Madhusdan Singh & Ors Vs. Union of
India & Ors [1983] INSC 183 (22 November 1983)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
THAKKAR, M.P. (J)
CITATION: 1984 SCR (1) 849 1984 SCC (2) 381
1983 SCALE (2)856
ACT:
West Bengal Land Reforms Act, 1955 as amended
by Amendment Acts of 1972 and 1977-Sections 14M, 17(c) 17(6) and 21B of
constitutional validity of.
HEADNOTE:
The petitioners, in this round of challenge
assailed the validity of Section 14M, 17(c), 17(6) and 21 B of the West Bengal
Land Reforms Act, calling to their aid certain observations made by this Court
in Sri Sri Kalimata Thakurani and Sri Sri Raghunath Jain & Ors etc v. Union
of India & Ors. [1981] 2 S.C.R. 950 and the decisions in Minerva Mills Ltd.
v. Union of India & Ors. [1981] 1 S.C.R. 206 and Waman Rao & Ors. v.
Union of India & Ors. [1981] 2 S.C.R. 1 The petitioners raised the
following points:
(i) that the total ceiling area allowed to be
retained by the 1953 Act in respect of agricultural land in Khas possession of
the Raiyats was drastically reduced;
(ii) that although the status of Raiyats was
conferred on the erstwhile landlords which was heritable and transferable, the
institution of bargards was introduced in order to enable the raiyats to
cultivate their lands on a 50:50 basis and, (iii) that while the Amendment Act
of 1972 had given a right to the raiyats to resume the lands given to the
bargardars for their personal cultivation; the subsequent amendments took away
this right and made the right of the bargardar both heritable and transferable
causing serious detriment and prejudice to the raiyats.
Dismissing the petitions, the Court.
HELD :1.1 The impugned amendments were
manifestly and pointedly made for the purpose of giving effect to and securing
the objects of Article 39(b) because these Acts clearly intended to distribute
the material resources of the community viz, the agricultural lands to a large
number of tillers of the soil in order to serve the common good on the
aforesaid people. The Amendments fall within the letter and spirit of Article
39(b) of the Constitution. 1 lie Acts have not touched the non-agricultural
home stead lands, or buildings of the Land owners standing thereon but has
taken over only a major portion of the agricultural lands, leaving with the
landlords a portion prescribed within the 850 ceiling limit and distributed the
excess to the tillers of the soil which alone constitute their main source of
sustenance and livelihood. The claim of the raiyats (erstwhile landlords) that
the Acts amount to confiscation is absolutely untenable and amounts only to
shedding crocodile tears and an anathema or taboo. [860 H; 861 A-B; 860 G]
1.2 The error regarding the addition of
Amending Acts as items of Entry in the Ninth Schedule was inadvertently crept
in the decision of Sri Sri Kalimata Thakarani's case. Even if the Acts were not
included in the Ninth Schedule their constitutional validity could not be
questioned because the provisions are otherwise reasonable and give full effect
to the pragmatic and socialistic approach as contained in Article 39(b) of the
Constitution.
Sri Sri Kalimata Thakurani and Sri Sri
Raghunath Jew and Ors v. Union of India & Ors. [1981]2 S.C.R 950 Minerva
Mills Ltd v. Union of India and Ors [1981] 1 S.C.R. 206;
Waman Rao & Ors v Union of India &
Ors [1981] 2 S.C.R. 1 Sanjeev Coke Manufacturing Co v. M/s Bharat Coking Coal
Ltd and Anr [1983] 1 S.C.R. 147, Sasanka Sekhar Maity & Ors, Union of India
& Ors, 1980; 4 S.C.C. 716, State of Tamil Nadu etc v. L. Abu Kavur Bai and
Ors CA Nos 957-966 (N) of 1973 decided on 31-10-83 followed.
1.3 The Amendment Acts cannot be challenged
as violative of the doctrine of nexus or involving no process of distributions;
State of Karnataka v Rangnatha Reddy &
Anr [1978] 1 S.C.R. 641, Minerva Mills Ltd v. Union of India & Ors [1981] 2
S.C.R. 950, Sanjeeva Coke Manufacturing Co. v. M/s Bharat Coking Coal Ltd and
Anr [1983] 1 S.C.R. 147, and State of Tamilnadu etc v. L. Abukavar Bai &
Ors C.A. No. 957-966 (N) of 1973 decided on 31-10-1983 followed.
1.4 The provisions of the Amendment by which
the raiyat is enjoined to reside in the village itself for a large part of the
year cannot be said to be either harsh or arbitrary.
Sri Sri Kalimata Thakurani etc. v. Union of
India & Ors. [1981]2 S.C.R. 950, applied.
ORIGINAL JURISDICTION: Writ Petition No. 5545
of 1980.
(Under Article 32 of the Constitution of
India.) Pankaj Malik and Mr. R. P. Singh for the Petitioners.
S. N. Kacker and Rathin Das for the
Respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. True to the spirit and letter of our Constitution and in
fulfilment of the promises made by our national leaders to the people of India,
the Government sought to introduce agrarian 851 reforms so as to reserve the
lands to the tillers of the soil giving marginal relief or compensation to the
erstwhile landlords or tenants in-chief, through various statutes passed by
almost all the States in the country. I n order to hasten and safeguard the
agrarian reforms the Constitution takes full care by virtue of the insertion of
the directive principles of Stale policy- contained in part IV, which are
undoubtedly the heart and soul of our Constitution and have in fact been
complied with in a variety of spheres.
Ceaseless attempts made by the landlords to
challenge the constitutional validity of the aforesaid reforms met with little
success. Having failed in their attempts to undo the socialist reforms passed
for the purpose of building an egalitarian society and bringing about marked
improvement in the condition of the poor suffering tillers by the various Acts
passed by the States, the landlords left no stone unturned and were always on
the lookout for an opportunity to ' seize the lands from the tenants on one
pretext or the other through manpowers muscle-power or money-power.
Nevertheless, the constitutional validity of
most of the Acts came up for decision in the High Courts and in this Court and
by and large each one of them was held to be constitutionally valid, thus
setting at naught the attempts of the landlords to take back possession of the
lands which should have been given to the tillers of the soil long before. The
landlords were thus unable to get hold of any opportunity to pounce upon the
land which went and should have gone to the actual tillers of the soil.
Thereafter, some of the bigger landlords
tried through their dextrous methods aud legal ingenuity to defeat the laudable
social endeavour of the Government by making a show of the so-called complete
destruction of their assess and properties reducing them to starvation. This
case is yet another glaring illustration of such an adroit attempt made by the
tenants-in-chief to deprive the actual tillers of the rights conferred on them
by the Land Reforms Acts of West Bengal passed from 1953 to 1977. In view,
however, of the modern trends of the decisions of this Court, which always made
a practical and pragmatic approach to any progressive step taken by the
Parliament, the attempts of the landlords ultimately proved to be a grotesque
failure.
Coming now to the facts of the case, a brief
history of the admirable object of the agrarian reforms introduced by the
Government of West Bengal may be necessary as a prelude to our discussion of
the subject, In fact, all the contentions raised before us stand 852 concluded
by a recent decision of this Court as we shall show hereafter. Not content with
the addition of Art.31C of the Constitution which was introduced by the
constitution (25th Amendment) Act, 1971, the petitioners chose to call into aid
the decisions of this Court in Minerva Mills Ltd.
v. Union of India & Ors and Waman Rao
& Ors. v. Union of Indian & Ors, which also proved to be an exercise
futility because the ratio of, these cases is in no way of any assistance to
the petitioners.
In the instant case, we are concerned with
agrarian reforms achieved from time to time by the Government of West Bengal in
order to improve the lot of the tillers of the land by giving them as many
facilities as could be possible within the framework of the law and the
Constitution. Having realised that the West Bengal Estates Acquisition 'Act,
1953 (hereinafter referred to as the '1953 Act') could not be challenged the
landlords waited for future litigations swoop down on the validity of the West
Bengal Land Reforms Act, 1955 (hereinafter referred to as the '1955 Act') as
amended by the West Bengal Land Reforms (Amendment) Act, 1972 and the West
Bengal Land Reforms (Amendment) Act, 1977 (for facility, to be referred to as
the 'Amendment Act of 1972' and 'Amendment Act of 1977' respectively).
In the first round which was the subject
matter of a decision of this Court Sri Sri Kalimata Thakurani and Sri Sri
Raghunath Jew & Ors. etc. v. Union of India & Ors. to which one of us
Fazal Ali, J.) was a party, this Court negatived the constitutional objections
and contentions raised by the landlords against the reforms introduced by the
1955 Act and the 1972 and 1977 Amendment Acts.
Unfortunately, however, there appears to be
some small lacuna in the above judgment which was unhesitatingly exploited by
the petitioners so as to attempt to destroy the progressive amendments of 1972
and 1977 particularly taking advantage of certain observations made in that
case to which we shall come later.
To begin with, in the 1953 Act which was
enforced with effect from 12th February, 1954, Section 4 introduced a more or
less radical reform for the benefit of the actual tillers by abolishing the
rights of 853 the intermediary (ex-landlords). By virtue of this section all
estates and the rights of every intermediary was to vest in the State free from
all encumbrances from a date mentioned in a notification issued by the
Government. In order, however, to be just and fair to the erstwhile landlords
they were conferred the status of raiyats or tenants. By virtue of s. 6 they
were entitled to retain certain categories of lands like lands comprised in
home- steads or' appertaining to buildings and structures, etc., of
non-agricultural land in khas possession. Section 6(d) expressly provided that
so far as agricultural land in khas, possession was concerned it would not
exceed twenty five acres in area to be chosen by the landlord. No serious
grievance was made before us regarding the provisions of sections 4 to 6
excepting that the ceiling of twenty five acres was not sufficient for the
landlords to make both their ends meet and enable them to earn their livelihood
Such a plea has to be stated only to be rejected because the landlords who had
huge lands comprising home-stead lands or those appertaining to buildings or
structures and non- agricultural lands in khas possession were not at all
touched by the 1953 Act. In these circumstance therefore, we do not take any
serious notice of this grievance which in fact was not pressed before us.
Realising the current trends in the social,
approach of the agrarian reforms made by the courts, the counsel for the
petitioners confined his arguments to three infirmities from which the 1953 Act
and the 1972 and 1977 Amendment Acts suffered. However, during the course of
arguments the challenge remained confined only to certain specific amendments
made by the 1972 and 1977 Amendment Acts and the points raised before us may be
summarised thus: - (1) that the total ceiling area allowed to be retained by
the 1953 Act in respect of agricultural land in khas possession of the raiyats
was drastically reduced, (2) that although the status of raiyats was conferred
on the erstwhile landlords which was heritable and transferable, the
institution of bargardars was introduced in order to enable the raiyats to
cultivate their lands on a 50:50 basis, and ' (3) that while the Amendment Act
of 1972 had given a right to the raiyats to resume the lands given to the 854
bargardars for their personal cultivation, the subsequent amendments took away
this right and made the right of the bargardar both heritable and transferable
causing serious detriment and prejudice to the raiyats.
We now proceed to refer only to those
provisions whose constitutional validity has been seriously challenged by the
petitioners. It appears that by the 1972 Amendment Act certain changes were
made and a reference was made particularly to s. 14M which may be extracted
thus "14M. Ceiling area-(1) The ceiling area shall be,- (a) in the case of
a raiyat, who is an adult unmarried person, 2.50 standard hectares;
(b) in the case of a raiyat, who is the sole
surviving member of a family, 2.50 standard hectares;
(c) in the case of a raiyat having a family
consisting of two or more but not more than five members, 5.00 standard
hectares;
(d) in the care of a raiyat having a family
consisting of more than five members, 5.00 standard hectares, plus 0.50
standard hectare for each member in excess of five, so, however that the
aggregate of the ceiling area for such raiyat shall not, in any case, exceed
7.00 standard hectares, (e) in the case of any other raiyat, 7.00 standard
hectares;
(2) Notwithstanding anything contained in
sub-section (1), where, in the family of a raiyat, there are more raiyats than
one, the ceiling area for the raiyat, together with the ceiling area of all the
other raiyats in the family shall not, in any case, exceed,- (a) where the
number of members of such family does not exceed five, 5.00 standard hectares;
855 (b) where such number exceeds five, 5.00
standard hectares, plus 0.50 standard hectare for each member in excess of
five, so, however, that the aggregate of the ceiling area shall not, in any
case, exceed 7.00 standard hectares.
(3) For the purpose of sub-section (2), all
the lands owned individually by the members of a family or jointly by some or
all the members of such family shall be deemed to be owned by the raiyats in
the family." It was submitted that the drastic reduction of the area of
the raiyat has been reduced to 2.50 standard hectares being the minimum and
7.00 standard hectares being the maximum according to the nature of cases
mentioned in cls.(a) to (e) of s. 14M(I) and cls.(a) and (b) of s. 14M(2), as
extracted above, which worked serious injustice to the tenants.
A strong exception was taken to the amendment
of s.17 of the 1955 Act particularly the substitution of s.17.(c) and the
various - provisos to that section. The validity of s.17(6) was also challenged
on the ground that the legislation was confiscatory.
The provisions of the proviso to cl.(8) of
s.2 added by the 1977 Amendment Act to the 1955 Act was seriously assailed. The
said proviso runs thus:
"Provided that such person or member of
his family resides for the greater part of the year in the locality where the
land is situated and the principal source of his income is produced from such
land." A similar challenge was made to the addition of s.21B in the 1955
Act by the 1977 Amendment Act. On similar grounds the aforesaid provisions were
also challenged in the decision of this Court in Sri Sri Kalimata Thakurani's
case -(supra) which did not meet with any success. It was, however, pointed out
by the counsel for the petitioners that this Court did not accept the arguments
of the petitioners in that case because it was under an erroneous impression
that the 1955 Act and the Amendment Acts of 1972 and 1977 were added to the
Ninth Schedule in the Constitution of India and were 856 therefore, immune from
challenge. To some extent the counsel is right in his statement that such an
inadvertent mistake has crept in due to oversight because the 1955 Act and the
Amendment Acts of 1972 and 1977 were added to the ninth Schedule by the 4th
Amendment of the Constitution of 1976 being entry numbers 181 to 185. Hence, it
could, be reasonably argued that the constitutional validity' of the
provisions, mentioned above, was justiciable and could be gone into. Before
dealing with these arguments it may be necessary to extract certain portions of
the decision of this Court in Sri Sri Kalimata Thakurani's case (supra) where
this Court after dealing with the various provisions' observed thus:
"In the instant case, it is clear that
the 1955 Act as also the Amendment Act of 1972 were added to the Ninth
Schedule, being entry Nos. 80 and 81, prior to April 24, 1973. In these
circumstances, it is manifest that the aforesaid Acts are completely immune
from challenge on the ground that they are violative-of any of the rights
enshrined in Part III of the Constitution. The learned counsel for the petitioner,
therefore, was fully justified in making the concession before us." The
error is undoubtedly there but neither the counsel for the petitioners nor the
counsel for the respondent drew our attention to this omission. Even if the
Acts were not included in the Ninth Schedule their constitutional validity
could not be questioned because this Court has clearly held in Sri Sri Kalimata
Thankurani's case that the provisions are otherwise reasonable and give full
effect to the pragmatic and socialistic approach, where the following
observations were made:
"It would be seen that s.17 permits the
cultivator to terminate the Cultivation of the land by bargardar and resume
possession under his own cultivation if the conditions mentioned in clauses
(a), (b) and (d) of sub section (l) of s. 17 are satisfied. Clause (d) may be
extracted thus:- "That the person owning the land requires it bonafide for
bringing it under personal cultivation." "Thus, the cultivator has a,
right to get back the land for personal cultivation if he requires it for his
bona fide 857 use and proves the some to the satisfaction of the authority
appointed under s.17(1)." Referring to some of the provisions of the 1972
Amendment Act this Court held that the provision by which the right of bargardar
was protected and made heritable could not be challenged as being either
unconstitutional, unreasonable or arbitrary.' But this Court made some
observations which were in favour of the petitioner and which may be extracted
as follows .
"But when the Bargardor on his, own
volition surrenders or abandons the land, there is no reason why the tenant
should not be allowed to resume ' cultivation and instead be compelled to get
the land cultivated by some other person nominated by the authority concerned
under s.49 of the 1955 Act. This provision therefore appears to us to be
extremely harsh and works serious injustice to the rights of the tenants
particularly after the ceiling are of the tenant has been considerably reduced
by the Amendment Act of 1972. Thus, the tenant having a small area guaranteed
to him for his unit, he should have at least fuller and more effective rights
to get that area cultivated by him or even 'by a bargardar of his choice
subject to resuming the same, if the bargardar surrenders or abandons the
land........ Unfortunately, however, though the provisions of sub-sections (3),
(4) and (5) of s.20B, which is only a penal section) perilously border on
arbitrariness and amounts to serious curbs on the fundamental right of the
cultivator to pursue his occupation, we cannot however strike down these
provisions because they are contained in the Amendment Act of 1972 which has
been placed in the Ninth Schedule prior to April 54, 1973, and therefore fall
within the protective umbrella and are immune from challenge." A capital
was therefore made out of the above observations in Sri . Sri Kalimata
Thakurani's case.
Reliance was also placed on a decision of
this Court in Sasanka Sekhar Maity & Ors, v Union of India & Ors where
A.P. Sen, J., speaking for the Court, made the following observations: - 858 In
order, therefore, to reconcile the fundamental rights of the community as a
whole with the individual rights of the more fortunate section of the
community, it was fundamentally necessary to make the impugned legislation to
secure to a certain extent the rights of that part of the community which is
denied its legitimate share in the means of livelihood.
"The broad objectives or any,
legislation relating to agrarian reforms are materially four, viz., (I) to
maximise the agricultural output and productivity, (2) a fair and equitable
distribution, of agricultural income, (3( increase in employment opportunities,
and (4) a social or ethical order. Though the abolition of the zamidari system
in the State of West Bengal was an important step forward, the feudal structure
remained so far as the peasants were concerned. These objectives have been
achieved through progressive legislation " These observations put the
petitioners completely out of court demolish the contentions advanced before
us. The four objectives mentioned by Sen,J. in the passage extracted above are
clearly brought out and implemented by virtue of the impugned amendments in the
1955 Act.
So far as the decision in the case of Sri Sri
Kalimata Thakurani (supra) is concerned, in view of the crystallisation of the
law in Minerva Mills, Waman Rao (supra) and Sanjeev Coke Manufacturing Co. v.
M/S. Bharat Coking Coal Ltd. & Anr. cases which have been followed and
amplified is the recent decision of this Court in State of Tamil Nadu , etc v.
L Abu Kavur Bai & Ors. the matter is no longer res integra and even if
there was an inadvertent error in the observations of this Court in Sri Sri
Kalimata Thakurani's case, the same has become redundant as the impugned
provisions can be supported as squarely falling within the four corners of
Art.39(b) of the Constitution as the intention of the Acts is to secure and
promote the objectives contained in Art.39(b). In this connection, we might
extract a few observations from L. Abu Kavur Bai Ors (supra):
859 "In view of Art.31C, which gives
protective umbrella against Art.31(2) also, the Court cannot strike down the
Act merely because the compensation for taking over the transport services or
its units is not provided for. The reason for this is that Art.31C was not
merely a pragmatic approach to socialism but imbibed a theoretical aspect by
which all means of production, key industries, mines, minerals, public
supplies, utilities and services may be taken gradually under public ownership.
management and control." It was further argued by the petitioners that
there was no clear nexus between the Act and the objectives contained in
Art.39(b). We are, however, unable to agree with this argument because the
question of nexus has been clearly expounded by this Court both in the Minerva
Mills and Sanjeev Coke Manufacturing Co.'s cases as also in the case of L. Abu
Kavaur Bai & Ors. (supra) where a Constitution Bench of this Court,
speaking through one of us (Fazal Ali,J.), made the following observations: D
"Another important facet of Art.31C which has been emphasised by this
Court is that there should be a close nexus between the statute passed by the
legislature and the twin objects mentioned in clauses (b) and (c) of Art.39. In
approaching this problem and considering the question of nexus a narrow
approach ought not to be made because it is well settled that the courts should
interpret a constitutional provision in order to suppress the mischief and
advance the object of the Act. The doctrine of nexus cannot be extended to such
an extreme limit that the very purpose of Art.39(b)&(c) is defeated If the
nexus is present in the law then the protection of Art.31C becomes complete and
irrevocable." It was also argued that by virtue of the various amendments
made by the 1972 and 1977 Amendment Acts no process of distribution is
involved. This argument cannot be accepted in view of the observations of this
Court by Krishna Iyer,J. in State of Karnataka v. Ranganatha Reddy & Anr.
etc. where the learned Judge observed as follows:
860 "The next question is whether
nationalisation can have nexus with distribution...... To 'distribute';
even in its simple dictionary meaning, is to
allot to divide into classes or into groups and 'distribution' embraces
arrangement, classification, placement, disposition, apportionment, the way in
which items, a quantity, or the like is divided or apportioned; the system of
dispersing goods throughout a community.'' The above observations were followed
and amplified in L. Abu Kavur Bai' case (supra) thus:
"It is obvious, therefore, in view of
the vast range of transactions contemplated by the word 'distribution' as
mentioned in the dictionaries referred to above, it will not be correct to
construe the word 'distribution' in a purely literal sense so as to mean only
division of a particular persons. The words, apportionment, allotment,
allocation, classification, clearly fall within the broad sweep of the word
'distribution'. So construed, the word 'distribution' as used in Art.39(b) will
include various facets, aspects, method and terminology of a broad based
concept of distribution In view of the aforesaid observations, the challenge to
the impugned provisions of the Acts no longer survives.
Moreover, what could have been a better mode
of distribution contemplated by Art.39(b) than to take away the surplus
agricultural lands from the landlords and distribute it amongst the poor
suffering landless tillers of the soil who had suffered for centuries as
vassals slaves of the rich zamindars, The Acts have not touched the non
agricultural homestead lands or buildings 'standing thereon but has taken over
only a major portion of the agricultural lands, leaving with the landlords a
portion prescribed within the ceiling limit, and distributed the excess to the
tillers of the soil which along constitute their main source of sustenance and
livelihood. The claim of the raiyats (erstwhile landlords that the Acts amount
to confiscation is absolutely untenable and, if we dare say, it amounts only to
shedding of crocodile tears and an anathema or a taboo. We are therefore
convinced that the impugned amendments were manifestly and pointedly made for
the purpose of giving effect to and securing the 861 Objects of Art.39(b)
because these Acts clearly intended to distribute the material resources of toe
community, viz., the agricultural lands to a large number of tillers of the
soil. in order to serve the common good of the aforesaid people. The challenge
to the impugned Acts and amendments must therefore fail as the amendments fall
within the letter and spirit. Of Art.39(b).
Finally, it was suggested that the provision
of the amendment by which the raiyat is enjoined to reside In the village
itself for a large part of the year seems to be harsh and arbitrary. This
argument does not hold any water for two reasons- (1) that when once it is
found that the Act is meant to promote and effectuate the objectives contained
in Art.39(b), which is no doubt the case here, no other ground of challenge
would survive because by virtue of Art.31C any Act which seems to secure the
objects of Art.39(b) cannot be challenged being violative of Art. 14, 19 or 31.
(2) Secondly, the provision that the
land-owner should reside in the village is both salutary and beneficial, the
object being that if a raiyat wants to cultivate his own land he must give his
whole-hearted attention to the said land instead of living the village and
carrying on other avocations of life.
One of us, (Fazal Ali,J.) had clearly
adverted to this aspect of the matter in Sri Sri Kalimata Thakurani's case
(supra) and observed h as follows:- "The dominant object of the proviso is
to abolish the age-old institutions of absentee land-holder by insisting that
the cultivator to whom land is allotted must give full and complete attention
to the soil and as a result of. which there will be maximum utilisation of the
agricultural resources which would increase production......... It is obvious
that the tenant has to remain in the village for the purpose of cultivating the
lands. sowing the seeds, growing it and harvesting it. These processes would
doubtless requires the presence of the tenant for a greater part of the year
which is that the proviso predicates. If 862 the tenant is permitted to leave
the village for more than half the year then the very purpose of giving such a
vast area for cultivation to a tenant will be foiled Moreover the proviso
merely insists that the tenant should remain in the village or its periphery
for 'greater part of the year' which appears to be not only responsible but
absolutely essential if the land has to be cultivated in a scientific manner in
order to yield the maximum possible production, which would result in better
and equitable distribution of agricultural products for the use of the people
of the country." For the reasons given above all the contentions raised by
the petitioners fail and the writ petition is dismissed but without any order
as to costs.
S.R. Petitions dismissed.
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