Ambika Prasad Mishra Vs. State of U.P.
& Ors [1980] INSC 126 (9 May 1980)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N.
TULZAPURKAR, V.D.
SEN, A.P. (J)
CITATION: 1980 AIR 1762 1980 SCR (3)1159 1980
SCC (3) 719
CITATOR INFO:
R 1981 SC 271 (66) F 1988 SC1194 (9) RF 1990
SC1480 (52) RF 1990 SC1789 (96)
ACT:
Uttar Pradesh Imposition of Ceiling on Land
Holdings Act, 1960-Constitutional Validity-Value of stare decisis- vis-a-vis
judicial review.
HEADNOTE:
Dismissing the appeals and the Writ
Petitions, the Court
HELD: (1).-It is fundamental that the
nation's Constitution is not kept in constant uncertainty by judicial review
every season because it paralyses, by perennial suspense, all legislative and
administrative action on vital issues deterred by the brooding interest of
forensic blow- up. This, if permitted, may well be a kind of judicial
destabilisation of State action too dangerous to be indulged in save where
national crisis of great moment to the life, liberty and safety of this country
and its millions are at stake, or the basic direction of the nation itself is
in peril of a shake up. The decision in Kesavananda Bharati's case, therefore,
upholding the vires of Article 31A in unequivocal terms binds the court on the
simple score of stare decisis and the constitutional ground of Article 141.
Further, fatal flaws silenced by earlier
rulings cannot survive after death because a decision does not lose its
authority "merely because it was badly argued, inadequately considered and
fallaciously reasoned". And none of these misfortunes can be imputed to
Bharati's case. [1164 C-G, 1165 C-D] (2). The sweep of Article 31A is wide and
indubitably embraces legislation on land ceilings. Equitable distribution of
lands, annihilation of monopoly of ownership by imposition of ceiling and
regeneration of the rural economy by diverse planning and strategies are
covered by the armour of Article 31A. Article 31A repulses, therefore, all
invasions on ceiling legislation armed with Articles 14, 19 and 31. [1165 D-E,
1166 D-E] Ranjit Singh and ors. v. State of Punjab and Ors.
[1965] 1 S.C.R. 82, State of Kerala and Anr.
v. The Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. etc. [1974] 1 S.C.R.
671, reiterated.
(3). The decision in Maneka Gandhi's case is
no universal nostrum or cure all. Nor can it be applicable to the land reform
law which is in another domain of constitutional jurisprudence and quite apart
from personal liberty in Article 21. To contend that land reform law, if unreasonable
violates Article 21 as expansively construed in Maneka Gandhi case is
incorrect. [1168 E-G] (4). Section 5(6) d the U.P. Imposition of Ceiling on
Land Holdings Act, 1960 is fair, valid and not violative of Article 19(1)(f) of
the Constitution. There is no blanket ban by it but only qualified invalidation
of certain sinister assignments etc. There is nothing in this section which is
morally wrong nor is such an embargo which comes into force only on a well
recognised date not from an arbitrarily retrospective past constitutionally
anathematic.
Article 19(1)(f) is not absolute in operation
and is subject, under Article 19(6), to 1160 reasonable restrictions such as
the one contained in Section 5(6). Further it is perfectly open to the
legislature as ancillary to its main policy to prevent activities which defeat
the statutory purpose, to provide for invalidation of such action. When the
alienations are invalidated because they are made after a statutory date fixed
with a purpose, there is sense in this prohibition. Otherwise, all the lands
would have been transferred and little would have been left by way of surplus.
[1169 A-B, D, F-G, 1170 C, E-F] (5). Articles 14 and 15 and the humane spirit
of the Preamble rebel against the defacto denial of proprietory personhood or
womanhood. But this legal sentiment and jural value must not run riot and
destroy the provisions which do not discriminate between man and woman qua man
and woman but merely organise a scheme where life realism is legislatively
pragmatised. Such a scheme may marginally affect gender justice but does not
abridge, wee-bit, the rights of women.
If land-holding and ceiling thereon are
organised with the paramount purpose of maximizing surpluses without maiming
women's ownership, any plea of sex discrimination as a means to sabotage what
is socially desirable measure cannot be permitted.. [1173 D-F] From a reading
of Section 3(7) read with Section S(3) it is clear that no woman's property is
taken away any more than a man's property. Section 5(3) does not confer any
property on an adult son nor withdraw any property from adult daughter. Legal
injury can arise only if the daughter's property is taken away while the son's
is retained or the daughter gets no share while the son gets one. The legislation
has not done either. [1171 G, 1173 F, H, 1174 C-D] (6). Section 3(17) of the
Act is not discriminatory Land does not offend Articles 14 & 15 of the
Constitution.
True, Section 3(17) makes the husband a
tenure holder even when the wife is the owner. This is a legislative device for
simplifying dealings and cannot therefore be faulted. [1174 E, F-G] (7).
Neither ceiling proceedings abate nor taking surplus land from the tenure
holder is barred under the provisions of Section 4 of the U.P. Consolidation of
Holdings Act, 1953 read with Section 5(2) of the Ceiling Act. [1177 C] The
whole scheme of consolidation of holdings is to restructure agrarian landscape
of U.P. so as to promote better farming and economic holdings by 'eliminating
fragmentation and organising consolidating. No one is deprived of his land.
What happens is, his scattered bits are taken away and in lieu thereof a
continuous conglomeration equal in value is allotted subject to minimal
deduction for community use and better enjoyment. Whatever land belongs to the
tenure holder at the time when consolidation proceedings are in an on-going
stage, may or may not belong to him after the consolidation proceedings are
completed. Alternative allotments may be made and so the choice that he may make
before the prescribed authority for the purpose of surrendering surplus lands
and preserving 'permissible holding' may have only tentative value. But this
factor does not seriously prejudice the holder. While he chooses the best at
the given time the Consolidation Officer will give him its equivalent when a
new plot is given to him in the place of the old. There is no diminution in the
quantum of land and quality of land since the object of consolidation is not
deprivation but mere substituting of scattered pieces with a consolidated plot.
The tenure holder may well exercise his option before the prescribed officer
and if, later, the Consolidation Officer takes away there lands, he will allot
a real equivalent thereof to the tenure holder elsewhere. There is no reduction
or damage or other prejudice by this process of statutory exchange. [1177 C-G]
1161 When land is contributed for public purposes compensation is paid in that
behalf, and in the event of illegal or unjust orders passed, appellate and revisory
remedies are also provided. On such exchange or transfer taking place, pursuant
to the finalisation of the consolidation scheme, the holding, upto the ceiling
available to the tenure-holder, will be converted into the new allotment under
the consolidation scheme. Thus there is no basic injustice nor gross
arbitrariness in the continuance of the land reforms proceedings even when
consolidation proceedings are under way. [1178 B-D] Agricultural &
Industrial Syndicate Ltd. v. State of U.P. and Ors., [1974] 1 S.C.R. 253,
distinguished.
Khetarpal Singh v. State of U.P. (High Court)
[1975] Recent Decisions p. 366, approved.
8. There is no time-wise arbitrariness
vitiating the statute in that various provisions in the Act were brought into
force on random dates without any rhyme or reason, thus violating, from the
temporally angle, Article 14. It is true that neither the legislature nor the
Government as its delegate can fix fanciful dates for effectuation of
provisions affecting the rights of citizens. Even so, a larger latitude is
allowed to the State to notify the date on which a particular provision may
come into effect. Many imponderables may weigh with the State in choosing the
date and when challenge is made years later, the factors which induced the choice
of such dates may be buried under the debris of time. Parties cannot take
advantage of this handicap and audaciously challenge every date of coming into
force of every provision as capriciously picked out. [1179 B-D]
ORIGINAL JURISDICTION: Writ Petition No. 1543
of 1977.
Under Article 32 of the Constitution of
India.
WITH W.P. No. 1542/77 and C.A. No. 1379/77,
W.P. No. 838/78.
2360-2363/78 and S.L.P. (C) Nos. 1727/79
& 2333 & 2530 of 1978 AND S.L.P. (C) No. 2539 of 1978 and W.P. No. 228
of 1979.
M.S. Gupta for the petitioners in WPs. 1542,
1543, 838 & CA 1379/77.
Arvind Kumar, Mrs. Lakshmi Arvind &
Prakash Gupta for the petitioners in SLPs. 1727, 2333 & 2530.
P.R. Mridul, R.K. Jain & Sukumar Sahu for
the petitioners in WPs 2360-63.
Veda Vyasa, S.K. Gupta & A.K. Sharma for
the petitioners in SLP 2599 and WP 228.
B.P. Singh Chauhan, Addl Adv. Genl. U.P. and
O.P. Rana the appearing respondents.
1162 The Judgment of the Court was delivered
by KRISHNA, IYER, J.-This judgment deals with a flood of cases from Uttar
Pradesh relating to limitation on agricultural land holdings and specifically
disposes of the writ petitions, civil appeals and petitions for special leave
listed below.
The pervasive theme of this litigative stream
is not anti-land-reform as such but the discriminatory laws in the relevant
legislation which make it 'unlaw' from the constitutional angle.
The march of the Indian nation to the
Promised Land of Social Justice is conditioned by the pace of the process of
agrarian reform. This central fact of our country's progress has made land
distribution and its inalienable ally, the ceiling on land holding, the
cynosure of legislative attention. And when litigative confrontation with large
holders has imperilled the implementation of this vital developmental strategy,
Parliament, in exercise of its constituent power, has sought to pre-empt
effectively and protect impregnably such statutory measures by enacting Art.
31A as the very first amendment in the very
first year after the Constitution came into force. Consequent on the
Constitution (First Amendment) Act, 1951, this court repelled the challenges to
land reform laws as violative of fundamental rights in State of Bihar v.
Kameshwar Singh but the constant struggle between agrarian reform legislation
and never-say-die litigation has led to a situation where every such enactment
has been inevitably accompanied by countless writ petitions assailing its vires
despite Art.
31A, not to speak of the more extensive
Chinese walls like Arts. 31B, 31C and 31D. The forensic landscape is cluttered
up in this court with appeals and writ petitions and petitions for leave to
appeal, the common feature of each of which is a challenge to the validity of
one or other of the State laws imposing ceiling on land holding in an
inegalitarian milieu of the landed few and the landless many. Of course, the
court is bound to judge the attack. On the legislative projects for acquisition
and distribution, on their constitutional merits and we proceed to as say the
task with special reference to the Uttar Pradesh Imposition of Ceiling on Land
Holdings Act, 1960 (abbreviated hereafter as the Act). Several counsel have
argued and plural objections have been urged but we will grapple with only
those contentions which have been seriously pressed and omit others which have
either been only formally mentioned or left to lie in silent 1163 peace, or but
feebly articulated. In this judgment, we side- step the bigger issue of the
vires of the constitutional amendments in Articles 31 A, 31 and 31 as they are
dealt with in other cases disposed of recently. Indeed, the history of land
reform, in its legislative dimension has been a perennial race between judicial
pronouncements and constitutional amendments.
The anatomy of the Act must be scanned as a
preliminary exercise so that the Constitutional infirmities alleged may be
appreciated in the proper setting. The long title gives the primary purpose of
the Act as imposition of ceilings on land holdings in Uttar Pradesh and the
Preamble amplifies it further. All this is tersely spelt out in the Statement
of objects and Reasons which runs thus:- "With a view to provide for more
equitable distribution of land by making the same available to the extent
possible to landless agricultural labourers and to provide for cultivation on
cooperative basis and to conserve part of the available resources in land so as
to increase the production and up reserve stock of foodgrains against lean
years by carrying on cultivation on scientific lines in State-owned farms, it
is expedient to impose Ceiling on existing large land holdings. It is necessary
to provide some land to the village communities for their common needs, such as
establishment of fuel and fodder reserves. The Bill is therefore being
introduced to promote the economic interest of the weaker section of community
and to subserve the common good." Thus we get the statutory perspective of
agrarian reform and so, the constitutionality of the Act has to be tested on
the touchstone of Art 31A which is the relevant protective armour for land
reform laws. Even here, we must state that while we do refer to the range of
constitutional immunity Art. 31A confers on agrarian reform measures we do not
rest our decision on that provision. Independently of Art. 31A, the impugned
legislation can withstand constitutional invasion and so the further challenge
to Art.
31A itself is of no consequence. The
comprehensive vocabulary of that purposeful provision obviously catches within
its protective net the present Act and, broadly speaking, the antiseptic effect
of that Article is sufficient to immunise the Act against invalidation to the
extent stated therein. The extreme argument that Art. 31A itself is void as
violative of the basic structure of the Constitution has been negatived by my
learned brother, Bhagwati, J. in a kindred group of cases of Andhra Pradesh.
The amulet of Art. 31A is, therefore, potent,
so far as it goes, but beyond its ambit it is still possible, as counsel have
endeavoured, to 1164 spin out some sound argument to nullify one section or the
other. Surely, the legislature cannot run amok in the blind belief that Art.
31A is omnipotent. We will examine the alleged infirmities in due course. It is
significant that even apart from the many decisions upholding Art. 31A, Golak
Nath's case decided by a Bench of 11 Judges, while holding that the
Constitution (First Amendment) Act exceeded the constituent power still
categorically declared that the said amendment and a few other like amendments
would be held good based on the doctrine of prospective over-ruling. The
result, for our purpose, is that even Golak Nath's case has held Art. 31A
valid. The note struck by later cases reversing Golaknath does not militate
against the vires of Art. 31A. Suffice it to say that in the Kesavananda
Bharati's case. Article 31A was challenged as beyond the amendatory power of
Parliament and, therefore, invalid. But, after listening to the marathon
erudition from eminent counsel, a 13 Judges Bench of this Court upheld the vires
of Article 31A in unequivocal terms. That decision binds, on the simple score
of stare decisis and the constitutional ground of Art. 141. Every now discovery
or argumentative novelty cannot undo or compel reconsideration of a binding
precedent. In this view, other submissions sparkling with creative ingenuity
and presented with high-pressure advocacy, cannot persuade us to re-open, what
was laid down for the guidance of the nation as a solemn pre-posion by the epic
Fundamental Rights case. From Kameshwar Singh and Golak Nath (supra) through
Kesavananda (supra) and Kanan Devan to Gwalior Rayons and after Art. 31A has
stood judicial scrutiny although, as stated earlier, we do not base the
conclusion on Art. 31A. Even so, it is fundamental that the nation's Constitution
is not kept in constant uncertainty by judicial review every season because it
paralyses, by perennial suspense, all legislative and administrative action on
vital issues deterred by the brooding threat of forensic blowup. This, if
permitted, may well be a kind of judicial destabilisation of State action too
dangerous to be indulged in save where national. crisis of great moment to the
life, liberty and safety of this country and its millions are at stake, or the
basic direction of the nation itself is in peril of a shakeup. It is surely
wrong to prove Justice Roberts of the United States Supreme Court right when he
said.
1165 "The reason for my concern is that
the instant decision, overruling that announced about nine years ago, tends to
bring adjudications of this tribunal into the same class as a restricted
railroad ticket good for this day and train only.. It is regrettable that in an
era marked by doubt and confusion, an era whose greatest need is steadfastness
of thought and purpose, this Court which has been looked to as exhibiting
consistency in adjudication, and a steadiness which would hold the balance even
in the face of temporary ebbs and flows of opinion. should now itself become
the breeder of fresh doubt and confusion in the public mind as to the stability
of our institutions".
It is wise to remember that fatal flaws
silenced by earlier rulings cannot survive after death because a decision does
not lose its authority "merely because it was badly argued, inadequately
considered and fallaciously reasoned". And none of these misfortunes can
be imputed to Bharati's case (supra). For these reasons, we proceed to consider
the contentions of counsel on the clear assumption that Art. 31A is good. Its
sweep is wide and indubitably embraces legislation on land ceilings. Long years
ago, in Ranjit v. State, a Constitution Bench, speaking through Hidayatullah,
J., dwelt on the wide amplitude of Art. 31A, referred to Precedents of this
Court on agrarian reform vis a vis Art. 31A and concluded that equitable
distribution of lands, annihilation of monopoly of ownership by imposition of
ceiling and regeneration of the rural economy by diverse planning and
strategies are covered by the armour of Art.
31A. We may quote a part:
The scheme of rural development today
envisages not only equitable distribution of land so that there is no undue
imbalance in society resulting in a landless class on the one hand and a
concentration of land in the hands of a few on the other, but envisages also
the raising of economic standards and bettering rural health and social
conditions. Provisions for the assignment of lands to village Panchayat for the
use of the general community, or for hospitals, schools, manure pits, tanning
grounds etc. which (sic) enure for the benefit of rural population must be
considered to be an essential part of the redistribution of holdings and open
lands to which no objection is apparently taken. If agrarian reforms are to
succeed, more distribu- 1166 tion of lands to the landless is not enough. There
must be a proper planning of rural economy and conditions and a body like the
village panchayat is best designed to promote rural welfare than individual
owners of small portions of lands. Further the village panchayat is an
authority for purposes of part III as was conceded before us and it has the
protection of Art.
31A because of this character even if the
taking over of Shamlat deb amounts to acquisition. ...... The setting of a body
or agricultural artisans (such as the village carpenter, the village
blacksmith, the village tanner, ferrier, wheelwright, barber, washerman etc.)
is a part of rural planning and can be comprehended in a scheme of agrarian
reforms. It is a trite saying that India lives in villages and a scheme to make
villages self-sufficient cannot but be regarded as part of the larger reforms
which consolidation of holdings, fixing of ceiling on lands, distribution of
surplus lands and utilising of vacant and waste lands contemplate.
This review has been reinforced by the later
pronouncement of a Constitution Bench in the Gwalior Rayon Case, emphatically
expressing support for the conceptual sweep of agrarian reform vis-a-vis Art.
31A. the proposition, therefore, is invulnerable that Art. 31A repulses all
invasion on "ceiling legislation" (armed with Arts. 14, 19 and 31).
The professed goal of the legislation is to
maximise surplus lands for working out distributive justice and rural
development, with special reference to giving full opportunity to the agrarian
masses to become a major rural resource of the nation. How to maximise surplus
land ? By imposition of severe ceiling on ownership of land holdings
consistently with the pragmatics of rural economies and the people's way of
life. The pervasive, pivotal concepts are, therefore, ceilings on holdings and
surrender of surplus land. The working unit with reference to which the legal
ceiling is set is the realistic family. So, the flexible concept of 'family'
also becomes a central object of legislative definition. Having regard to the
diversity of family units among the various communities making up Indian
society and having the object of the legislation as the guiding principle, the
statute under consideration has given a viable and realistic definition of
'family', with provision for some variables and special situations. The
machinery for implementing the statute is also set up with adjudicative powers,
including appeals. Compensation, with- 1167 out invidious discrimination, has
to be paid, according to the scheme, when surplus land is taken away and for
the determination and payment of such compensation a whole chapter is devoted.
The disposal of land secured as surplus is, perhaps, the elimination of the
legislative project. and so, Chapter 4 stipulates the manner of disposal and
settlement of surplus land. Thus, we have the definitional provision in Chapter
1, followed by imposition of "ceilings" with ancillary provisions for
exemption. The judicial machinery for enforcement and the provisions for
pre-emption of manipulation and prevention of fraud on the statute, the
assessment of compensation and its payment and the like have also been enacted
in Chapters 2 and 3. A miscellaneous chapter deals with a variety of factors,
including offences and penalties, mode of hearing and appellate powers and
kindred matters. Inevitably, such a progressive legislation runs drastically
contrary to the feudal ethos of the landed gentry and the investment intancts
of the nouveau riche and green revolutionists. Therefore, the holders who are hurt
by the provisions of the Act have chosen to challenge their vires and they must
succeed if the ground is good. Since the legislature has plenary power to tile
extent conferred by the Constitution, the attack has to be based, and, deed has
been on constitutional infirmities which If sound, must shoot down the Act. By
way of aside, one might query whether agrarian reform, with all the fanfare and
trumpet, has seriously taken off the ground or is still in the hangar? Anyway,
the court can only pronounce, the Executive must execute.
We will now proceed to formulate the points
which, according to counsel, are fatal to the legislation and proceed to scan
them in due course.
Various miniscule matters have been raised in
the plethora of cases largely founded on some real or fancied inequity,
inequality, legislative arbitrariness or sense of injustice. Speaking generally
and with a view to set the record straight, injustice is conditioned by the
governing social philosophy, the prevailing economic approach and, paramountly,
by the constitutional parameters which bind the court and the community.
The Indian Constitution is a radical
document, a charter or socio-politico-economic change and geared to goals spelt
out in the objectives Resolution which commits the nation to a drive towards an
egalitarian society, a note struck more articulately by the adjective
'socialist' to our Republic introduced by a recent Amendment and survives after
Parliament, differently composed, had altered the 42nd Amendment. This backdrop
suggests that agrarian legislation, organised as egalitarian therapy, must be
judged, not meticulously for every indi- 1168 vidual injury but by the larger
standards of abolition of fundamental in equalities, frustration of basis
social fairness and shocking unconscionableness. This process involves
detriment to vested interests. The perfect art of plucking the goose with the
least squealing is not a human gift. A social surgery, supervised by law,
minimises, not eliminates, individual hurt while promoting community welfare.
The court, in its interpretative role, can neither be pachydermic nor
hyperreactive when landholders, here and there lament about lost land. We will
examine the contentions form this perspective, without reference to Arts. 31B,
C and D. Justice Cardozo has a message for us when he says:
Law and obedience to law are facts confirmed
everyday to us all in our experience of life. If the result of a definition is
to make them seem to be illusions, so much the worse for the definition; we must
enlarge it till it is broad enough to answer to realities.
Shri Mridul, who led the arguments, mounted a
three- point attack. Article 31A(1) (ii) was the target of an obscure
submission which counsel, with characteristic fairness, did not press at a later
stage. Linked up with it was queer nexus between Art. 21 and. the right to
property, deprivation of which was contended to be an unreasonable procedure
somehow falling within the lethal spell of Art.
Proprietary personality was integral to
personal liberty and a may hem inflicted on a man's property was an amputation
of his personal liberty. Therefore, land reform law, if unreasonable, violates
Art. 21 as expansively construed in Maneka Gandhi. The dichotomy between
personal liberty, in Art. 21, and proprietary status, in Arts. 31 and 19 is
plain, whatever philosophical justification or pragmatic realisation it may
possess in political or juristic theory. Maybe, a penniless proletarian, is
unfree in his movements and has nothing to lose except his chains.
But we are in another domain of
constitutional the jurisprudence. Of course, counsel's resort to Art. 21 is
prompted by the absence of mention of Art. 21 in Art. 31A and the illusory hope
of inflating. Maneka Gandhi to impart a healing touch to those whose property
is taken by feigning loss of personal liberty when the State takes only
property.
Maneka Gandhi is no universal nostrum or
cure-all, when all other arguments fail! The last point which had a quaint
moral flavour was that transfers of landed property, although executed after
the dates specified in the 1169 Act were unreasonably invalidated by the Act
even when there was no "mens rea" vis a vis the ceiling law on the
part of the transferor and this was violative of Art. 19(1) (f) and of Art. 14
as arbitrary. A facet of over-inclusiveness which breaches Art. 14 was also
urged. It is perfectly open to the legislature, as ancillary to its main policy
to prevent activities which defeat the statutory purpose, to provide for
invalidation of such actions. When the alienations are invalidated because they
are made after a statutory date fixed with a purpose, there is sense in this
prohibition.
Otherwise, all the lands would have been
transferred and little would have been left by way of surplus. Let us read the
text of s.5(6) which is alleged to be bad being over- inclusive or otherwise
anomalous. The argument, rather hard to follow and too subtle for the pragmatic
of agrarian law, may be clearer when the provision is unfurled. Section 5(6)
runs thus:
In determining the ceiling area applicable to
a tenure holder, any transfer of land made after the twenty-fourth day of
January, 1971, which but for the transfer would have been declared surplus land
under this Act, shall be ignored and not taken into account .
Provided that nothing in this sub-section
shall apply to:
(a) a transfer in favour of any
person(including Government) referred to in sub-section(2);
(b) a transfer proved to the satisfaction of
the prescribed authority to be in good faith and for adequate consideration and
under an irrevocable instrument riot being a benami transaction or for
immediate or deferred benefit of the tenure-holder or other members of the
family.
There is no blanket ban here but only
qualified invalidation of certain sinister assignments etc. Counsel weaves
gossamer webs which break on mere judicial touch when he argues that transfer
'in good faith and for adequate consideration' have been unconstitutionally
exempted. The bizarre submission is that 'adequate consideration' is an
arbitrary test. We reject it without mere discussion. The second limb of the
submission is that while s. (6) directs the authority to ignore certain
transfers it does not void it. The further spin-off adroitly presented by
counsel is that the provision violates the second proviso to Art. 31.
It is a little too baffling to follow and we
dismiss the submission as hollow. The provision in s.5(6), when read in the
light of the Provisos, is fair and valid.
1170 Counsel's further argument is to quote
his own words that "the impugned provisions do not establish a reasonable
procedure" because:
"The expression 'in good faith' is
over-inclusive and takes within its sweep situations which are not only very
different but which may not have any nexus or legitimate relationship with the
objects and purposes of the ceiling law .. " We are hardly impressed by it
and find no substance on it.
There is no question of morality or
constitutionality even if the clause may be a little over-drawn. On the
contrary, it is legislative folly not to preserve, by appropriate preventives
and enacted contraceptives, the 'surplus' reservoir of land without seepage or
spill-over.
It is legal engineering, not moral
abandonment. Indeed, the higher morality or social legitimacy of the law
requires a wise legislature to prescribe transfers, lest the surplus pool be
drained off by a rush of transactions. Maybe, individual hardship may happen,
very sad in some instances.
But every great cause claims human martyrs!
Poor consolation for the victim but yet a necessary step if the large owners
are not to play the vanishing trick or resort to manipulated alienations! After
all, this ban comes into force only on a well-recognised date, not from an
arbitrary retroactive past.
We cannot discover anything which is morally
wrong or constitutionally anathematic in such an embargo. Article 19(1) (f) is
not absolute in operation and is subject, under Art.19(6), to reasonable
restrictions such as the one contained in s.5(6). We do not think there is
merit in the triple submissions spun by Shri Mridul.
Even on the merits, the transfers have been
rightly ignored, the vendees who are the grandsons have been held to be not
bona fide transferees for adequate consideration; and the findings are of fact
and concurrent. We over-rule the grounds of grievance as unsustainable. In sum,
without reliance on Art. 31A, Shri Mridul's contentions can be dismissed as
without merit.
We will now consider the mini-arguments of
the other counsel some of them do merit serious consideration by the court -
and even where direct relief does not flow from the judicial process, State
action to avoid anomalies may well be called for in the light of genuine
hardships.
Shri Veda Vyas, appearing in W.P. No. 228 of
1979 and SLP No. 2599 of 1978, pleaded powerfully for gender justice and sex
1171 equity because, according to his reading, the Act had a built-in masculine
bias in the definition of 'family unit' and allocation of ceiling on holdings,
and therefore, perpetrated unconstitutional discrimination. Indeed, his case
illustrated the anti-woman stance of the statute, he claimed. The submission is
simple, the inference is inevitable but the invalidation does not follow even
if Art.
31A is not pressed into service to silence Art.
14.
We will formulate the objections and examine
their merit from the constitutional perspective. Maybe, there is force in the
broad generalisation that, notwithstanding all the boasts about the legendary
glory of Indian womanhood in the days of yore and the equal status and even
martial valour of heroines in Indian history, our culture has suffered a
traumatic distortion, not merely due to feudalism and medievalism, but also due
to British imperialism.
Indeed, the Freedom. Struggle led by Mahatma
Gandhi, the story of social reforms inspired by spiritual leaders like Swami
Vivekananda and engineered by a galaxy of great Indians like Raja Rammohan Roy,
Swami Dayananda Saraswati and Maharishi Karve and the brave chapter of
participation in the Independence Movement by hundreds and thousands of woman
patriots who flung aside their unfree status and rose in revolt to overthrow
the foreign yoke, brought back to Indian womanhood its lustrous status of equal
partnership with Indian manhood when the country decided to shape its destiny
and enacted a Constitution in that behalf. Our legal culture and Corpus juris,
partly a heritage of the past, do contain strands of discrimination to set
right which a commission elaborately conducted enquiries and made a valuable
report to the Central Government. Shri Veda Vyas may be right in making
sweeping submissions only to this limited extent but when we reach the concrete
statutory situation and tackle the specific provisions in the Act, his argument
misses the mark.
A better appreciation of his contention must
be preceded by excerption of two definitions and consideration of the concepts
they embody. Section 3(7) defines 'family' thus:
'family' in relation to a tenure-holder,
means himself or herself and his wife or her husband, as the case may be (other
than a judicially separated wife or husband), minor sons and minor daughters
(other than married daughters);
This definition is incomplete without
contextually reading s. 5(3) and so we quote the provision which, in the view
of Shri Veda Vyas, enwombs the vice of discrimination against women.
Sec.5(3)(a) & (b) & Explanation:
1172 Sec. 5(3): Subject to the provisions of
sub-sections (4), (5), (6) and (7) the ceiling area for purposes of sub-
section (1) shall be (a) In the case of a tenure-holder having a family of not
more than five members, 7.30 hectares of irrigated land (including land held by
other members of his family) plus two additional hectares of irrigated land or
such additional land which together with the land held by him aggregates to two
hectares, for each of his adult sons, who are either not themselves tenure
holders or who hold less than two hectares of irrigated land, subject to a
maximum of six hectares of such additional land;
(b) in the case of a tenure-holder having
family of more than five members, 7.30 hectares of irrigated land (including
land held by other members of his family), besides, each of the members
exceeding five and for each of his adult sons who are not themselves tenure
holders or who held less than two hectares of irrigated land, two additional
hectares of irrigated land or such additional land which together with the land
held by such adult son aggregates to two hectares subject to a maximum of six
hectares of such additional land Explanation: The expression 'adult son' in
clause (a) and (b) includes an adult son who is dead and has left surviving
behind him minor sons or minor daughters (other than married daughters) who are
not themselves tenure holders or who hold land less than two hectares of
irrigated land;
The anti-female kink is patent in that the
very definition of family discloses prejudice against the weaker sex by
excluding adult daughters without providing for any addition to the ceiling on
their account. In the case of an adult son, s. 5(3) (a) of the Act provides for
the addition of two hectares of irrigated land for each of his tenure holder's)
sons where the family has a strength of less than five. Section 5(3)(b)
similarly provides for two additional hectares of irrigated land for each of
his (tenure holder's) adult sons where the strength of the family is more than
5.
It must be remembered that this addition is
on account of the fact that there are adult sons, even though they are not
tenure holders or held less than two hectares or none. This previlege of adding
to the total extent that the family of a tenure 1173 holder may keep is denied
to an adult daughter, even though unmarried, and, therefore, dependent on the
family for that a married son stands on a different footing from a married
daughter, what justice is there in baring a dependent unmarried daughter in the
cold? Assuming without admitting, Shri Veda Vyas further urges that having
regard to the Child Marriage Restraint Act, 1929 and the increasing prevalence
of unmarried adult daughters in families these days, the discrimination is not
theoretical but real because no minor girl can now marry.
Another similar invidious provision is the
definition of tenure holder. Ceiling on holdings is fixed with reference to
tenure-holders.
We wonder whether the Commission on the
Status of Women or the Central Governments or the State Governments have
considered this aspect of sex discrimination in most land reforms laws, but
undoubtedly the State should be fair especially to the weaker sex. Adult
damsels should not be left in distress by progressive legislations geared to
land reforms. This criticism may have bearing on the ethos of the community and
the attitude of the legislators, but we are concerned with the
constitutionality of the provision.
Maybe, in this age of nuclear families and
sex equal human rights it is illiberal and contrary to the zeit geist to hark
back to history's dark pages nostalgically and disguise it as the Indian way of
life with a view to deprive women of their undeniable half. Arts. 14 and 15 and
the humane spirit of the Preamble rebel against the de facto denial of
proprietary personhood of woman-hood. But this legal sentiment and jural value
must not run riot and destroy provisions which do not discriminate between man
and woman qua man and woman but merely organise a scheme where life's realism
is legislatively pragmatised. Such a scheme may marginally affect gender
justice but does not abridge, even a wee-bit, the rights of women. If
land-holding and ceiling thereon are organised with the paramount purpose of
maximising surpluses without maiming woman's ownership no submission to destroy
this measure can be permitted using sex discrimination as a means to sabotage
what is socially desirable. No woman s property is taken away any more than a
man's property.
Section 5(3) reduces daughters or wives to
the status of stooges. It forbids excessive holdings having regard to rural
realities of agricultural life. 'Family' is defined because it is taken as the
unit for holding land-a fact of extant societal life which cannot be wished
away. This is only a tool of social engineering in working out the scheme of
setting limits to ownership. Section 5(3) does not confer any property on an
adult son nor withdraw any property from an adult daughter. That provision
shows a concession to a tenure-holder who has propertyless 1174 adult sons by
allowing him to keep two more hectares per such son. The propertyless son gets
no right to a cent of land on this score but the father is permitted to keep
some more of his own for feeding this extra mouth. If an unmarried daughter has
her own land, this legislation does not deprive her any more than a similarly
situated unmarried son. Both are regarded as tenure-holders. The singular
grievance of a chronic spinster vis a vis a similar bachelor may be that the
father is allowed by s. 5(3) to hold an extra two hectares only if the
unmarried major is a son. Neither the daughter nor the son gets any land in
consequence and a normal parent will look after an unmarried daughter with an
equal eye. Legal injury can arise only if the daughter's property is taken away
while the son's is retained or the daughter gets no share while the son gets
one. The legislation has not done either. So, no tangible discrimination can be
spun out. Maybe, the legislature could have allowed the tenure-holder to keep
another two hectares of his on this basis of the existence of an unmarried
adult daughter. It may have grounds rooted in rural realities to do so. The
court may sympathize but cannot dictate that the land-holder may keep more land
because he has adult unmarried daughters. That would be judicial legislation
beyond permissible process.
The same perspicacious analysis salvages the
provision regarding a wife. True, s. 3(17) makes the husband tenure- holder
even then the wife is the owner. So long as the land is within the sanctioned
limit it is retained as before without affecting ownership or enjoyment. But
where it is in excess, the compensation for the wives land, if taken away as
surplus, is paid to her under Chapter III, And even in the choice of land, to
declare surplus, the law, in s. 12A, has taken meticulous care to protect the
wife. The husband being treated as tenure-holder even when the wife is the
owner is a legislative device for simplifying procedural dealings. When all is
said and done, married woman in our villages do need their husband's services
and speak through them in public places, except, hopefully in the secret ballot
expressing their independent political choice. Some of us may not be happy with
the masculine flavour of this law but it is difficult to hold that rights of
women are unequally treated, and so, the war for equal gender status has to be
waged elsewhere. Ideologically speaking, the legal system, true to the spirit
of the Preamble and Art. 14, must entitle the Indian women to be equal in
dignity, property and personality, with man. It is wrong if the land reforms
law denudes woman of her property. If such be the provision, it may be
unconstitutional because we cannot expect that "home is the girl's prison
and the woman's work-house" But it is not.
1175 It must be said in fairness, that- the
legislature must act on hard realities, not on glittering ideals which fail to
work. Nor can large landholders be allowed to outwit socially imperative land
distribution by putting female discrimination as a mask. There is no merit in
these submissions of Sri Veda Vyas.
In the view we have taken, we need not
discuss the soundness of the reasoning in the ruling in Sucha Singh v. State(1).
The High Court was right, if we may say so with respect, in its justification
of the section when it observed:
The subject of legislation is the person
owning or holding land and not his or her children.
Section 5 provides for the measure of
permissible are that a person with one or more adult sons will be allowed to
select out of the area owned or held by him and his children,- whether male or
female, have not been given any right to make a selection for himself or
herself. It cannot. therefore, be said that this section makes a discrimination
between a son and a daughter in respect of his or her permissible area on the
ground of sex alone. The legislature is the best Judge to decide how much area
should be left as permissible area with each owner or holder of land.
Insofar as no distinction between a male and
a female holder or owner of the land has been made in respect of the
permissible area in any given circumstances? there is no violation of Article
15 of the Constitution. This section does not provide for any succession to the
land; it only provides for the measure of the permissible area to be retained
by every holder or owner of the land out of the area held or owned by him or
her on the appointed day on the basis of the number of adult sons he or she
has. It is for the legislature to prescribe the measure of permissible area and
no exception can be taken because only adult sons have been taken into
consideration.
Shri Veda Vyas objected to the further
observations of Tuli, J.
It. is evident that distinction between an
adult son and an adult daughter has been made not only on the ground of sex but
also for the reason that a daughter has to go to another family after her
marriage in due course, marriage being a normal custom which is universally
practised. This 1176 is an institution of general prevalence which is the
foundation of organised and civilised societies and communities.
Our rapidly changing times, when women after
long domestic servitude, seek self-expression, cannot forge new legal
disabilities and call it legislative wisdom. But, without assent or dissent, we
may pass by these observations because no property right of women is taken
away, and discrimination. if any, is not inflicted on rights, but sentiments.
Shri Arvind Kumar, who followed, also made some persuasive points and seeming dents
in the legislation when read in the light of the U.P. Consolidation of Holdings
Act, 1953 (hereinafter called the Consolidation Act). In general terms, the
submission turned on the operation of the law relating to consolation of
holdings.
It is a great pity that a benign agrarian
concept- abolition of fragmentation and promotion of consolidation of
agricultural holdings- has proved in practice to be a litigative treachery and
opened up other vices. The provision for appeals and revisions and the inevitable
temptation of the vanquished to invoke Art. 226 and Art. 136 of the
Constitution has paved the protracted way for improvident lay-out on
speculative litigation. More farmers are cultivating litigation than land,
thanks to the multi- docket procedure in the concerned law. Even so, we see no
force in counsel's contention which we may now state.
The thrust of his argument, omitting
subsidiary submissions which we will take up presently, is that so long as
consolidation proceedings under the sister statute (U.P.
Consolidation of Holdings Act, 1953) are
under way, two consequences follow. Firstly, all other legal proceedings
including the ceiling proceedings must abate. A notification under s. 4 of the
Consolidation Act has been issued in regard to many areas in the State.
Consolidation has been completed in most places but is still pending in some
places. Counsel's argument is that once a notification under s.4 has been
issued, s. 5(2)(a) operates. This latter provision states that every proceeding
for the correction of records and every suit and proceeding in respect of
declaration of rights or interest in any land laying in the area, or, for
declaration or ad judication of any other right in regard to which proceedings
can or ought to be taken under this Act, pending before any court or authority
whether of the first instance or of appeal, reference of revision, shall, on an
order being passed in that 1177 behalf by the court or authority before whom
such suit or proceeding is pending, stand abated;
Provided that no such order shall be passed
without giving to the parties notice by post or in any other manner and after
giving them an opportunity of being heard:
Provided further that on the issue of a
notification under sub-section (1) of Section 6 in respect of the said area or
part thereof, every such order in relation to the land lying in such area or
part as the case may be, shall stand vacated;
Thus the ceiling proceeding has abated and
surplus land cannot be taken from him. This plea has only meretritious
attraction and superficial plausibility as we will presently see.
The whole scheme of consolidation of holding
is to restructure agrarian landscape of U.P. so as to promote better farming
and economic holdings by eliminating fragmentation and organising
consolidation. No one is deprived of his land. What happens is, his scattered
bits are taken away and in lieu thereof a continuous conglomeration equal in
value is allotted subject to minimal deduction for community use and better
enjoyment. Once this central idea is grasped, the grievance voiced by the
petitioner becomes chimerical. Counsel complains that the tenure-holder will
not be able to choose his land when consolidation proceedings are in an
on-going stage. True, , whatever land belongs to him at that time, may or may
not belong to him after the consolidation proceedings are completed.
Alternative allotments may be made and so the choice that he may make before
the prescribed authority for the purpose of surrendering surplus lands and
preserving 'permissible holding' may have only tentative value. But this factor
does not seriously prejudice the holder. While he chooses the best at the given
time the Consolidation officer will give him its equivalent when a new plot is
given to him in the place of the old. where is no diminution in the quantum of
land and quality of land since the object of consolidation is not deprivation
but mere substitution of scattered pieces with a consolidated plot. The
tenure-holder may well exercise his option before the prescribed officer and
if, later, the Consolidation officer takes away these lands, he will allot a
real equivalent thereof to the tenure-holder elsewhere. There is no reduction
or damage or other prejudice by this process of statutory exchange.
Chapter III of the Consolidation Act
provides, in great detail, for equity and equality, compensation and other
benefits when finalising the consolidation scheme. Section 19(1) (b) ensure
that 16-610 SCI/80 1178 "the valuation of plots allotted to a tenure- holder
subject to deductions, if any, made on account of contributions to public
purposes under this Act is equal to the valuation of plots originally held by
him.
Provided that, except with the permission of
the Director of Consolidation, the area of the holding or holdings allotted to
a tenure-holder shall not differ from the area of his original holding or
holdings by more than twenty five percent of the latter." When land ii
contributed for public purposes compensation is paid in that behalf in the
event of illegal or unjust orders passed, appellate and revisory remedies are
also provided.
On such exchange or transfer taking place,
pursuant to the finalisation of the consolidation scheme, the holding, upto the
ceiling available to the tenure holder, will be converted into the new
allotment under the consolidation scheme . Thus, we see no basis in justice nor
gross arbitrariness in the continuance of the land reforms proceedings even
when consolidation proceedings are under way. We are not all impressed with counsel's
citation of the ruling in Agricultural & Industrial Syndicate Ltd. v. State
of UP and others,(l), particularly because there has been a significant
amendment to s. S subsequent thereto. The law as it stood then was laid down by
this Court in the above case;
but precisely because of that decision an
explanation has been added to s. 5 of the Consolidation Act which reads thus:
Explanation:- For the purposes of
subsection(2) a proceeding under the Uttar Pradesh Imposition of Ceiling on
Land Holdings Act, 1960 or an uncontested proceeding under Sections 134 to 137
of the U.P.
Jamindari Abolition and Land Reforms Act,
1950, shall not be deemed to be a proceeding in respect of declaration of
rights or interest, in any land.
The view of the Allahabad High Court in
Kshetrapal Singh v. State of U.P.(2) (H.C.) is correct, and in effect negatives
the submission of Shri Arvind Kumar that there should be a stay of ceiling
proceedings pending completion of consolidation proceedings. The head note in
Kshetrapal Singh's case (Supra) brings out the ratio and for brevity's sake, we
quote it;
By adding the Explanation after
sub-section(2) of Section 5 of the Act a legal fiction has been created.
What is 1179 otherwise a proceeding in
respect of declaration of rights or interest in any land is deemed not to be
such a proceeding. That is the clear legislative intent behind the Explanation.
ordinarily an Explanation is intended to explain the scope of the main section
and is not expected to enlarge or narrow down its scope but where the
legislative intent clearly and unambiguously indicates an intention to do so,
effect must be given to the legislative intent notwithstanding the fact that
the legislature named that provision as an Explanation.
A feeble submission was made that there was
time-wise arbitrariness vitiating the statute in that various provisions in the
Act were brought into force on random dates without any rhyme or reason, thus
violating, from the temporally angle, Art. 14. It is true that neither the legislature
nor the Government as its delegate can fix fanciful dates for effectuation of
provisions affecting the rights or citizens. Even so, a larger latitude is
allowed to the State to notify the date on which a particular provision may
come into effect. Many imponderables may weigh with the State in choosing the
date l) and when challenge is made years later, the factors which induced '7
the choice of such dates may be buried under the debris of time. Parties cannot
take advantage of this handicap and audaciously challenge every date of coming
into force of every provision as capriciously picked out. In the present case,
s.6(1) (g) has been brought into force on 8.6.73, s.6(3) on 10.10.75, s.3(4) on
15.8.72, s.16 on 1.7.73 and s.(l) (e) on 24.1.71.
This last date which was perhaps the one
which gave the learned Advocate General some puzzlement was chosen because on
that date the election manifesto of the Congress Party in all the States
announced a revised agrarian policy and that party was in power at the Union
level and in most of the States. Although a mere election manifesto cannot be
the basis for fixation of a date, here the significance is deeper in that it
was virtually the announcement of the political government of its pledge to the
people that the agrarian policy would be revised accordingly. The other dates
mentioned above do not create any problem being rationally related to the date
of a preceding ordinance or the date of introduction of the bill. The details
are not necessary except to encumber this judgment. We would emphasise that the
brief of the State when meeting constitutional challenges on the ground of
arbitrariness must be a complete coverage, including an explanation for the
date of enforcement of the provision impugned. Court and counsel cannot dig up
materials to explain fossil dates when long years later an enterprising
litigant chooses to challenge.
1180 A few other minor infirmities were
faintly mentioned but not argued at all or seriously, such as, for instance,
the contention that s. 38B of the Act which understandably excludes res
judicata is challenged as violative of the basic structure of the Constitution
and otherwise exceeds legislative competence. We do not think there is need to
dilate on every little point articulated by one or other of the numerous
advocates who justify their writ petitions or civil appeals by formal
expression of futile submissions.
We dismiss all the appeals and all the writ
petitions and all the special leave petitions with costs one set in all the cases
together which we quantify as Rs. 5,000/-.
S.R. Appeals and Petitions dismissed.
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