the validity of s. 32-FF and held that that
section was protected by Art. 31-A against any challenge under Art. 19. If a
transfer or a disposition of land can validly be ignored under s. 32-FF for the
purpose of ascertaining surplus land and acquisition of such surplus land
bit-he State and that section is protected by Art. 31A, it is difficult to say
why s. 32-KK which, equates a Hindu undivided family with an individual
landowner for the limited purpose of the Act without affecting the other rights
of its members is not equally protected by that Article. The object of enacting
s. 32-KK was to prevent the landowner and his descendants by reason of their
constituting a Hindu undivided family from each of them claiming in his own
right the permissible area from the joint holding of the family and thus retain
for themselves in the aggregate area larger than 30 standard acres and
preventing thereby distribution of surplus area. [608 F-H] The contention that
the section is not one relating to agrarian reform is hardly sustainable in
view of the objects of the Act in general and of s. 32-KK in particular.
Similarly, the contention that the section
has the affect of defeating the rights of a member of a Hindu undivided family
from the family property also cannot be sustained because his rights in the
permissible area retained by the landowner and his right to compensation in
respect of the surplus area are not touched by the section. Nor is it possible
to say that the section results in the transfer of rights of the descendants of
a landowner in the permissible or surplus area in favour of such landowner. The
section does not affect any change in the rights of 604 the descendants as
members of a Hindu undivided family or the relationship of the family inter se
except to the extent of depriving the descendants of their right to claim the
ceiling area for each of them. [609 B-E] The decision of Ranjit Singh v. The
State of Punjab ([1965] 1 S.C.R. 82) points out that the fixing of ceiling on
lands and provisions relating to it would form part of and constitute agrarian
reform and, therefore, such provisions would have the protection of Art. 31-A.
[607 H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 92 of 1966., Appeal from the order dated May 30, 1963 of the Punjab High
Court in Letters Patent Appeal No. 148 of 1963.
R. V. S. Mani and M. L. Agarwal, for the
appellants.
Dipak Dutt Chaudhuri and R. N. Sachthey, for
the respondents.
S. K. Mehta, and K. L. Mehta, for the
interveners.
The Judgment of the Court was delivered by
Shelat, J. The appellants are members of a Hindu undivided family of which the
first appellant is the Karta. Prior to August 21, 1956, the family owned 64.35
standard acres of land in village Kurali, District Patiala. The land stood in
the revenue records in the name of the first appellant. On December 23, 1957,
the first appellant transferred 26 standard acres to one Babu Singh by a
registered deed.
According to them, they had Planted an
orchard in 10 acres of land. Their contention was that the said 26 standard
acres and the said 10 standard acres could not be taken into account while
ascertaining surplus land under the Pepsu Tenancy and Agricultural Lands Act,
XIII of 1955. Both these claims were rejected by the authorities. By his order
dated January 20, 1961', respondent 'No. 3 declared 34.35 standard acres out of
the said 64.35 standard acres as 'Surplus land. The appeal filed by the
appellants against the said order was rejected. They then filed a revision
application before respondent No. 1. While that was pending they filed a writ
petition in the High Court. During the pendency of that writ petition. the
Punjab Legislature passed the Amendment Act, XVI of 1962 inserting S. 32-KK in
the principal Act. The learned Single Judge,. who heard the writ petition, held
(1) that the finding that the appellants had not planted the said orchard
within the statutory period was one of fact and could not be challenged in the
writ petition and (2) that the said transfer of 26 standard acres was hit by S.
32-FF and therefore was rightly ignored while ascertaining the surplus land.
The main contention urged before the High Court, however, was that each of the
three appellants who constituted the said family was entitled to ,retain 30
standard acres, that as the total holding was only 64.35 605 standard acres,
there was no surplus land liable to be acquired under the Act and, therefore,
the order declaring 34.35 Standard acres, as surplus land was illegal. The High
Court following its earlier decision in Bhagat v. State of Punjab(1)
"missed the writ petition. A Letters Patent Appeal against that judgment
was dismissed in limine. The present appeal by certificate is directed against
the dismissal of the said writ petition.
Mr. Mani's contentions were: (1) that under
Hindu Law every coparcener in a Hindu undivided family acquires right in the
property of such coparcenery on birth and is entitled to a right of joint
possession and enjoyment of its entire property, that S. 32KK deprives such a
coparcener of his rights of property in that that it takes away the rights of
the descendants of the landowner to claim for themselves the permissible area
and vest them in the head of the family alone so that there is not only an
infringement of the right to hold property under Art. 19 (1 ) (f ) but also
discrimination in favour of the head of the family infringing thereby Art. 14;
(2) that the effect of s. 32-KK is that where an undivided family is possessed
of land, instead of each of the descendants getting a ceiling area of 30
standard acres, the head of the family alone gets 30 standard acres and
therefore the section is violative of Art. 31; (3) that the section, being
applicable only to Hindu undivided families infringes Art. 15(1) inasmuch as it
discriminates by reason only of religion such families as against other
undivided families in Punjab amongst communities other than Hindus and (4) that
the section cannot be said to be legislation whose object is agrarian reform
and, therefore, is not protected by Art. 31 A.
Section 32-KK, the validity of which is
impeached in this appeal, reads as follows :"Notwithstanding anything
contained in this Act or in any other law for the time being in force :(a)
where, immediately before the commencement of this Act, a landowner and his
descendants constitute a Hindu undivided family, the land owned by such family
shall, for the purposes of this Act, be deemed to be the land of that landowner
and no descendant shall, as member of such family, be entitled to claim that in
respect of his share of such land he is a landowner in his own right".
The section first lays down a fiction and
then its result.
The fiction is that where a landowner and his
descendants form a Hindu undivided family, the land owned by such a family
shall be, deemed to be. the land of that landowner.
The fiction so en(1) I.L.R. (1963) 16 (1)
Punjab 5O.
6O6 -acted is limited only for the purposes
of the Act. The result of the fiction again for the purposes of the Act is that
no descendant shall, as a member of such family, be entitled to claim that in
respect of his share of such land he is a landowner in his own right. There is
no doubt that the section has a direct adverse ,effect on the rights of the
descendants of a landowner. It treats such a family as one unit equating the
landowner and his descendants with an individual landowner depriving by such
equation the descendant of the right to hold a ceiling area for himself.
Prima facie, such a provision would infringe
Art. 19(1) (f) and Art. 31 and would be hit by Art. 13. Article 31-A, however,
provides that notwithstanding anything contained in Art. 13, no law providing
for the acquisition by the State of any ,estate or of any rights therein or 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 Arts. 14, 19 or 31. If, therefore, S. 32-KK falls within
the scope of Art. 31-A, it is obviously protected there under and the validity
of the section is placed beyond any ,challenge on the ground of its infringing
any of the rights under Arts. 14, 19 or 31.
In K. K. Kochuni v. The State of Madras(1),
this Court laid ,down that Art. 31-A properly construed envisages agrarian
reform and provides for the acquisition, extinguishment or modification of
proprietary and various other kinds of subordinate rights in a tenure called
the 'estate' solely for that purpose and must be limited to it. The Court held
that the Act impugned there did not ,contemplate any agrarian reform or seek to
regulate the rights inter se between the landlords and tenants or modify or
extinguish any of the rights appertaining to janmam right leaving all the
characteristics intact and, therefore, did not come within the purview of Art.
31-A. In Ranjit Singh v. The State Punjab (2), this Court considered the scope
of that decision and held that the 'Word 'estate' in Art. 31 -A should be given
a liberal meaning and that the changes proposed by the Punjab Consolidation
Acts passed since 1948 and onwards were included in the general scheme of
planning of rural areas and the productive utilisation of vacant and waste
lands, that if agrarian reforms were to succeed, mere distribution of land to
the landless was not enough, that there should be a proper planning of rural
economy and conditions and that a scheme which makes villages self sufficient
cannot but be regarded as part of larger reforms which consolidation ,of
holdings, fixing of ceilings on lands, distribution of surplus lands and
utilising of vacant and waste lands contemplate. It is not necessary to refer
to other decided cases as this decision clearly points out that the fixing of
ceiling on lands and provisions (1) [1960] 3 S.C.R. 887.
(2) [1965]1 S.C.R. 82.
607 relating to it would form part of and
constitute agrarian reform and, therefore, such provisions would have the
protection of Art. 3 1 -A.
A brief outline of the provisions of the Act
will show the objects and the policy the legislature had in mind in passing the
Act and while amending it from time to time.
The Act declares that it was passed to amend
and consolidate law relating to tenancy and agricultural lands and to provide
for certain measures of land reforms. Section 3 defines " permissible
limit" as meaning 30 standard acres of land. Section 5 entitles ,very
landowner owning land exceeding the permissible limit to select for personal
cultivation from the land held by him any parcel or parcels of land not
exceeding in aggregate the permissible area.
Chapter III provides for the rights of
tenants and section 7 therein lays down that no tenancy shall be terminated
except in accordance with the provisions of the Act or except on any of the
grounds therein set out. Section 7-A lays down additional grounds for
termination of tenancy in cases such as where the land comprising the tenancy
has been reserved by the landowner for his personal cultivation or where the
landowner owns 30 standard acres or less of land and the land falls within the
permissible limit. Section 9 provides the maximum amount of rent payable by a
tenant. Chapter IV deals with acquisition or proprietary rights by a tenant on
such tenant paying compensation determined in accordance with the principles
set out in section 26. Chapter IV-A, which was added by Act 15 of 1956, deals
with ceiling on lands and acquisition and disposal of surplus land. Section
32-A provides that no person shall be entitled to own or hold as landowner or
tenant land exceeding the permissible limit. Section 32-B obliges a person
owning or holding as landowner or tenant land which exceeds the permissible
limit to furnish to the Collector a return giving particulars of all his land
and stating therein his selection of land not exceeding the permissible limit
which he desires to retain and of lands in respect of which he claims exemption
from the ceiling. Section 32-D directs the Collector to prepare a draft
statement on the basis of the information given in the said returns showing the
total area of land owned or held by such person and the land selected by him by
way of permissible limit the exemption claimed by him and the surplus area.
Section 32-E provides that in the case of surplus area of a landowner or a
tenant which is not included within the permissible limit such area shall on
the date on which possession thereof is taken by the State Government, be
deemed to have been acquired by the State Government for a public purpose.
Section 32-F authorises the Collector to direct the landowner or the tenant in
possession of the surplus area to deliver possession thereof within the
prescribed time. Section 32-FF provides that no transfer or 608 other
disposition of land made after August 21, 1956 shall affect the right of the
State Government to the surplus area to which it would be entitled to but for
such transfer or disposition. Section 32-G lays down principles on which
compensation in respect of surplus area is to be determined.
Section 23-J deals with disposal of such
surplus area.
Section 32-KK already recited above was
inserted in the Act by Punjab Act XVI of 1962.
It is clear from these provisions that the
objects of the Act are : (a) to secure the rights of tenants, (b) to provide
for acquisition of proprietary rights in the land to the tenant, (c) to provide
for permissible limit of 30 standard acres, (d) to acquire surplus areas and
distribute them amongst certain classes of persons including landless persons,
and (e) to provide for compensation at prescribed rates payable by tenants and
by Government on its acquiring surplus land. The principle laid down by the,
Act is that no person, whether a landowner or tenant, should hold land more
than the permissible area so that the surplus land can be distributed amongst
the more needy sections of society.
In following this principle the Act lays down
two corollaries, namely, (1) not to recognise any transfer or disposition made
by a landowner after a certain date as otherwise the scheme of distribution of
surplus land would be frustrated, and (ii) to equates an individual landowner
and a Hindu undivided family consisting of a landowner and his descendants so
that both the units are entitled to hold only the permissible area of 30
standard acres. In our view, it cannot be gainsaid that section 32-KK deals
with an estate within the meaning of Art. 31-A and is concerned with agrarian
reform. The decision in Kochuni's case(1) cannot, therefore, avail the
appellants.
In Pritam Singh v. The State of Punjab (2) ,
this Court upheld the validity of s., 32-FF and held that that section was
protected by Art. 31-A against any challenge under Art.
19. If a transfer or a disposition of land
can validly be ignored under s. 32FF for the purpose of ascertaining surplus
land and acquisition of such surplus land by the State and that section is
protected by Art. 31-A, it is difficult to say why s. 32-KK which, as
aforesaid, equates a Hindu undivided family with an individual landowner for
the limited purpose of the Act without affecting the other rights of its
members is not equally protected by that Article. The object of enacting s.
32-KK was to prevent the landowner and his descendants by reason of their constituting
a Hindu undivided family from each of them claiming in his own right the
permissible area from the joint holding of the family and thus retain for
themselves in the aggregate area larger than 30 standard' acres and preventing
thereby distribution of surplus area. As to (1) [1960] 3 S.C.R. 887.
(2) [1967] 2 S.C.R. 536.
609 the pros and cons of such a provision
much can be said on either side. The appellants could have perhaps contended
that such a provision amounted to an unreasonable restriction. But such a
contention is debarred by Art. 31 A an d a challenge to the validity of that
Article is no longer possible in view of the recent decision in 1. C.
Golak Nath v. The State of Punjab(1).
The contention that the section is not one
relating to agrarian reform is hardly sustainable in view of the abovementioned
objects of the Act in general and of S. 32-KK in particular. Similarly, the
contention that the section has the affect of defeating the rights of a member
of a Hindu undivided family from the family property also cannot be sustained
because his rights in the permissible area retained by the landowner and his
right to compensation in respect of the surplus area are not touched by the
section.
Nor is it possible to say that 'the section
results in the transfer of rights of the descendants of a landowner in the
permissible or surplus area in favour of such landowner.
The section does not effect any change in the
rights of the descendants as members of a Hindu undivided family or the
relationship of the family inter se except to the extent of depriving the
descendants of their right to claim the ceiling area for each of them. The
contention as to the validity of S. 32-KK, therefore, must fail.
The next contention was that the section
infringes Art. 15 inasmuch as by limiting it only to Hindu undivided families
it discriminates against descendants forming such families on the ground of
religion only. It was argued that the customary law in Punjab recognises joint
and undivided families amongst non-Hindu persons also and since the section
affects only the Hindu undivided families, it violates Art. 15. In support of
this contention passages from Rattigan's Digest of Customary Law, 14th Ed. pp.
35 to 36 were relied on to show that the institution of undivided family exists
amongst certain classes of Muslims in certain districts of Punjab. Support was
also sought from the decisions in Banarsi Das v. Wealth Tax Officer.(2) and
Mammad Kevi v. Wealth Tax Officer (3). The former was concerned with the question
whether a Hindu undivided family is embraced within the term 'individuals' in
Entry 56 of List 1 of the Seventh Schedule to the Constitution for purposes of
the Wealth Tax Act, 1957. The latter decision does not touch the question under
Art. 15. Neither of the two decisions, therefore, can assist. On the other
hand, in the case of Bhagat v. State of Punjab(4) the High Court of Punjab has
held that section 32-KK does not create any discrimination on the ground of
religion. In 'the present case, it is not possible to give (1) [1967] 2 S.C.R.
762.
(3) [1966] 50 I.T.R. 737.
L7Sup.Cl/67-9 (2) [1965] 56 I.T.R. 224.
(4) I.L.R. [1963] 16 (1) Punj. 500.
610 any concluding answer to the contention
raised by Mr. Mani firstly because such a point was not raised in the writ
petition and secondly because the appellants have not placed before us
sufficient data to enable us to go into the question. We, therefore, refrain
from examining that contention.
The appeal fails and is dismissed with costs.
Y.P. Appeal dismissed.
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