Seth Nand Lal & ANR Vs. State of
Haryana & Ors [1980] INSC 125 (9 May 1980)
TULZAPURKAR, V.D.
TULZAPURKAR, V.D.
CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N.
KRISHNAIYER, V.R.
SEN, A.P. (J)
CITATION: 1980 AIR 2097 1980 SCR (3)1181
CITATOR INFO :
F 1983 SC1073 (19) R 1989 SC1737 (5) RF 1992
SC2279 (35)
ACT:
Haryana Ceiling on Land Holdings Act, '1972
(Haryana Act 26 of 1972)-Constitutional validity of-Artificial definition of
family unit-Sections 4(1), 4(3), 7, 8, 9, 11(1) and (2), whether violate
Article 14 of the Constitution.
HEADNOTE:
The Haryana Ceiling on Land Holdings Act,
1972 (Act 26 of 1972) received the assent of the President on 22-12-1972 and
was published in the official Gazette on 23-12-72.
Section 2 contained and even now contains the
requisite declaration that it was enacted for giving effect to the policy of
the State towards securing the principles specified in clauses (b) and (c) of
Art. 39 of the Constitution. The Act was included in the Ninth Schedule to the
Constitution on 7-9-1974 and, thereby, it came under the protective umbrella of
Art. 31B of the Constitution.
In Saroj Kumari's case A.I.R. 1975 Punjab
& Haryana 353 relying on an earlier decision of that Court in such Singh's
case A.I.R. 1974 P & 162, the Punjab & Haryana High Court, being
unaware of the inclusion of Act 26 of 1972 in the Ninth Schedule struck down
certain provisions of the Act on the ground that these provisions violated the
rights guaranteed by Part m of the constitution. The Full Bench decision in
Sucha Singh's case A.I.R. 1974 Punjab & Haryana 162 was reversed by the
Supreme Court in Sucha Singh's case A.I.R. 1977 S.C. 915, taking the view that
the provisions of Punjab Land Reforms Act are saved by both Articles 31A and
31B of the Constitution.
However, after the decision in Saroj Kumari's
case, Act 26 of 1972 and the Rule framed under s. 31, thereof were amended
extensively; the Act was first amended by Haryana Act 17 of 1976 which Amending
Act was also put in the Ninth Schedule; the Act was further amended by Haryana
Acts Nos.
40 and 47 of 1976, 14 of 1977 and 18 of 1978,
but the last four Amending Acts were not put in the Ninth Schedule.
After the Principal Act was amended as above,
several writ petitions were Sled in the Punjab & Haryana High Court challenging
the vires of some of the provisions of the Act.
The Division Bench dismissed all the writ
petitions and upheld the validity of all the provisions except 6. 20A which
barred the appearance of any legal practitioner before any officer of authority
other than the Financial Commissioner in proceedings under the Act. The Court
took the view that such a provision was repugnant to s. 14 of the Indian Bar
Councils Act (which had continued in force in view of s. 30 of the Advocates
Act 1961 not having come into force), and therefore ultra Vires and invalid.
In their appeals by special leave the
appellants have challenged some of the provisions of the Act on the grounds
substantially different from those that were urged before the High Court.
Besides their appeals, a large number of writ 1182 petitions and also special
leave petitions have been filed raising almost identical grounds of challenge
to the provisions of the Principal Act (26 of 1972) as amended from time to
time.
Dismissing the appeals and the petitions, the
Court
HELD: 1. The amendments effected in the
Principal Act by Amending Act 17 of 1976 will receive the protective umbrella
of Art. 31B but not the amendments effected by Acts Nos. 40 & 47 of 1976,
14 of 1977 and 18 of 1978. Moreover, though the Principal Act as amended by Act
17 of 1976, will be under the protective umbrella of Art. 31B, the Haryana
Ceiling on Land Holdings Rules, 1973 as originally framed or even after amendments,
being subordinate legislation and not specified in the Ninth Schedule may not
receive such protection.
Prag Ice and Oil Mills & Anr. v. Union of
India, [1978] 3 S.C.R. 293, applied.
2. The Principal Act (Act 26 of 1972)
together with all the amendments made therein which essentially is meant for
imposition of ceiling on agricultural holdings and acquisition and distribution
of the surplus area to landless and weaker sections of the society is in
substance and reality an enactment dealing with agrarian reform and squarely
falls within Art. 31A of the Constitution and as such will enjoy the immunity
from the attack on the ground of inconsistency with or abridgments of any of
the Fundamental Rights guaranteed by Arts. 14, 19 and 31. [1192 H, 1193 A-C]
Sankari Prasad Singh Deo v. Union of India etc. etc.
[1952] 3 S.C.R. 89 Keshavananda Bharati v.
State of Kerala, [1973] Suppl. S.C.R. 1, State of Bihar v. Kameshwar Singh,
[1952] 3 S.C.R. 252 followed.
3. A reading of ss. 4(1), 4(3), 7, 8, 9 and
11 (1) and (2) makes two or three aspects very clear, namely, (i) there is no
doubt that for the purpose of the Act the concept of family has been defined in
an artificial manner as meaning husband, wife and their minor children and
exclusive of major sons and unmarried daughters, (ii) Under s. 4(1) "the
primary unit of family" is confined to five members, namely, husband, wife
and their minor children up to three with reference to which permissible area
has been prescribed, but under s. 4(2) the permissible area is said to increase
by one-fifth of the permissible area of the primary unit for each additional
member of the family, such as the fourth or fifth minor child etc. but subject
to the maximum limit prescribed in the proviso, namely. the permissible area shall
not exceed twice the permissible area of the primary unit of the family and
(iii) in respect of each unit, namely, each adult son living with his parents
the permissible area will be further increased up to the permissible area of
the primary unit of a family under s.4(3), provided that where the adult son
also owns any land the same shall be taken into account for calculating the
permissible area. In other words, in cases where the primary units of family
owns or holds land [say 54 acres under cl.
(l)(c) of s. 41 and an adult son living with
the family also owns or holds similar land of his own (say acre.,) then the
permissible area for the family will be 108 acres after clubbing the two
holdings under s. 4(3) and there will be no question of any augmentation of
area for the family but in cases where the separate unit (adult son) owns or
holds no land of his own but is living with the family the primary unit's
holding gets augmented up to two units, that is to say, the family will be
entitle to retain 108 acres and the balance will be surplus simply because the
1183 adult son is living with the family; but no such augmentation will occur
if h unmarried daughter or daughters are living with the family or if the adult
son is living away separately from the family. [1195 C-H, 1196 A]
4. It is true that provisions pertaining to
artificial definition of family and the adoption of double standard for
fixation of ceiling contained in the instant Act are similar to those which
obtained in the Kerala Agrarian Relations Act, 1961 and the Madras Land Reforms
(Fixation of Ceiling on land) Act, 1961, but even so, there are two
distinguishing features which would make the ratio R of these two decisions
dealing with those Acts reported in 1962 Sup. 2 SCR 829 and 1964 (7) SCR 82
inapplicable to the instant case. In the first place, in both these decisions
it was an admitted position that the concerned enactments were not governed by
or protected under Art. 31A of the Constitution and it was in the absence of
such protection that the attack to the material provisions of the enactments on
the ground of violation of Art. 14 was entertained by this Court. At page 833
of the Report in the first case, there is a categorical statement made to the
effect that the concerned Act, so far as it affected the petitioners therein,
was not protected under Art. 31A and it was open to assail it as violative of
the rights conferred on them by Articles 14, 19 and 31 of the Constitution.
Similarly at page 84 of the Report in the second case, there is a Statement to
the similar effect that the Madras Act was not protected under Art. 31A of the
Constitution and it was in that background that the Court considered the attack
based on Art. 14 on the two main provisions of the Act relating to ceiling area
under s. 5 and compensation under s. 50 read with Schedule III of the Act. In
the instant case it cannot be disputed that Principal Act (26 of 1972) as
amended subsequently is a piece of agrarian reform legislation squarely falling
with Art. 31A of the Constitution and, therefore, the Act, and the concerned
provisions would be immune from attack based on Articles 14, 19 and 31 of the
Constitution. Secondly, in both these decisions, no material by way of
justification was put before the Court on behalf of the State for the adoption
of the double standard in the matter of fixing the ceiling read with the
artificial definition of the family which resulted in discriminatory results
and this has been specifically mentioned by the Court in both the judgments, while
in the instant case on behalf of the State of Haryana ample material has been
produced before the Court justifying the adoption of the artificial definition
of family and the double standard for fixing the ceiling negativing the
violation of Art. 14.
[1197 C-H, 1198 A] The materials produced
before the Court make it clear that the State had applied its mind seriously to
these questions: whether family should be adopted as a unit instead of an
individual for applying ceiling on land holdings, what should be the size of
the family, why artificial definition of the family should be adopted and why
adoption of double standard-one for the primary unit of the family and another
in respect of a separate unit when living with the family was felt necessary, what
type of and in what cases clubbing should be prescribed G etc. All these
questions were considered having regard to the social and economic realities of
our rural life and with a view to nullifying the transfers effected in favour
of close relations for the purpose of avoiding the impact of ceiling
legislation. [1198 D-H, 1199 A] Karimbil Kunhikoman v. State of Kerala, [1962]
Supp. 1 S.C.R. 829; A. P. Krishnasami Naidu v. State of Madras [1964] 7 S.C.R.
82; explained and distinguished
5. An enactment particularly the enactment
dealing with agrarian reform which has been put on the Statute Book with the
avowed purpose of bringing 1184 about equality or rather reducing the
inequality between the haves and have-nots cannot be struck down as being
violative of Art. 14 of the Constitution simply because it has failed to make a
provision for what was regarded as an exceptional case or a rare contingency.
The material furnished on behalf of the State Government by way of
justification for adopting an artificial definition of family and double
standard for fixing ceiling is sufficient to repel the attack on these
provisions under Art. 14. [1199 E-G] Adopting "family" as a unit as
against "an individual" was considered necessary as that would reduce
the scope for evasion of law by effecting mala fide partitions and transfers
since such transactions are usually made in favour of family members, that
normally in rural agricultural set up in our country the family is the
operative unit and all the lands of a family constitute a single operational
holding and that therefore ceiling should be related to the capacity of a
family to cultivate the lands personally.
[1198 G-H, 1199 A] In fact, a provision like
s. 4(3) which makes for the augmentation of the permissible area for a family
when the adult sons do not on or hold lands of their own but are living with
the family has one virtue, that it ensures such augmentation in the case of
every family irrespective of by what personal law it is governed and no
discrimination is made between major sons governed by different systems of
personal laws. So far as an adult son living separately from the family is
concerned, he is rightly regarded as a separate unit who will have to file a
separate declaration in respect of his holding under s. 9 of the Act and since
he is living separately and would not be contributing his capacity to the
family to cultivate the family lands personally there is no justification for
increasing the permissible area of the primary unit of the family. The case of
an unmarried daughter or daughters living with the family, was probably
considered to be a rare case and it was presumed that daughters would become
members of their husband's units, and that is why no separate provision was
made for giving additional land for every unmarried major daughter living with
the family. [1199 A-E, 1199 G-H, 1200 A]
6. There is no question of any discrimination
resulting to the wife from the right of selection being given to the husband
under s. 9(4) (c) of the Act. In the first place, the selection of permissible
area which is desired to be retained will ordinarily be guided by the
consideration of retaining the best quality land with the family, be it of the
husband or of the wife or even of the minor children, and not by the
consideration as to whose land should be sacrificed. But, apart from this
aspect of the matter, it is precisely to meet such situation that s. 11(2) has
been enacted which provides that the land as retained as permissible area of
the family and the separate unit shall be owned or held by the members of the
family and also separate unit in the same proportion in which they owned or
held land before the selection of the permissible area. In other words if out
of sheer cussedness, the husband were to select his land which he desires to
retain as the permissible area and gives away his wife's land as surplus, he
will do so at his peril, for in the land so retained as permissible area he and
his wife shall have a share in the same proportion in which they owned or held
their lands before the selection of the permissible area. [1200 D, E-H]
7. Section 8 of the Act is not violative of
Art. 14 of the Constitution. Under sub-s. (3) it is provided that if any person
transfers any land after the appointed day in contravention of sub-s. (1), the
land as transferred shall be 1185 deemed to be owned or held by that person in
calculating the permissible area and his surplus area over and above the
permissible area will be determined 'by ignoring the transfer and in case the
area left with him after such transfer is equal to the surplus area as
calculated, the entire area left with him shall be deemed to be the surplus
area meaning thereby the same shall vest in the State Government. Here again,
if the husband's behaviour is guided by self-interest, as it would normally be,
he would be indulging in the type of activity complained of at his own peril
for he would not only be putting his own land into jeopardy of litigation but
also lose the wife's land which will become surplus and vest in the State
Government.
[120 A-D]
8. It is s. 7 of the Act which imposes a
ceiling on agricultural land by providing that no person shall be entitled to
hold, whether as a landowner or as a tenant or as a mortgagee with possession
or partly in one capacity or partly in other, within the State of Haryana
exceeding the permissible area on or after the appointed day (24-1-1971).
"Permissible area" under s. 3(1)
means the extent of land specified as such in s. 4. For the purpose of
determination of permissible area s. (4) divide land into three categories and
prescribes the permissible area in respect of each of the said categories A,
& C. For evaluation of the lands held by a person for determining his
permissible area one is required to turn to the Rules made in that behalf being
Rules 5(1) and 5(2) of the Haryana Ceiling on Land Holdings Rules 1973, for s.
4(4) only says that evaluation is to be made in the 'manner prescribed which
must mean the manner prescribed by Rules. Fixation of the extent of permissible
area has been actually done by s.4(1) itself inasmuch as the said provision
apart from dividing land into three categories prescribes and fixes the extent
of permissible area in respect of each of the three categories, the extent being
mentioned against each and it is merely the basis of evaluation to be made for
determining the permissible area that is left for being prescribed by Rules.
[1202 A-C, G-H, 1204 D-E]
9. It is fairly clear that the three
categories into which s.4 (1) divides land for determination of permissible
area are mutually exclusive and ordinarily if a land-holder is able to
establish that the land hold by him exclusively falls within one or the other
category his permissible area would ger straightaway determined by the extent
specified in the section against each category and it is only when a
land-holder has lands of more than one category that his permissible area shall
have to be determined on the basis of evaluation to be made in the prescribed
manner under s. 4(4) read with Rules S(1) and 5(2). This is made clear by the
opening words of Rule 5(1), namely, "the land held by a person shall be
evaluated by converting various categories.
Prescribed manner is to be found in both the
Rules, namely, Rules 5(1) and 5(2) and not merely in one or the other, but it
is clear that the two Rule deal with different topics and operate in different
fields; whereas Rule 5(1) indicates the inter relation between different
categories of land by prescribing the equating formula, Rule 5(2) provides for
mathematical formula for arriving at the correct figures of different
categories of lands by reference to irrigation intensity ratio specified
against each of the Government canals or tube wells mentioned in the Schedule
as also in case of land irrigated by private tube wells and pumping sets. It is
not correct to say that while furnishing illustrations under Rule 5(2). Rule
5(1) has been ignored;
in fact, the first illustration given under
Rule 5(2) (a) while applying the mathematical formula takes into consideration
the inter-relation mentioned in Rule 5(1) and there is no question of Rule
5(2)(a) in its application doing reverse 1186 of what Rule 5(1) lays down.
Further, if the first illustration given below Rule 5(2)(a) is carefully analysed
it will be clear there is nothing like Rule 5(2)(a) going beyond s. 4(1) of the
Act and there is no question of reducing the permissible area of a person from
21.8 hectares to only 13.88 hectares. In that illustration certain basic facts
are assumed to exist, namely, the person is holding 25 hectares of land
commanded for irrigation by a perennial canal the irrigation intensity ratio
where of is 57 % and on these facts the illustration works out his permissible
area.
First by applying the mathematical formula
given in Rule S(2)(a) the extent of 'A category land' is computed at 7.12
hectares. (Incidentally the very fact that 25 hectares of land commanded for
irrigation by a perennial canal having the irrigation intensity ratio of 57%
can comprise 'A category land' up to 7.12 hectares negatives the contention
that to have 'A category land' the canal must have intensity ratio of 200% per
annum or to have 'B category land' the canal must have intensity ratio of 100%
per annum or that any land' irrigated by a canal having less than 100% per
annum intensity ratio must be categorised as 'Cl category land'). Therefore,
after deducting 7.12 hectares as 'A category land' out of 25 hectares, the
balance 17.88 hectares is said to be `category land'. Then by applying the
equating formula in Rule 5(1) his entire holding of 25 hectares is converted
into national 'C category land' (7.12 X 3 would give 21.36 to which 17.88 is
added) which comes to 39.24. But in reality he holds only 25 hectares.
Therefore, by applying the rule of three his permissible area in 'C category
land' would be 13.88 hectares and the balance of 11.12 hectares is declared to
be surplus. There is no reduction of 'C category land' from 21.8 hectares to
13.88 hectares, for if out of 25 hectares 21.8 hectares were to be allowed to
the landholder as 'C' category land by invoking s. 4(1) or only Rule 5(1) that
will be ignoring the fact that out of his total holding an area to the extent
of 7.12 hectares has the potential of 'A' category land and, therefore, giving
him 21.8 hectares as 'C' category land would be clearly - wrong. Therefore,
Rule 5(2) of the Haryana Ceiling on Land Holding Rules 1973 is valid. [1204 H,
1205 A-H, 1206 A-D]
10. The amount payable for such surplus land
that vests in the State Government is to be calculated at the rates shown in
the Table given below s. 16(1) and it is clear that the rates are based on the
actual quality of the soil and its yield and the same cannot be said to be
illusory. [1206 D-E]
11. The right of appeal is a creature of a
statute and there is no reason why the legislature while granting the right
cannot impose conditions for the exercise of such right so long as the
conditions are not so onerous as to amount to unreasonable restrictions
rendering the right almost illusory. [1207 F] Neither the amended s. 18(7) is
onerous in nature nor do that sub-section and sub-section (8) of s. 18 put any
fetter on the right of appeal and revision provided for in s. 18(1) and (2) as
originally enacted in 1972. In the first place, the object of imposing the
condition is obviously to prevent frivolous appeals revision that impede the
implementation of the ceiling policy: secondly, having regard to sub-ss. (5)
and (9) it is clear that the cash deposit or bank guarantee is not by way of
any exaction but in the nature of securing mesne profits from the person who is
ultimately found to be in unlawful possession or the land; thirdly, the deposit
or the guarantee is so-related to the land holdings tax (30 times the tax)
which. varies in the State 1187 Of Haryana around a paltry amount of Rs. 8/-
per acre annually; fourthly, the deposit to be made or bank guarantee to be
furnished is confined to the land holdings tax payable in respect of the
disputed area i.e., the area or part thereof which is declared a surplus after
leaving the permissible area to the appellant or petitioner. Having referred to
these aspects, particularly the meagre rate of the annual land tax payable, the
fetter imposed on the right of appeal/revision, even in the absence of ;1
provision conferring discretion the appellate/revisional authority to relax or
waive the condition cannot be regarded as onerous or unreasonable. [1207 G-H,
1208 A-D] Anant Mills Ltd. v. State of Gujarat A.I.R. 1975 S.C. 1234 applied.
12. Section 8 (3) of the Act does not violate
the second proviso of s. 31A. The Act including - the said provision having
been included in the Ninth Schedule will receive the protection of Art. 31B.
[1208 D-E]
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.
1361 OF 1977 Appeal by Special Leave from the Judgment and order dated the
17-3-1977 of the Punjab and Haryana High Court at Chandigarh in Writ Petition
No. 4766 of 1976 AND CIVIL APPEALS Nos. 2785-86, 2935-38, 2893, 2823-25, 2235,
1348, 1362 - 74, 1525- 27, 2022-23, 2144, 2234, 2707, 2710, 2831, 2723-24,
2423- 26, 2805-09/77, 976, 843-44, 1263, 56-67, 1010-1014, 1076, 1898-1901,
1902 - 16, 2043- 47, 2064, 1674 -76, 120 -27, 1079, 291, 318-19, 132, 546, 547,
671, 941- 45, 946, 949, 1650, 1876, 1878 - 1895, 1813, 1829, 176-77, 139, 276,
576, 581 - 83, 1645- 48, 1554, 992 - 998, 1789-1803, 1831 - 33, 2071- 74, 2162,
2216, 2233, 2234, 2294, 2436-39 of 1978 & 2725 of 1977.
WITH
S.L.P. (Civil) No. 3498-99, 4270, 4419, 4420, 4455, 4735, 5205, 5238/77, 63,
64, 65, 99, 352-353, 442, 443, 454, 455, 608, 635, 622, 623, 778-79, 1819,
1303, 1312, 1414, 1404, 1573, 1576- 79, 1715, 1842, 1849-50, 1959, 2370, 2013-
14, 2414, 2462, 2491-92, 3102-03, 3225-26, 3569, 3413, 3476, 1423, 4072, 3519,
3521, 3541- 44, 3715, 3746, 3819, 3857-58, 3891-96, 4052, 4539, 4500 - 11,
*4655- 67, 4617, 4815-17, 4818, 4830, 4831 - 34, 4836-37, 4849, 4864 -76, 4966,
4972, *4973- 81, 4983A - 5002, 5004 - 7, 5030, 4850-51, 4863, 5008- 22, 5024,
5025, 5049, 5126- 29, 5174 - 84, 5272, 5211, 5250 - 57, 5271, 5290 - 93, 5340-
46, 5385, 5402 -08, 5413 - 15, 5454, 5460 - 72, 5516-19, 5628, 5625, 5634 - 36,
5637- 44, 5646-47, 5786-87, 5788- 90, 5869 - 72, 5873, 5907 - 24, 5939-40, 5970
- 74, *5975- 84, 6002, 6120, 6126- 33, 6158- 62, 6208, 6209, 6240, 6216-18,
6246-47, 6361-62, 6395, 6421, 6449 - 53, 6582, 6645- 49, 6677 - 78, 6654, 6656,
6669/78 and 200-214 & 215/80 ( *4662/78, 4974/78 and 5975- 5977/78
Withdrawn) 1188 WITH WRIT PETITION NOS. 4306, 4312, 4377 & 4507 of 78.
M.N. Phadke, Nishat Singh, B.P. Maheshwari,
Suresh Sethi, V.M. Tarkunde, Naunitlal and Naurang Singh, for the appellant/
petitioners in Civil Appeals 2785-86, 2935-38, 2234-35, 2707-10, 2831
2805-9/77, 120-22, 318-19, 671, 176, 276, 2071-84/78, 171, ''216178, SLPS.
91-93/78 3541-44, 5126-29, 6216-18, 6421, 5308/78 and WP 4377, CA 2893/77., R.K
Mohan and Mrs. Geetanjali Mohan for the appellants/petitioners in CAs. 2823-25,
1525-27, 2022-23/77, 2069-70/78, 1813/78, 2144, 2423-26/77, 1263, 56-67,
1010-14, 1898-1901, 1902-16, 2064-68, 1392, 291, 546-47, 941-45, 946- 49, 139,
576, 1789-1803 1828, 2436-39/78, SLPs. 442, 443, 454, 608, 635, 778, 779, 1819,
1401, 1414, 1573, 1576-79, 1849-50, 2013-14, 2414, 2462, 3102-3, 3225-26, 3369,
3746, 5272, 3819, 3857-58, 3891-96, 4052, 4500-11, 4655-67 4983A- 5002,
5174-84, 5460-72, 5907-24, 5970-74, 6126-33, 6645-49, 6677-78/78 4270, 4455,
4735, 5205 & 5238/77 & 5030/78.
V.M. Tarkunde, O.P. Malhotra, P.R. Mridul,
H.K. Puri, for the appellant in CAs. 1348, 1362-74/77 & petitioners in
SLPs. 4539 and 562/78 N.C. Sikri for the appellants in CAs. 2723-24177 &
2725/77.
Lakshmi Arvind for the appellants in CAs.
976, 1076178 & petitioners in SLPs. 622, 623, 1715/78 and WP No. 4312.
S.K. Mehta for the appellants in CAs. 843-44,
546/78& petitioners in SLPs. 4815-17, 5008-22, 5024, 5025, 5290-93,
5340-46, 5869-72 3 of 1978, 4419-20/77.
S.M. Ashri S.S. Sharma for the appellants in
CAs. 2043- 47, 1831-34/78 & petitioners in SLPs. 4617, 4830, 5454, 5628,
6246-47/78 & 4863178.
R.S. Mittal and A. Minocha for the appellants
in CAs.
1674-76, 1554/78 & petitioners in SLPs.
5873/78, 5646-47/78.
M.B. Lal for the appellants in CA. 1079/78.
B.P. Maheshwari and S. Grewal for the
appellants in CA.
132/78 & petitioners. in SLPs. 63-65, 99,
352, 353, 455/78, 208-14180, 209-245/80.
Sarva Mitter for the appellants in CAs. 1650,
1878- 89/78, 1890-95/78, and petitioners in SLPs. 4831-34, 4836, 4837, 4864,
76, 4966, 5250-57, 5402-8, 5634-44, 5646-47, 5975-5984, 6158-62, 6449-6453,
6654/78, 5271/78.
1189 S.K Sabharwal for the appellants in CAs.
1876, 1645- 48/78 and petitioners in SLPs. 3519, 4972, 5004-5007, 6120/78 and
WP. 4507/78.
S.C. Patel for the appellants in CAs.
581-83/78, and petitioners in SLPs.(C). 1842/78, 3521, 4849, 4850-51/78.
Manoj Kumar for the appellants in CAs. 992-98/78,
S.K Dhingra for the appellants in CAs.2162/78 and petitioners in SLPs. 4973-81,
6361-62, 6395, 5413-5415/78.
D. Goburdhan for the appellants in CAs. 2233,
2234/78 and petitioners in SLPs. 5309-10/78.
Ramesh Chand for the appellants in CA.
2294/78.
I.S. Ratta, Vimal Dave and Miss K. Mehta for
the petitioners in WP. 4306/77 and SLPs. 3498-99/77.
R. Bana for the petitioners in SLPs.1303/78,
2370, 3413, 3476, 6002, 1423, 4072/78 & 1312/78.
Harbans Singh for the petitioners in SLPs.
1959/78, 5939-40/78.
Rameshwar Nath for the petitioners in SLP.
3715/78.
R.C. Kohli for the petitioners in SLP.
5049/78.
S.R. Srivastava for the petitioners in SLP.
5211/78.
S.K. Bagga for the petitioners in SLP.
5385/78.
J.D. Jain for the petitioners in SLPs. 5516-19,
5786- 90, 6208, 6656, 6669/78, 4818, 6239-40/78.
K.K Tienugopal, B. Datta, M.N. Shroff,
Hemantika Wahi, Anup Sachthey, Miss A. Subhashini, for appearing respondent.
The Judgment of the Court was delivered by
TULZAPURKAR, J. These appeals, by special leave, directed against the Full
Bench decision of the Punjab & Haryana High Court in Jas want Kaur's case,
seek to challenge the vires of some of the pro visions of the Haryana Ceiling
on Land Holdings Act 1972 (26 of - 1972) and according to the appellants some
of the provisions are pivotal and run through the whole Act and, therefore, the
entire Act is liable to be struck down.
The Act (26 of 1972) received the assent of
the President on 22-12-1972 and was published in the official Gazette on
23-12-1972. Section 2 contained and even now contains the requisite declaration
1190 that it was enacted for giving effect to the policy of the State towards
securing the principles specified in cls. (b) and (c) of Art. 39 of the
Constitution. The Act was included in the Ninth Schedule to the Constitution on
7-9-1974 (vide: Item 72), and, thereby it came under the protective umbrella of
Act. 31-B of the Constitution; however, on 9-9-1974 in Saroj Kumari's(1) case a
Division Bench of the Punjab & Haryana High Court, being apparently unaware
of such inclusion, struck down certain provisions of the Act on the ground that
those provisions violated the rights guaranteed by Part III of the
Constitution. The Division Bench also held that the provisions were not saved
by Art. 31-A of the constitution as those provision which mainly related to
'Family Unit', could not be said to be in furtherance of Art. 39(b) and (c) of
the Constitution. In so holding, the Division Bench relied on a Full Bench
decision of that Court in Sucha Singh's case where similar provisions of the
Punjab Land Reforms Act (Act 10 of 1973) had been struck down. The Full Bench
decision in Sucha Singh's case (supra) has since been reversed by this Court in
Civil Appeal No. 1040 of 1976 (reported in AIR 1977 SC 915). This Court has
taken the view that the provisions of Punjab Land Reforms Act are saved by both
Arts. 31-A and 31-B of the Constitution. The foundation on which the decision
in Saroj Kumari's case (supra) striking down certain provisions of the Haryana
Act (26 of 1972) rested has thus disappeared , However, after the decision in
Saroj Kumari's case (supra) the Act (26 of 1972) and the Rules framed under s.
31 thereof were amended extensively; the Act
was first amended by Haryana Act 17 of 1976 which Amending Act was also put in
the Ninth Schedule (vide: Item No. 137), the Act was further amended by Haryana
Acts Nos. 40 and 47 of 1976, 14 of 1977 and 18 of 1978, but the last four
Amending Acts have not been put in the Ninth Schedule. It is, therefore, clear
that the amendments effected in the Principal Act by Amending Act 17 of 1976
will receive the protective umbrella of Art. 31 but not the amendments effected
by the last four Acts. Moreover, though the Principal Act as amended by Act 17
of 1976 will be under the protective umbrella of Art. 31- B, the Haryana
Ceiling on Land Holdings Rules, 1973 as originally framed or even after
amendments, being subordinate legislation and not specified in the Ninth
Schedule may not receive such protection (Vide: Prag Ice & oil Mills(3)
case).
1191 After the Principal Act (26 of 1972) was
amended as above, several Will petitions were filed in the High Court of Punjab
& Haryana challenging the vires of some of the provisions of the Act. Since
the Principal Act as well as the Amending Act 17 of 1976 had been put in Ninth
Schedule, the challenge was based on the ground that those provisions were
vague uncertain, ambiguous and mutually inconsistent and, therefore, should be
struck down and neither Art. 31-A nor Art. 31-B of the Constitution could save
such provisions. The High Court rejected the plea, and in our view rightly, on
the ground that a statute enacted lay a Legislature falling within its
competence which did not offend any Fundamental Rights guaranteed by Part III
of the Constitution and which did not contravene any other provision of the
Constitution could not be declared ultra vires either on the ground that its
provisions were vague, or uncertain or ambiguous or mutually inconsistent. The
Court pointed out that unlike the American Constitution, there was no `due
process' clause in our constitution and, therefore, Indian Courts could not
declare a statute invalid on the ground that it contained vague, uncertain,
ambiguous or mutually inconsistent provisions, and that it was the duty and
function of the Indian Court, in relation to each forensic situation, to
examine the language of the law, the context in which it was made, to discover
the intention of the Legislature and to the interpret the law to make effective
and not to frustrate the legislative intent and in that behalf it could always
call in aid well known canons of interpretation and even where the provisions
of a statute appeared to be mutual inconsistent there were. several well- known
rules of interpretation to guide the Court in giving a proper meaning to the
provisions of a statute, such as, the rule of harmonious construction, the rule
that special shall prevail over the general etc. After negativing the main
plea, the Court went on to examine the concerned provisions which were said to
be vague or uncertain and mutually inconsistent and came to the conclusion that
certain expressions which were said to be vague were not so vague but had
definite import and connotation and that apparently inconsistent provisions
were not irreconcilable and all of them fitted well into the general scheme of
the Act. The only provision in respect of which relief was granted by the Court
was s. 20A which barred the appearance of any legal practitioner before any
officer of authority other than the Financial Commissioner in proceedings under
the Act, and the Court took the view that such a provision was repugnant to s.
14 of the Indian Bar Councils Act (which had continued in force in view s. 30
of the Advocates Act not having come into force) and, therefore, invalid.
Subject to holding s. 20A of the Act to be ultra vires and, therefore, issuing
a direction to the State not to enforce 1192 the said provision and subject to
giving some further directions in the matter of filling declarations etc.
before the authorities under the Act, the Court dismissed all the writ
petitions. In these appeals the appellants have challenged some of the
provisions of the Act on grounds substantially different from those that were
urged before the High Court.
Besides these Civil Appeals, a large number
of writ petitions as also petitions for special leave have been filed listed
before us where in almost identical points have been raised challenging the
provisions of the Principal Act (26 of 19720 as amended from time to time and
those also will stand disposed of by this judgment.
It is true that since the Principal Act (26
of 1972) as also the first Amending Act 17 of 1976 have been put in the Ninth
Schedule, counsel for the appellants have challenged the constitutional
validity of Art.31-B as also of the Constitution (34th Amendment) Act 1976
whereby the Principal Act as well as the first Amending Act were put in the
Ninth Schedule on the ground that Art. 31-B and these Constitutional Amendments
violated the basic structure or features of the Constitution. Similarly since
the Principal Act contains the requisite declaration under s.2 thereof that the
enactment is for the purpose of giving effect to the directive principles
enshrined in Art. 39(b) and (c), counsel for the appellants have also
challenged the constitutional validity of Art. 31-C as being violative of the
basic features of the Constitution. However, apart from these aspects, it
cannot be gainsaid that the Principal Act (26 of 1972) as amended form time to
time, if it falls within Art. 31-A of the Constitution, would be immune from
the attack on the ground of inconsistency with or abridgement of any of the
Fundamental Rights guaranteed by Arts. 14, 19 and 31. The constitutional
validity of Art. 31- A has all along been upheld by this court since Sankar
Prasad's case and its validity was not put in issue in Keshavananda Bharati's
case but the constitutional validity of Art. 31C was sought to be canvassed by
reference to Art.
31A. Moreover, consequent upon the
introduction of Art. 31A in the Constitution in 1951 this Court has repelled
the challenged to land reform laws as violative of fundamental rights conferred
by Arts. 14, 19 or 31 in State of Bihar v. Kameshwar Singh. In our view, it is
manifestly clear that the Principal Act (26 of 1972) together with.
1193 all the amendments made therein which
essentially is meant for imposition of ceiling on agricultural holdings and
acquisition and distribution of the surplus area to landless and weaker
sections of the society is in substance and reality an enactment dealing with
agrarian reform and squarely falls within Art. 31A of the Constitution and as
such will enjoy the immunity mentioned above. The challenges made before us to
some specific provisions of the Act will, therefore, assume different
complexion and will have to be dealt with accordingly.
The principal attack made against the Act is
that it enacts an artificial definition of 'family' in s.3(f), which does not
conform to any kind of natural families prevalent in the State like a Hindu
Undivided Family known to Hindu Law or any family under Muslim Law etc. and
that a double standard has been adopted in s. 4 in the matter of providing
ceiling which leads to gross inequalities and as such these provisions are
violative of Art. 14 of the Constitution.
Counsel for the appellants urged that this
artificial definition of 'family' given in s. 3(f) is required to be read with
two other definitions, namely, the definition of 'permissible area' given in
s.3(1) and the definition of 'separate unit' given in s. 3(q) and read in that
fashion the artificial definition of family alongwith s.4, which prescribes
permissible area by adopting double standard for fixing ceiling in the case of
'primary unit of family' and 'separate unit' produces discriminatory results
and according to him since the definition of family is pivotal and occurs in
major provisions of the Act such as sections 4(1), 4(3), 7, 8, 9, and 11(1), it
will render the whole Act unconstitutional as being violative of Art. 14 of the
Constitution. He also urged that these major provisions through which the
artificial definition of family runs are not severable and, therefore, the
whole Act will have to be struck down. In order to appreciate this contention
it will be necessary to examine the relevant provisions of the Act.
Section 3(f) defines 'family' thus:
"3. (f) 'family' means husband, wife and
their minor children or any two or more of them.
Explanation I-A married minor daughter shall
not be treated as a child." Explanation II is not material for the purpose
of the point under consideration.
Section 3(1) defines 'permissible area' thus:
"3.(1). 'permissible area' means the
extent of land specified in section 4 as the permissible area;" 1194
Section 3(q) defines 'separate unit' thus:
"3(q). 'separate unit' means an adult
son living with his parents or either of them and in case of his death his
widow and children, if any.
Explanation: The adult son or in case of his
death his widow and children shall be deemed to be living with the parents or
either of them unless separated;" It is sec.7 which imposes the ceiling on
agricultural landholding and it provides that notwithstanding anything to the
contrary contained in any law, custom, usage or agreement, no person shall be
entitled to hold whether as landowner or tenant or as a mortgagee with
possession or partly in one capacity or partly in another, land within the State
of Haryana exceeding the permissible area on or after the appointed day (which
under s. 3(c) is 24-1-71). Section 3(m) defines person as including inter alia
family. The Explanation to s. 7 is important which provides for clubbing and
says that where the person is a family including the separate unit, if any the
land owned or held by such person together with the land owned or held by the
members of the family and the separate unit shall be taken into account for the
purposes of calculating the permissible area. The next important provision is
s. 4 which deals with permissible area and sub-ss.(1), (2) and (3) thereof are
material to the point at issue and these provisions run thus:
"4(1) The permissible area in relation
to a landowner or tenant or mortgagee with possession or partly in one capacity
or partly in another, or person or family consisting of husband, wife and upto
three minor children (hereinafter referred to as "the primary unit of
family"), shall be, in-respect of- (a) land under assured irrigation
capable of growing at least two crops in a year (hereinafter referred to as the
land under assured irrigation, 7.25 hectares (=18 acres).
(b) land under assured irrigation capable of
growing at least one crop in a year, 10.9 hectares (=27 acres).
(c) land of all other types including land
under orchard, 21.8 hectares (=54 acres);
1195 (2) The permissible area shall be
increased by one-fifth of the permissible area of the primary unit of family
for each additional member of family:
Provided that the permissible area shall not
exceed twice the permissible area of the primary unit of family.
(3). The permissible area shall be further
increased up to the permissible area of the primary unit of a family for each
separate unit:
Provided that where the separate unit also
owns any land, the same shall be taken into account for calculating the
permissible area." On reading the aforesaid provisions, two or three
aspects emerge very clearly. In the first place, there is no doubt that for the
purposes of the Act the concept of family has been defined in an artificial
manner as meaning husband, wife and their minor children and excludes major
sons and unmarried daughters. Secondly, under s.4(1) 'the primary unit of
family' is confined to five members, namely, husband, wife and their minor
children upto three with reference to which permissible area has been
prescribed, but under s.4(2), the permissible area is said to increase by
one-fifth of the permissible area of the primary unit for each additional member
of the family, such as the fourth or fifth minor child etc. but subject to the
maximum limit prescribed in the proviso, namely, the permissible area shall not
exceed twice the permissible area of the primary unit of the family. Thirdly,
in respect of each separate unit, namely, each adult son living with his
parents the permissible area will be further increased up to the permissible
area of the primary unit of a family under s.4(3), provided that where the
adult son also owns any land the same shall be taken into account for
calculating the permissible area. In other words, in cases where the primary
unit of family owns or holds land (say 54 acres under cl.(1) (c) of s.4) and an
adult son living with the family also owns or holds similar land of his own (say
54 acres) then the permissible area for the family will be 108 acres after
clubbing the two holdings under s.4(3) and there will be no question of any
augmentation of area for the family but in cases where the separate unit (adult
son) owns or holds no land of his own but is living with the family the primary
unit's holding gets augmented up to two units, that is to say, the family will
be entitled to retain 108 acres and the balance will be surplus simply because
the adult son is living with the family; but no such augmentation will occur if
unmarried daughter or daughters are 1196 living with the family or if the adult
son is living away separately from the family.
Mr. Tarkunde appearing for the appellants,
therefore, contended that if the concept of family as artificially defined in
s.3(f) is worked out in s.4(1), 4(3) and 7, gross inequalities result and he
explained the resulting gross inequalities by giving the following
illustration: in cases where the separate units do not own or hold any land of
their own, the primary unit of family consisting of father, mother and three
minor children under s.4(1) will be able to retain with the family one unit of
the permissible area, be it 18 acres or 27 acres or 54 acres, but by reason of
the clubbing that is provided for in the Explanation to s.7 and reading the
same with s.4(3) the primary unit comprising father, mother and three minors
and one major son living with it will be able to retain two units (i.e. either
36 acres or 54 acres or 108 acres); further a primary unit consisting of
father, mother and three minors and two major sons living with it will be able
to retain three units while the primary unit consisting of father, mother and
three minors and three major sons living with it will be able to retain four
units and so on and this is because the major sons who constitute separate
units happen to live with the family. But if unmarried daughter or daughters
are living with the family the permissible area for the family is not increased
or allowed to be augmented and this is clearly discriminatory. Similar
discriminatory result occurs if the adult son is not living with family. Such
discriminatory treatment becomes possible because of the artificial definition
of family as given in s.3(f) of the Act and because double standard for fixing
the permissible area has been prescribed and, therefore, s.4 which prescribes
such double standard for fixing the ceiling is violative of Art.14 of the
Constitution.
In support of his contention, reliance was
placed by him upon two decisions of this Court in Karimbil Kunhikoman v. State
of Kerala(1) and A. P. Krishnasami Naidu v. State of Madras(2). He pointed out
that in the former case the Court was concerned with the provisions of the
Kerala Agrarian Relations Act, 1961 where s.2(12) defined family in an
artificial manner which did not conform to any of the three kinds of the
families prevalent in Kerala State and s.58 fixed the ceiling by adopting a
double standard and the Court held that s. 58(1) was violative of Art. 14 and
as the section was the basic of the entire Chapter III, the whole Chapter must
fall with it. Similarly, in the second case, the 1197 Court was dealing with
Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961 where the
definition of family given in s.3(14) was regarded as artificial and since
s.5(1)(a) adopted a double standard for fixing the ceiling, the Court held that
the same resulted in discrimination between persons equally circumstanced and,
therefore, the said provision was violative of Art. 14 of the Constitution and
since it was the basis of Chapter II the whole Chapter fell with it. Counsel
urged that the ratio of these two decisions of this Court squarely applied to
instant case and since the said provisions ran through the major sections of
Chapter III of the act the whole Chapter was liable to be struck down.
It is not possible to accept the contention
of Mr. Tarkunde for two reasons. It is true that provisions pertaining to
artificial definition of family and the adoption of double standards for
fixation of ceiling contained in the instant Act are similar to those which
obtained in the Kerala Agrarian Relations Act, 1961 and the Madras Land Reforms
(Fixation of Ceiling on land) Act, 1961, but even so, there are two
distinguishing features which would make the ratio of those two decisions
inapplicable to the instant case. In the first place, in both these decisions
it was an admitted position that the concerned enactments were not governed by
or protected under Art.31-A of the Constitution and it was in the absence of
such protection that the attack to the material provisions of the enactments on
the ground of violation of Art.14 was entertained by this Court. At page 833 of
the Report in the first case, there is a categorical statement made to the
effect that the concerned Act, so far as it affected the petitioners therein,
was not protected under Art.31-A and it was open to assail it as violative of
the rights conferred on them by Articles 14, 19 and 31 of the Constitution.
Similarly, at page 84 of the Report in the
second case, there is a statement to the similar effect that the Madras Act was
not protected under Art 31-A of the Constitution and it was in that background
that the Court considered the attack based on Art. 14 on the two main
provisions of the Act, relating to ceiling area under s 5 and compensation
under s.50 read with Schedule III of the Act. In the instant case it cannot be
disputed that the principal Act (26 of 1972) as amended subsequently is a piece
of agrarian reform legislation squarely falling with Art.31-A of the
Constitution and, therefore, the Act and the concerned provisions would be
immune from attack based on Articles 14, 19 and 31 of the Constitution.
Secondly, in both these decisions, no material by way of justification was put
before the Court on behalf of the State for the adoption of the double standard
in the matter of fixing the ceiling read with the artificial definition of the
family which resulted in discriminatory results- 1198 and this has been
specifically mentioned by the Court in both the judgments, while in the instant
case on behalf of the State of Haryana, as we shall indicate presently ample
material has been produced before the Court justifying the adoption of the
artificial definition of family and the double standard for fixing the ceiling
negativing the violation of Art. 14. On behalf of the State material in the
form extracts from Reports of the Committee on Panel of land Reforms under
Planning Commission, (January 1956), extracts from a note prepared in the Land
Reforms Division of the Planning Commission (1960), extracts from Second Five
Year Plan, Chapter 9 on Agrarian Land Reorganisation, extracts from the Report
of the Committee on Ceiling on Land Holdings-Planning Commission (April 1961),
extracts from Summary Record of Chief Ministers' Conference on Land Reforms
(26-27 September, 1970), extracts from Summary Record of Chief Ministers'
Conference on Land Reform (23rd July, 1972), and Guidelines drawn up on the
basis of the conclusions of the Chief Ministers' Conference (23rd July 1972),
and extracts from Ceiling on Agricultural Holdings by P.S. Appu published by
the Ministry of Agriculture, Government of India in 1972, has been placed
before the Court from which it will appear that the State had applied its mind
seriously to these questions: whether family should be adopted as a unit
instead of an individual for applying ceiling on land holdings, what should be
the size of the family, why artificial definition of the family should be
adopted and why adoption of double standard-one for the primary unit of the
family and another in respect of a separate unit when living with the family
was left necessary, what type of and in what cases clubbing should be
prescribed etc., and after going through this material we do find that all
these questions were considered having regard to the social and economic
realities of our rural life and with a view to nullifying the transfers
effected in favour of close relations for the purpose of avoiding the impact of
ceiling legislation. It has been pointed out that a large number of
alternatives were considered, that every alternative was beset with
difficulties of some kind or the other and no particular course was free from
blemish altogether but for that reason the main objective could not be given up
and ultimately, on the basis of a consensus reached at the Chief Ministers'
Conference hold on July 23, 1972 certain policy decisions were taken on these
vexed questions. It has been pointed out that adopting 'family' as a unit as
against 'an individual' was considered necessary as that would reduce the scope
for evasion of law by effecting mala fide partitions and transfers since such
transactions are usually made in favour of family members, that normally in
rural agricultural set up in our country the family is the operative unit and
all the lands of 1199 a family constitute a single operational holding and that
therefore ceiling should be related to the capacity of a family to cultivate
the lands personally. It has been pointed out that keeping all these aspects in
view the concept of family was artificially defined and double standard for
fixing ceiling, one for the primary unit and other for the adult son living
with the family was adopted.
In fact, a provision like s.4(3) which makes
for the augmentation of the permissible area for a family when the adult sons
do not own or hold lands of their own but are living with the family has one
virtue, that it ensures such augmentation in the case of every family
irrespective of by what personal law it is governed and no discrimination is
made between major sons governed by different systems of personal laws. So far
as an adult son living separately from the family is concerned, he is rightly
regarded as a separate unit who will have to file a separate declaration in
respect of his holding under s.9 of the Act and since he is living separately
and would not be contributing his capacity to the family to cultivate the
family lands personally there is no justification for increasing the
permissible area of the primary unit of the family. The case of an unmarried
daughter or daughters living with the family, counsel pointed out, was probably
considered to be a rare case and it was presumed that daughters would in normal
course get married and would become members of their husbands' units, and that
is why no separate provisions was made for giving additional land for every
unmarried major daughter living with the family. On the materials placed and
the initial presumption of constitutionally, we find considerable force in this
submissions. It is, therefore, not possible to strike down an enactment
particularly the enactment dealing with agrarian reform which has been put on
the Statute Book with the avowed purpose of bringing about equality or rather
reducing the inequality between the haves and the have not, as being violative
of Art. 14 of the Constitution simply because it has failed to make a provision
for what was regarded as an exceptional case or a rare contingency. In our
view, the material furnished on behalf of the State Government by way of
justification for adopting an artificial definition of family and a double
standard for fixing ceiling is sufficient to repel the attack on these
provisions under Art. 14. However, before parting with this point we might like
to observe that the State of Haryana should consider sympathetically the case
of unmarried major daughters living with the family and for that matter even
the case of a divorced daughter who has come back to the family by providing
for addition of some more land to the permissible area of the primary unit of
the family for each such unmarried major daughter or such divorced daughter
which again could be subjected 1200 to some maximum limit or the State of
Haryana may draw inspiration from a kindred legislation like West Bengal Land
Reforms Act 1955 as amended by West Bengal (Land Reforms) amendment Act, 1972.
The next provision challenged by counsel as
being violative of Art.14 was s.9 which requires every person, who on the
appointed day or at any time thereafter holds land exceeding the permissible
area, to furnish within the specified period to the prescribed authority a
declaration giving the particulars of all his land and that of the separate
unit in the prescribed form and manner and starting therein his selection of
parcels of lands not exceeding in aggregate the permissible area which he
desires to retain.
Under Explanation I to that section, it is
provided that where the person is a member of the family, he shall include in
his declaration particulars of land held by him and also of land, if any, held
by other members of the family and the separate unit. Under sub-s.(4) (c) such
declaration in the case of a family is required to be furnished by the husband,
or in his absence, by the wife, or in the absence of both, by the guardian of
minor children. It was urged that since the husband has been given the right to
furnish the declaration as also to make the selection of the lands within the
permissible area which he desires to retain, the husband can, while making the
selection, give away his wife's land as surplus, and this was discriminatory
against wife who might lose her land declared as surplus. We do not find any
substance in this contention. In the first place, the selection of permissible
area which is desired to be retained will ordinarily be guided by the
consideration of retaining the best quality land with the family, be it of the
husband or of the wife or even of the minor children, and not by the
consideration as to whose land should be sacrificed. But, apart from this
aspect of the matter, its preciously to meet such situation that s.11(2) has
been enacted which provides that the land so retained as permissible area of
family and the separate unit shall be owned or held by the members of the
family and also separate unit in the same proportion in which they owned or
held land before the selection of the permissible area. In other words, if out
of sheer cursedness, the husband were to select his land which he desires to
retain as the permissible area and gives away his wife's land as surplus, he
will do so at his peril, for in the land so retained as permissible area he and
his wife shall have a share in the same proportion in which they owned or held
their lands before the selection of the permissible area. In our view,
therefore, there is no question of any discrimination resulting to the wife
from the right of selection being given to the husband under s. 9(4) (c) of the
Act.
1201 Similar contention was urged by Mr.
Tarkunde with reference to s. 8 of the Act which prohibits all transfers of
land in excess of the permissible area, except a bona fide transfer, after the
appointed day and declares that such transfers shall not affect the right of
the State Government to the surplus area to which it could be entitled but for
such transfer. Under sub-s. (3) it is provided that if any person transfers any
land after the appointed day in contravention of sub-s. (1), the land so
transferred shall be deemed to be owned or held by that person in calculating
the permissible area and his surplus area over and above the permissible area
will be determined by ignoring the transfer and in case the area left with him
after such transfer is equal to the surplus area so calculated, the entire area
left with him shall be deemed to be the surplus area meaning thereby the same
shall vest in the State Government. What was urged by Mr. Tarkunde was that the
effect of clubbing of the holdings of the husband and wife on such invalid
transfer could be that the husband by transferring his land in contravention of
sub-s.(1) will deprive the wife of her land which becomes surplus under sub-s.
(3). Here again, if the husband's behaviour is guided by self-interest, as it would
normally be, he would be indulging in the type of activity complained of at his
own peril for he would not only be putting his own land into jeopardy of
litigation but also lose the wife's land which will become surplus and vest in
the State Government. The challenge to the aforesaid provisions under Art. 14
must fail.
Mr. Phadke counsel for some of the appellants
in these appeals challenged the vires of some of the Rules, particularly Rule
5(2) of the Haryana Ceiling of Land Holdings Rules 1973 framed under s. 31 of
the Act on several grounds. He contended that effective ceiling has been
brought about by the Rules and not by Sections of the Act, that Rule 5(2) was a
clear instance of excessive delegation of the essential legislative function,
that Rule 5(2) goes beyond the scope or ambit of and is, therefore, ultra vires
s.4(1), that it was wrong to think that 'prescribed manner' was only to be
found in Rule 5(2) (a) and not in Rule 5(1) and that, in fact, in its working
Rule 5(2) (a) does the reverse of what Rule 5 (1) lays down, that is to say,
instead of first converting various categories of land of a person into 'C'
category and then permitting him to select an area equivalent to 21.8 hectares
(=54 acres) of such converted 'C' category land so that his remaining land
shall be treated as surplus area, Rule 5(2) first converts all irrigated lands
into 'A' category wrongly, and then by subtracting it from the rest of the
land, declares that the remainder shall be 'C' category land. In order to
appreciate these contentions properly it will be necessary to examine the
provisions of the Act and the Rules concerning the imposition of ceiling on
agricultural holdings and the determination of permissible area.
1202 As pointed out earlier, it is s. 7 of
the Act which imposes a ceiling on agricultural land by providing that no
person shall be entitled to hold, whether as a landowner or as a tenant or as a
mortgagee with possession or partly in one capacity or partly in other, land
within the State of Haryana exceeding the permissible area on or after the
appointed day (24.1.1971). "Permissible area" under s. 3(1) means the
extent of land specified as such in s. 4. For the purpose of determination of
permissible area s. 4(1) divides land into three categories and prescribes the
permissible area in respect of each of the said categories and, as indicated
earlier, it is 7.25 hectares (=18 acres) for category under s. 4(1)(a), 10.9
hectares (=27 acres) for category under s. 4(1)(b) (styled 'B' category land'
under Rule 2) and 21.8 hectares (=54 acres) for category under s.4(1)(c)
(styled 'C category land' under Rule 2). Section 4(5) further sub-divides land
falling under s.4(1)(a) into two classes: (i) land under irrigation from a
canal or State tube-well (styled 'A category land' under Rule (2) and (ii) land
under irrigation from privately owned tube-wells, pumping sets, etc. (styled
'AA category land' under Rule 2) and the inter relation between these two
classes is indicated in s. 4(5) thus:
"4(5) In determining the permissible
area for the purpose of clause (a) of sub-section (1), five hectares of land
under irrigation from privately owned tube- wells, pumping sets, etc., shall be
equal to four hectares of land under irrigation from canal as defined in the
Northern India Canal and Drainage Act, 1873 (Central Act 8 of 1873), or from
State Tube-well as defined in the Punjab State Tubewell Act, 1954 (Punjab Act
21 of 1954)." Section 4(4) lays down the manner in which the permissible
area shall be determined and it runs thus:
"4(4) The permissible area shall be
determined on the basis of valuation to be calculated in the prescribed manner
taking into consideration the ownership of the means of irrigation, their
intensity and such other factors as may be prescribed subject to the condition
that the total physical holding does not exceed 21.8 hectares." In other
words, for evaluation of the lands held by a person for determining his
permissible area one is required to turn to the Rules made in that behalf being
Rules 5(1) and 5(2) of the Haryana Ceiling on Land Holdings Rules 1973, for
s.4(4) only says that evaluation is to be made in the 'manner prescribed' which
must mean the manner prescribed by Rules Rule 5(1) runs thus:
1203 "5.(1) the land held by a person
shall be evaluated by converting various categories into C category land
according to the following formula:- 1 unit of 1.25 units of 1.5 unit of 3
units of A category - AA category - B category - C category land land land land
Such person shall be allowed to select an area equivalent to 21.8 hectares of C
category land as permissible area and the remaining land shall be treated as
surplus area." Rule 5(2) runs thus:
"5. (2) Land irrigated by
Canal/Government Tubewells.-In case the land is irrigated by canal or Government
tubewell,- (a) where land is commanded for irrigation by a perennial canal, the
area of such land shall be multiplied by half of the irrigation intensity ratio
specified against each canal in Schedule 'A' appended hereafter. The figure
thus arrived at shall be treated as 'A' category land and the remaining area of
such land shall be treated as 'C' category land:
Provided that where the whole or part of the
land so commanded is prescribed in the revenue record as 'Thur' or 'Kallar',
the area so described shall be multiplied by half of the irrigation intensity
ratio specified against such canal in Schedule 'A'. The figure thus arrived at
shall be treated as 'B' category land and the remaining area of such land shall
be treated as 'C' category land;
(b) where land is commanded for irrigation by
a non perennial/restricted perennial canal, the area of such land shall be
multiplied by the irrigation intensity ratio specified against each canal in
Schedule 'A'. The figure thus arrived at shall be treated as 'B' category land
and the remaining area of such land shall be treated as 'C' category land;
Provided that the extent of land described in
the revenue record as 'Thur' or 'Kallar' shall be excluded from the commanded
area for the purpose of calculations and shall be treated as 'C' category land;
(c) where land is commanded for irrigation by
a Government tubewell, the area of such land shall be 1204 multiplied by half
of the irrigation intensity ratio specified against Government tubewell in
Schedule 'A'. The figure thus arrived at shall be treated as 'A' category land
and the remaining area of such land shall be treated as 'C' category land;
(d) where irrigation by canal water or
Government tubewell is supplemented by water drawn from privately owned tubewell,
pumping set, well or other sources, the area treated as 'AA' category land in
accordance with the provisions of sub-rule (3) or sub-rule (4) shall be added
to the land determined under the aforesaid clause (a), clause (b) or clause
(c), as the case may be." (1. Substituted by Notification No. GSR 222/H.A.
26/72/S. 31 Amd. (4)/76 dt. 15-10-76).
Counsel for the appellants at the outset
urged that effective ceiling was made by Rules 5(1) and 5(2) and not by s. 4 of
the Act inasmuch as the basis of evaluation to be made for determining the
permissible area was provided for by Rules and not by the Section and since the
fixation of the extent of the permissible area was essentially a legislative
function it could not be delegated to the executive and this was a clear
instance of delegation of the essential legislative function and hence the
enactment was liable to be struck down. It is impossible to accept this
contention for the simple reason that fixation of the extent of permissible
area has been actually done by s. 4(1) itself inasmuch as the said provision
apart from dividing land into three categories prescribes and fixes the extent
of permissible area in respect of each of the three categories, the extent
being mentioned against each and it is merely the basis of evaluation to be
made for determining the permissible area that is left for being prescribed by
Rules.
The contention is, therefore, devoid of any
substance.
It was next contended by him that Rule
5(2)(a) goes beyond s. 4(1) of the Act inasmuch as by its application it
produces the effect of reducing the permissible area of a person from 21.8
hectares (=54 acres) to only 13.88 hectares (=34 acres) as would be clear from
illustration No. 1 given under Rule 5(2) (a) and as such the Rule is ultra
vires s. 4(1). He also urged that 'prescribed manner' was to be found both in
Rule 5(1) and 5(2) but in its working Rule 5(2) does the reverse of what Rule
5(1) lays down. In our view these contentions proceed on a misconception of the
functional role of these Rules and a misunderstanding regarding the correct
import of the first illustration given under Rule 5(2)(a).
At the outset we may say that it is fairly
clear that the three categories into which s.4(1) divides land for
determination of permissible 1205 area are mutually exclusive and ordinarily if
a land-holder is able to establish that the land held by him exclusively falls
within one or the other category his permissible area would get straightaway
determined by the extent specified in the section against each category and it
is only when a land-holder has lands of more than one category that his
permissible area shall have to be determined on the basis of evaluation to be
made in the prescribed manner under s. 4(4) read with Rules 5(1) and 5(2). This
is made clear by the opening words of Rule 5(1), namely, "the land held by
a person shall be evaluated by converting various categories into 'C' category
land according to the following formula".
In other words, Rules 5(1) and 5(2) come into
play only when a land-holder is holding lands of various categories.
Further, it cannot be disputed that
'prescribed manner' is to be found in both the Rules, namely, Rules 5 (1) and 5
(2) and not merely in one or the other, but it is clear that the two Rules deal
with different topics and operate in different fields; whereas Rule 5(1)
indicates the inter relation between different categories of land by
prescribing the equating formula, Rule 5(2) provides for mathematical formula
for arriving at the correct figures of different categories of lands by
reference to irrigation intensity ratio specified against each of the
Government canals or tube wells mentioned in the Schedule as also in case of
lands irrigated by private tube wells and pumping sets but it is not correct to
say that while furnishing illustrations under Rule 5(2), Rule 5(1) has been
ignored; in fact, the first illustration given under Rule 5(2)(a) while
applying the mathematical formula takes into consideration the inter- relation
mentioned in Rule 5(1) and there is no question of Rule 5(2)(a) in its
application doing reverse of what Rule 5(1) lays down. Further, if the first
illustration given below Rule 5(2)(a) is carefully analysed it will be clear
there is nothing like Rule 5(2)(a) going beyond s. 4(1) of the Act as contended
and there is no question of reducing the permissible area of a person from 21.8
hectares to only 13.88 hectares as suggested. In that illustration certain
basic facts are assumed to exist, namely, the person is holding 25 hectares of
land commanded for irrigation by a perennial canal the irrigation intensity
ratio whereof is 57% and on these facts the illustration works out his
permissible area. First by applying the mathematical formula given in Rule
5(2)(a) the extent of 'A category land' is computed at 7.12 hectares.
(Incidentally the very fact that 25 hectares of land commanded for irrigation
by a perennial canal having the irrigation intensity ratio of 57% can comprise
'A category land' upto 7.12 hectares negatives the other contention of counsel
for the appellants that to have 'A category land' the canal must have intensity
ratio of 200% per annum or to have 'B category land' the canal must have
intensity ratio of 100% per annum or that any land irrigated by a canal having
1206 less than 100% per annum intensity ratio must be categorised as 'C
category land'.) Therefore, after deducting 7.12 hectares as 'A category land'
out of 25 hectares, the balance 17.88 hectares is said to be 'C category land'.
Then by applying the equating formula in Rule 5(1) his entire holding of 25
hectares is converted into notional 'C category land' (7.12X3 would give 21.36
to which 17.88 is added) which comes to 39.24. But in reality he holds only 25
hectares. Therefore, by applying the rule of three his permissible area in 'C
category land' would be 13.88 hectares and the balance of 11.12 hectares is
declared to be surplus. There is no reduction of 'C category land' from
21.8 hectares to 13.88 hectares as contended,
for if out of 25 hectares 21.8 hectares were to be allowed to the land- holder
as 'C' category land by invoking Sec. 4 (1) or only Rule 5 (1) that will be
ignoring the fact that out of his total holding an area to the extent of 7.12
hectares has the potential of 'A' category land and, therefore, giving him 21.8
hectares as 'C' category land would be clearly wrong.
In our view, therefore, there is no substance
in any of the challenges made to Rule 5(2) of the Haryana Ceiling on Land
Holdings Rules, 1973.
Counsel for the appellants feebly argued that
the compensation payable in respect of the surplus land that is acquired or
gets vested in the State Government as specified in s. 16 is illusory. We find
that the amount payable for such surplus land that vests in the State
Government is to be calculated at the rates shown in the Table given below s. 16(1)
and it is clear that the rates are based on the actual quality of the soil and
its yield and the same cannot be said to be illusory. In any case no materials
have been placed before us from which we could infer that the rates shown in
the Table lead to illusory compensation.
The next provision challenged as
unconstitutional is the one contained in s. 18(7) imposing a condition of
making a deposit of a sum equal to 30 times the land holdings tax payable in
respect of the disputed area before any appeal or revision is entertained by
the appellate or revisional authority-a provision inserted in the Act by
Amending Act 40 of 1976. Section 18(1) and (2) provide for an appeal, review
and revision of the orders of the prescribed authority and the position was
that prior to 1976 there was no fetter placed on the appellate/revisional
remedy by the statute.
However, by the amendments made by Haryana
Act No. 40 of 1976, sub-ss. (7) and (8) were added and the newly inserted
sub-s. (7) for the first time imposed a condition that all appeals under sub-s.
(1) or sub-s. (2) and revisions under sub-s. (4) Would be entertained only on
the appellant or the petitioner depositing with the appellate or the revisional
authority a sum equal to 30 times the land holdings tax payable in respect of
the 1207 disputed surplus area. Under sub-s. (8) it was provided that if the
appellant or the petitioner coming against the order declaring the land surplus
failed in his appeal or revision, he shall be liable to pay for the period he
has at any time been in possession of the land declared surplus to which he was
not entitled under the law, a licence fee equal to 30 times the land holdings
tax recoverable in respect of this area. On 6th June, 1978, the Act was further
amended by Amending Act 18 of 1978 whereby the rigour of the condition imposed
under sub-s. (7) was reduced by permitting the appellant or the petitioner to
furnish a bank guarantee for the requisite amount as an alternative to making
cash deposit and while retaining sub-s. (8) in its original form, a new sub-s.
(9) inserted under which it has been provided that if the appeal or revision
succeeds, the amount deposited or the bank guarantee furnished shall be refunded
or released, as the case may be but if the appeal or revision fails the deposit
or the guarantee shall be adjusted against the licence fee recoverable under
sub-s.
(8). In the High Court, two contentions were
urged: first, that s. 18(1) and (2), as originally enacted in 1972, gave an
unrestricted and unconditional right of appeal and revision against the orders
of the prescribed authority or the appellate authority but by inserting sub-ss.
(7) and (8) by Act 40 of 1976, a fetter was put on this unrestricted right
which was unconstitutional; secondly, even the mellowing down of the condition
by Act 18 of 1978 did not have the effect of removing the vice of
unconstitutionality, inasmuch as even the conditions imposed under the amended
sub-s. (7) were so onerous in nature that they either virtually took away the
vested right of appeal or in any event rendered it illusory. Both these
contentions were rejected by the High Court and in our view rightly.
It is well settled by several decisions of
this Court that the right of appeal is a creature of a statute and there is no
reason why the legislature while granting the right cannot impose conditions
for the exercise of such right so long as the conditions are not so onerous as
to amount to unreasonable restrictions rendering the right almost illusory
(vide the latest decision in Anant Mills Ltd. v. State of Gujarat(1) Counsel
for the appellants, however, urged that the conditions imposed should be
regarded as unreasonably onerous especially when no discretion has been left
with the appellate or revisional authority to relax or waive the condition or
grant exemption in respect thereof in fit and proper cases and, therefore, the
fetter imposed must be regarded as unconstitutional and struck down. It is not
possible to accept this contention for more than one reason. In the first
place, the object of imposing the condition is obviously to prevent frivolous
appeals and 1208 revision that impede the implementation of the ceiling policy;
secondly, having regard to sub-ss. (8) and (9) it is clear that the cash
deposit or bank guarantee is not by way of any exaction but in the nature of
securing mesne profits from the person who is ultimately found to be in
unlawful possession of the land; thirdly, the deposit or the guarantee is
co-related to the land holdings tax (30 times the tax) which, we are informed,
varies in the State of Haryana around a paltry amount of Rs. 8/- per acre
annually;
fourthly, the deposit to be made or bank
guarantee to be furnished is confined to the land holdings tax payable in
respect of the disputed area i.e. the area or part thereof which is declared
surplus after leaving the permissible area to the appellant or petitioner.
Having regard to these aspects, particularly the meagre rate of the annual land
tax payable, the fetter imposed on the right of appeal/revision, even in the
absence of a provision conferring discretion on the appellate/revisional
authority to relax or waive the condition, cannot be regarded as onerous or
unreasonable.
The challenge to s. 18(7) must, therefore,
fail.
It may be stated that relying on Kunjukutty
Sahib's(1) case counsel for the appellants also challenged s. 8(3) of the Act
on the ground that it violates the second proviso to Art. 31-A. The Act
including said provision having been included in the Ninth Schedule will
receive the protection of Art. 31-B and since the challenge to the
constitutional validity of Art. 31-B is being separately dealt with it is
unnecessary to deal with the contention here.
In the result all the Civil Appeals, Writ
Petitions and Petitions for Special Leave are dimissed. There will be no order
as to costs.
S.R. Appeals and Petitions dismissed.
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