H.S.
Srinivasa Raghavachar V. State of Karnataka & Ors [1987] INSC 130 (23 April
1987)
REDDY,
O. CHINNAPPA (J) REDDY, O. CHINNAPPA (J) DUTT, M.M. (J)
CITATION:
1987 AIR 1518 1987 SCR (2)1189 1987 SCC (2) 692 JT 1987 (3) 26 1987 SCALE
(1)885
ACT:
Karnataka
Land Reforms Act, 1961--Sections 44, 48(8) and 48A--Right of landlord to resume
land if bona fide required for personal cultivation--Taken away by Karnataka
Land Reforms (Amendment) Act, 1974--Whether constitutionally valid--Amendment
law aimed at agrarian reform--Advocates not to be prevented from appearing
before Tribunals functioning under the Act--Tribunals functions under the
Act--Whether to be manned by judicial personnel.
Administrative
law--Statutory Tribunals--Whether to be a lay tribunal or judicial
tribunal--Some disputes required trained judicial mind, many do not require
application of trained judicial mind-Land Tribunals under Section 48(8) of
Karnataka Land Reforms Act, 1961 do not require trained judicial personnel.
Advocates
Act, 1961/Indian Bar Councils Act, 1926--Section 30/ Section 14---Advocates--Right
of appearance before Tribunals-Section 48(8) of Karnataka Land Reforms Act,
1961 not to be enforced so as to prevent Advocates from appearing before
Tribunals under the Act.
Constitution
of India, 1950--Articles 31-A, 31-B and 31-C, 39(b) and (c) and Ninth
Schedule--Karnataka Land Reforms (Amendment) Act, 1974 Constitutional validity
of--Law clearly aimed at agrarian reform.
HEADNOTE:
The
Karnataka Land Reforms Act. 1961 was substantially amended by the Amendment Act
I of 1974 and it was included in the Ninth Schedule as was the principal Act.
Section 5 was amended and the provisos were omitted. Sections 14 and 16 were
deleted. Section 44 was mended. New sub-section (1) provided that:- "All
lands held by or in the possession of tenants (including tenants against whom a
decree or order for eviction or a certificate for resumption is made or issued)
immediately prior to the date of commencement of the Amendment Act, other than
lands 1190 held by them under leases permitted under Section 5 shall, with
effect on and from the said date, stand transferred to and vest in the State
Government. '' A new Section 48 providing for the constitution of Tribunals was
introduced. Sub-section (8) of Section 48 provided that no legal practitioner
shall be allowed to appear in any proceeding before the Tribunal. Section 48A
dealt with the procedure to be adopted by the Tribunal in its enquiry into
applications made under Section 45 for registration of a person as an occupant.
The
provision for an appeal from the decision of the court and the further right of
revision under the amended Act were taken away and there was no right of appeal
or revision against the decision of the Tribunal. The 1974 Amending Act took
away the right which was saved by the original Act in favour of the widow,
unmarried woman, minor and disabled person to create a tenancy or lease of the
land. The more important right which was taken away by the 1974 Amendment was
the right of the landlord to resume the land if he bona fide required the land
for personal cultivation or for a non-agricultural purpose. This right was
denied by the Amending Act even if the income by the cultivation of the land
which he was entitled to resume was the principal source of income for the
maintenance of the land- lord.
The
Writ Petitions challenging the amendments filed by the appellants were
dismissed by the High Court.
In
the appeals, it was contended on behalf of the appellants that the 1974 Amendment
insofar as it took away the right of a landlord to resume possession of the
tenanted land where he bona fide required the land for personal cultivation and
had no other principal source of income was ultra wires, notwithstanding its
inclusion in the Ninth Schedule. as it offended the basic structure of the
Constitution. that the provision for the constitution of a Tribunal consisting
of persons with unspecified qualifications in the place of a court was
similarly ultra wires the powers of the State Legislature, and that Section
48(8) which excluded legal practitioners from appearing before the Tribunals
was repugnant to Section 30 of the Advocates Act, 1961 and Section 14 of the Indian
Bar Councils Act. 1926 and the State Legislature was not competent to make a
law repugnant to laws made by Parliament pursuant to entries 77 and 78 of List
I of the Seventh Schedule of the Constitution and that important questions
which fail for consideration under Section 48A should not be left to a Tribunal
consisting of members nominated by the State Government with no regard for any
qualification.
It
was also contended that the 1974 Amendment Act was not a law pertaining to
agrarian reform; nor was it a law directed towards securing that the ownership
and control of the material resources of the community were so distributed as
best to sub-serve the common good or that the operation of the economic system
did not result in the concentration of wealth and means of production to the
common detriment. that far from setting out to achieve these goals, the
Amendment Act set out in quite opposite direction by seeking to reduce to
destitution small landlords whose sole means of livelihood was the tenanted
land which they were allowed to resume for personal cultivation, that the
original Act was very fair as it recognised poverty amongst landlords as well
as poverty amongst tenants and afforded a measure of protection to the poorer
sections of the landlords, and that Waman Rao's case to the extent it upheld
Articles 31-A, 31-B and 31-C and the validity of the legislations impugned
therein required re-consideration.
Dismissing
the appeals, this Court,
HELD:
1. No provision of the Amending Act offends the basic structure of the
Constitution. [1204G-H]
2.
The 1974 Amending Act took away the right which was saved by the original Act
in favour of the widow. unmarried women, minor and disabled person to create a
tenancy or lease of the land. The more important right which was taken away by
the 1974 Amendment was the right of the landlord to resume the land if he bona
fide required the land for personal cultivation or for a non-agricultural
purpose.
[1201E-F]
3.
It is too late in the day to contend that, in the existing system of economic
relations, ownership of land to the tiller of the land is not the best way of
securing the utmost utilisation of land, a material resource of the community
for the common good of the entire community. It is now well recognised that in
the absence of common ownership of land in the existing system of economic
relations, the greatest incentive for maximum production is the feeling of
identity and security which is possible only if the owner- ship of the land is
with the tiller. It is in recognition of this principle that 'landlordism' was
sought to be totally done away with by the amendment of Section 5 of the Act,
by the omission of Sections 14 and 16 and by the amendment of Section 44.
[1204C-E] 1192
4.
If between a landlord who did not himself personally cultivate the land and a
tenant who so cultivated the land, the legislature preferred the cultivating
tenant, it is not possible to hold that such preference is not part of a
programme of agrarian reform pursuant to the Directive Principles contained in
Articles 39(b) and (c) of the Constitution. There is not the slightest doubt
that the amendment was a law clearly aimed at agrarian reform to secure these
Directive Principles. It is true that one of the conditions subject to which
alone a landlord could resume land for personal cultivation under Section 16 of
the Act was that the income from the land proposed to be cultivated by the
landlord on resumption should be the principal source of income for the
maintenance of the landlord, but the question of resumption of land from a
tenant would not arise unless a tenant was already cultivating the land. If,
there- fore, a tenant is already cultivating the land and if, presumably, that
is the source of his livelihood, there is no reason why he should be
dispossessed to enable a landlord whose source of livelihood it was not until
then to make it his principal source of maintenance hereafter. [ 1204E-G]
5.1
The mal-functioning of some of the Tribunals cannot possibly vitiate the
provision relating to the constitution of the Tribunal and entrustment of the
decision of certain issues to the Tribunal. There can be no doubt that while
the decision of some disputes require a trained Judicial mind to be applied to
it, there are many other questions which do not require the application of any
trained judicial mind.
The
disputes contemplated by Section 48A do not appear to be disputes of a nature
where the application of a trained judicial mind is absolutely essential. [
1205C, D]
5.2
Land Tribunals have functioned very well in some of the States where under the
respective State Acts more complicated questions than ones under Section 48A
were entrusted to the Land Tribunals. The failure of the Land Tribunals to
function efficiently in the State has apparently been taken note of by the
Legislature itself and the Act has since been amended making provision for an
appeal and revision. The failure of some of the Land Tribunals to function
efficiently cannot be said to be sufficient to stigmatise wholesale, the
functioning of all the Tribunals constituted under the Act and invalidated the
provisions of the Act relating to Tribunals. [1205D-F]
6.1
Section 48(8) will not be enforced so as to prevent Advocates from appearing
before the Tribunals functioning under the Act, since this provision is
repugnant to Section 30 of the Advocates Act, 1961 and Section 14 of the Indian
Bar Councils Act, 1926 and the State 1193 Legislature is not competent to make
a law repugnant to laws made by Parliament pursuant to Entries 77 and 78 of
List I of the Seventh Schedule of the Constitution. [1205G-H; 1206A]
6.2
In regard to decisions already rendered by the Tribunals, it is not necessary
to re-open them on the ground that legal practitioners were not allowed to
appear before the Tribunals in those cases. [1205B]
7.
It is not necessary either to re-consider or to go behind the decision in Waman
Rao's case for the purpose of this case. [1202D] Waman Rao & Ors. v. Union
of India, [1981] 2 SCR 1 and Jaswant Kaur v. State of Haryana, AIR 1977 Punjab
& Haryana 221, referred to.
Civil
Appellate Jurisdiction: Civil Appeals Nos. 3828- 3832 of 1983 etc.
From
the Judgment and Order dated 31.8.82/1.9.1982 of the Karnataka High Court in
W.P. Nos. 19486, 23347 23348, 23349 and 25366 of 1981.
B.R.L,
Iyengar, Soli J. Sorabjee, S.K.V. lyenger and Mrs. Shyamala Pappu, S.
Lakshminarasu, K. Ram Kumar, Mrs. Indira Sawhney and P.R. Ramasesh for the
Appellants.
M.
Veerappa and Ashok Sharma for the Respondents.
The
Judgment of the Court was delivered by CHINNAPPA REDDY, J. The question raised
in the several appeals is primarily that of the wires of sec. 44 of the
Karnataka Land Reforms Act, 1961 as amended by the Karnataka Land Reforms
(Amendment) Act I of 1974. In order to appreciate the submissions made to us,
it will be useful to set out the relevant provisions of the Act before it was
amended by Act I of 1974. Section 2(6) as it stood before the amendment defined
"basic holding" as meaning land which was equal to two standard
acres. "Ceiling area" was defined as meaning land which was equal to
eighteen standard acres. "Court" was defined to mean the court of
Munsif within the local limits of whose jurisdiction the land was situate.
"Family holding" was defined as meaning land equal to six standard
acres.
"Small
holder" was defined to mean a land owner owning land not exceeding two
basic holdings 1194 whose total net annual income including the income from
such land did not exceed one thousand two hundred rupees. "Standard
acre" was defined to mean one acre of the first class of land or an extent
equivalent thereto consisting of any one or more classes of land specified in
Part A of Schedule 1 determined in accordance with the formula in Part B of the
said Schedule. Chapter II (Sections 4 to 43) contained 'General provisions
relating to Tenancies' and Chapter III (Sections 44 to 62) dealt with
'Conferment of owner-ship on tenants'. Section 5 prohibited the creation or
continuation of any tenancy in respect of any land after the appointed day and
barred the leasing of land for any period whatsoever. It was, however, provided
that (a) any small holder might create or continue a tenancy or lease the land
owned by him and (b) any land owner who was a minor, a widow, an unmarried
woman, a person incapable of cultivating land by reason of any physical or
mental disability or a soldier in service in the Armed Forces of the Union or a
seaman, might create or continue the tenancy or lease the land owned by him or
her. It was further provided that tenancies of resumable lands could be
continued until the dispossession of the tenants under s. 14 and of
non-resumable land until the date of vesting under s. 44. Section 14 provided
for resumption of lands from tenants. Sub-section 1, 4 and 6 s. 14 may be
usefully extracted here. Sub-sections 2, 3 and 5 do not appear to be necessary
for the purposes of the present case.
Sub-Sections
1, 4 and 6 were as follows:- '14. Resumption of land from
tenants--(1)Notwithstanding anything contained in sections 22 and 43, but
subject to the provisions of this section and of sections 15, 16, 17, 18, 19,
20 and 41, a landlord may, if he bona fide requires land, other than land
referred to in the first proviso to clause (29) of sub-section (A) of section
2, (i) for cultivating personally, or (ii) for any non-agricultural purpose, file
with the Court a statement indicating the land or lands owned by him and which
he intends to resume and such other particulars as may be prescribed. On such
statement being filed. the Court shall, as soon as may be after giving an
opportunity to be heard to the landlord and such of his tenants and other
persons as may be affected, and, having due regard to continuity, fertility and
fair distribution of lands, and after making such other inquiries as the Court
deems necessary, 1195 determine the land or lands, which the land- lord shall
be entitled to resume, and shall issue a certificate to the landlord to the
effect that the land or lands specified in such certificate has been reserved
for resumption; and thereupon the right to resume pos- session shall be
exercisable only in respect of the lands specified in such certificate and
shall not extend to any other land.
Explanation:-
Subject to such rules as may be prescribed. the Court within the jurisdiction
of which the greater part of the land held by the landlord is situated shall be
the Court competent to issue a certificate under this section." (2) X X X
X X X X X X (3) x x x x x x x x x (4) In respect of tenancies existing on the
appointed day, as soon as may be after the expiry of fifteen months from the
appointed day, as soon as may be after the statement under sub-section(1) is
filed, the Court shall after such inquiry as it deems fit, determine the lands
which will be non-resumable lands leased to tenants for purposes of this Act.
(5)
x x x x x x x x x (6) Notwithstanding anything contained in sub-section (5),
where the landlord belongs to any of the following categories, namely:- (i)
minor;
(ii)
a person incapable of cultivating land by reason of any physical or mental
disability, (iii) a widow;
(iv)
an unmarried woman;
Then,
the application to the Court for possession of land shall be made, within
fifteen months from the appointed day or one year from the date on which—
(a)
in the case of category (i), he attains majority;
1196
(b) in the case of category(ii), he ceases to be subject to such physical or
mental disability;
(c)
in the case of category (iii), she remarries;
(d)
in the case of category (iv), she marries, whichever is later:
Provided
that where land is held by two or more joint landlords, the provisions of this
sub-section shall not apply unless all such landlords, belong to the categories
specified in clauses (i) and (ii) and the application shall be made within one
year from the date on which any one of such landlords ceases to belong to any
such category and an application by any one of the joint-holders shall be
deemed to be a valid application on behalf of all the joint holders:
Provided
further that where a person belonging to any of the categories specified in
clause (i) or (ii) of this subsection, is a member of a joint family, the
provisions of this sub-section shall not apply unless all the members of the
joint family belong to the categories specified in clauses (i) and (ii), but
where the share in the joint family of a person belonging to any of such
categories has been separated by metes and bounds before the filing of the
statement under sub-section (i), if the Court on inquiry is satisfied that the
share of such person in the land separated, having regard to the area,
assessment, classification and value of the land is in the same proportion as
the share of that person in the entire joint family property, and not in a
larger proportion, the provisions of the sub- section shall be applicable to
such person." (7) x x x x x x x x x (8) x x x x x x x x x Section 15
provided for resumption of land by soldiers and seamen. Section 16 prescribed
the conditions restricting resumption of land under s. 14. It is necessary to
extract the whole of s. 16. It was as follows:- "16. Conditions
restricting resumption of land under section 14. The right of a landlord to
resume for cultivating the land personally under section 14, shall be subject
to the following conditions, namely:- 1197 (1) If the landlord owns land not
exceeding two basic holdings he shall be entitled to resume one half of the
land leased to the tenant:
Provided
that the right to resume by such landlord shall be subject to the condition
that in the case of a protected tenant, such tenant, shall be left with at
least one standard acre of the land actually held by him, which-ever is less.
(2)
If the landlord owns land exceeding two basic holdings, he shall be entitled to
resume one-half of the area leased to the tenant, provided that the total area
resumed by the landlord does not exceed three family holdings.
(3)
No landlord. who has been cultivating personally land exceeding three family
holdings shall be entitled to resume any land leased.
(4)
The right to resume land under clauses (1) to (3) shall be subject to the further
condition that the land resumed from all the ten- ants holding under the
landlord together with the' extent of land, if any, cultivated by the landlord
personally and any non resumable land held by him shall not exceed three family
holdings.
(5)
In respect of lands cultivated with plantation crops, the landlord shall not be
entitled to resume more than one-half of the land leased to a tenant.
(6)
If more tenancies than one are held under the same landlord, then the landlord
shall be entitled to resume land only from tenants whose tenancy or tenancies
are the shortest in point of duration:
Provided
that the landlord shall be entitled to resume lands held by protected tenants
only if the required extent of land cannot be resumed from tenants other than
protected tenants:
Provided
further that where such tenancy or tenancies shortest in point of duration
shall on resumption leave with the tenants land in extent which will be less
than a 1198 basic holding, the resumption shall be made in respect of tenancy
or tenancies next longer in point of duration.
(7)
The right to resume land by the landlord, other than a landlord owning land not
exceeding two basic holdings, shall be subject to the further condition that in
the case of protected tenants, each protected tenant shall be left with a basic
holding or the land actually held by him, whichever is less.
(8)
The right to resume land from any tenant shall be exercisable under s. 14 only
once.
(9)
The income by the cultivation of the land of which he is entitled to resume
shall be the principal source of income for the maintenance of the landlord.
(10)
If as a result of the resumption of land under section 14, a fragment is
created, the person entitled to the larger part of the land shall be entitled
to the fragment also.
(10
A) If any person has after the 18th November, 1961 and before the appointed day
transferred any land, otherwise than by partition, then, in calculating the
extent of land owned by such person for purposes of the preceding clauses, the
area so transferred shall be taken into consideration, and land exceeding the
resumable area so calculated shall be deemed to be non-resumable land, and such
person shall not be entitled to resume such non-resumable land.
Explanation-For
purposes of this clause, a land shall be deemed to have been transferred, if it
has been transferred by act of parties (whether by sale, gift, mortgage, with
possession, exchange, lease or any other disposition) made interviews.
(
10 B) Notwithstanding anything contained in clauses (1) to (10) (both
inclusive)., or s, 142, the extent of land, if any, resumable, by any landlord
in Bombay Area shall be subject to the restrictions and conditions specified in
sections 31A, 3lB and 31C of the Bombay Tenancy and Agricultural Lands Act,
1948, as inserted by the Bombay Tenancy 1199 and Agricultural Lands (Amendment)
Act 1955 (Bombay Act 13 of 1956), notwithstanding the provisions of the Bombay
Tenancy (Suspension of Provisions and Amendment) Act, 1957 (Mysore Act 13 of
1957).
(10
C) Notwithstanding anything contained in clauses (1) to (10) (both inclusive),
or s.
142,
the extent of land, if any, resumable, by any landlord in the Hyderabad Area,
shall be subject to the restrictions and conditions specified in the Hyderabad
Tenancy and Agricultural Lands Act, 1950, as in force in the Hyderabad Area on
the 1st November 1956.
(11)
No landlord who at any time before the appointed day had resumed land from any
tenant for personal cultivation under the Bombay Tenancy and Agricultural Lands
Act, 1948, or the Hyderabad Tenancy and Agricultural Lands Act, 1950, shall be
entitled to resume again under section 14 any land left with the same
tenant." Section 44 provided for the vesting of certain lands in the State
Government. Sub-sec. 1 was as follows:
"(1)
As soon as may be after the determination of the non-resumable lands under
sub-section (4) of section 14, by each Court, the State Government may by
notification declare that with effect from such date as may be specified in
such notification (hereinafter referred to as the date of vesting) all the
non-resumable lands determined by such Court which are leased to tenants,
whether protected or other- wise, and all lands leased to permanent and other
tenants referred to in the first proviso to clause (29) of sub-section (A) of
section 2 in the area within jurisdiction of such Court shall stand transferred
to and vest in the State Government." Section 45 provided for the registration
of tenants as occupants of land on certain conditions. Section 47 provided for
the payment of compensation to the land owner in regard to the extinguishment
of rights in lands vesting in the State Government under s. 44. Chapter IV
(sections 63 to 79) dealt with 'ceiling on land holdings'. Section 63
prescribed the ceiling on the extent of land which any person may hold either
as a land-owner, landlord or tenant or as a mortgagee with possession or
otherwise or partly in one capacity and partly in another.
1200
Section 68 provided for the vesting of land surrendered by the owner in the
State Government, Section 72 provided for payment of compensation for lands
surrendered to and vested in the State Government. We are not concerned with
Chapters V, VI, VII, and VIII. Chapter IX dealt with 'Procedure and
Jurisdiction of Court and Appeals'. Section 112 prescribed the duties of the
court and among the duties were "(g) to issue a certificate relating to
reservation of land for resumption under sub-section (1) of s. 14 and (h) to
deter- mine the non-resumable lands under sub-sec. (4) of sec. 14."
Sections 113, 114 and 115 provided for enquiry by the court and the procedure
to be adopted. Section 118 provided for an appeal from the Court to the
District Court.
The
broad scheme of the provisions mentioned or set out above was that there was
not only to be a ceiling on the holding of land, the system of leasing of land
was to be abolished and cultivating tenants were to be invested with rights of
ownership. However, certain limited classes of cases were recognised where
leases were permitted on the one hand and on the other tenants were deprived of
the right to remain in possession of the land. It was provided that leases were
permissible in cases when the landlord was under some disability as specified
in s. 5. It was also provided that a land owner could seek, subject to the
prescribed limits, resumption of land from tenants, if he bona fide required
the land for cultivating personally or for any non-agricultural purpose. The
right to resume land for personal cultivation was no doubt subject to several
severe conditions, one of the most important of which was that the income by
the cultivation of the land which he was entitled to resume should be the
principal source of income for the maintenance of the land owner. In other
words, the Act while fixing a ceiling on the holding of land and generally conferring
ownership rights on tenants, did not altogether ignore the interests of the
smaller landlords and did in fact offer some measure of protection to those who
desired to personally cultivate the tenanted land.
The
Act was substantially amended in 1974. 'Basic holding' and 'family holding'
ceased to be defined. "Ceiling area" was defined to mean the extent
of land which the person or family was entitled to hold under s. 63. Section 5
was amended and the provisos were omitted. It was however provided by sub-sec.
2 that the prohibition against creation of tenancies or leases would not apply
to tenancies created by a soldier or a seaman. The savings in respect of a
minor widow or a minor woman under the original sec. 5 was taken away. Section
14 was omitted. Section 16 was also omitted.
Section
44 was amended. The new sub-section 1 of sec. 44 is as follows:- 1201
"44(1) All lands held by or in the possession of tenants (including
tenants against whom a decree or order for eviction or a certificate for
resumption is made or issued) immediately prior to the date of commencement of
the Amendment Act, other than lands held by them under leases permitted under
Section 5, shall, with effect on and from the said date, stand transferred to
and vest in the State Government." A new section 48 was introduced
providing for the Constitution of Tribunals, a Tribunal for each taluq consisting
of the Assistant Commissioner of the Revenue Division and four other members to
be nominated by the State Government of whom one shall be a person belonging to
the scheduled castes or scheduled tribes. No qualifications were prescribed for
the nomination of persons to membership of the Tribunal.
Sub-section
8 of section 48 provided that no legal practitioner shall be allowed to appear
in any proceeding before the Tribunal. Section 48A dealt with the procedure to
be adopted by the Tribunal in its enquiry into applications made under s. 45
for registration of a person as an occupant. Sec. 112A provided for the duties
of the Tahsildar and s. 112B provided for the duties of the Tribunal. The provision
for an appeal from the decision of the court and the further right of revision
under the amended Act were taken away and there was no right of appeal or
revision against the decision of the Tribunal. Thus, we see that the 1974
Amending Act took away the right which was saved by the original Act in favour
of the widow, unmarried woman, minor and disabled person to create a tenancy or
lease the land.
The
more important right which was taken away by the 1974 Amendment was the right
of the landlord to resume the land if he bona-fide required the land for
personal cultivation or for a nonagricultural purpose. The right to resume the
land if he bona-fide required the land for personal cultivation was denied by
the Amending Act even if the income by the cultivation of the land which he was
entitled to resume was the principal source of income for the maintenance of
the landlord.
The
principal submission of the learned counsel for the appellants was that the
1974 amendment in so far as it took away the right of a landlord to resume
possession of the tenanted land where he bonafide required the land for personal
cultivation and had no other principal source of income for his own
maintenance, was ultra wires, not with- standing its inclusion in the Ninth
Schedule, as it offended the basic structure of the Constitution. Another
submission which was 1202 made by the learned counsel was that the provision
for the constitution of a Tribunal consisting of persons with un- specified
qualifications in the place of a court was similarly ultra wires the powers of
the State Legislature. The third submission of the learned counsel was that s.
47(B) which excluded legal practitioner from appearing before the Tribunals was
in conflict with s. 30 of the Advocates' Act and had,' therefore. to yield.
It
is necessary for us to mention here that the principal Act was included in the
IXth Schedule of the Constitution on October 20, 1965 and the Amendment Act of
1974 was similarly included in the IXth the Schedule on September 7, 1974.
We
do not think that it is necessary to hark back to the decisions of this court
rendered prior to the one in Waman Rao & Ors. v. Union of India, [ 1981] 2
SCR 1. One of the petitioners who presented his case in person did argue that
Waman Rao's case to the extent that it upheld Arts. 31-A, 31-B and 31-C and to
the extent that it upheld the validity of the legislations impugned therein
required reconsideration. We do not agree that it is necessary either to
reconsider or to go behind Waman Rao for the purposes of this case.
Chandrachud, CJ. speaking for the majority of the judges of the Constitution
Bench stated their conclusions in regard to Arts. 31-A, 31-B and 31-C as
follows:- "(1) The Constitution (First Amendment) Act, 1951 which
introduced Article 31A into the Constitution with retrospective effect and
section 3 of the Constitution (Fourth Amendment) Act, 1955 which substituted a
new clause (1), sub-clauses (a) to (e), for the original clause (1) with
retrospective effect, do not damage any of the basic. or essential features of
the Constitution or its basic structure and are valid and constitutional being
within the constituent power of the Parliament.
(2)
Section 5 of the Constitution (First Amendment) Act 1951 introduced Article 3lB
into the Constitution which reads thus:
"3lB
x x x x x x x x x In Keshvananda Bharati (1973, Suppl., SCR 1) decided on April
24, 1973 it was held by the majority that Parliament has no power to amend the
Constitution so as to 1203 damage or destroy its basic or essential features or
its basic structure. We hold that all amendments to the Constitution which were
made before April 24, 1973 and by which the 9th Schedule to the Constitution
was amended from time to time by the inclusion of various Acts and Regulations
therein, are valid and constitutional. Amendments to the Constitution made on
or after April 24, 1973 by which the 9th schedule to the Constitution was
amended from time to time by the inclusion of various Acts and Regulations
therein, are open to challenge on the ground that they, or any one or more of
them, are beyond constituent power of the Parliament since they damage the
basic or essential features of the Constitution or its basic structure. We do
not pronounce upon the validity of such subsequent constitutional amendments
except to say that if any Act/Regulation included in the 9th Schedule by a
Constitutional amendment made on or after April 24, 1973 is saved by Article
31A, or by Article 31C as it stood prior to its amendment by the 42nd
Amendment, the challenge to the validity of the relevant Constitutional Amendment
by which that Act or Regulation is put in the 9th Schedule, on the ground that
the Amendment damages or destroys a basic or essential features of the
Constitution or its basic structure as reflected in Articles 14, 19 or 31, will
become otiose.
(3)
Article 31 C of the Constitution, as it stood prior to its amendment by section
4 of the Constitution (42nd Amendment) Act, 1976, is valid to the extent to
which its constitutionality was upheld in Keshavananda Bharati. Article 31C, as
it stood prior to the Constitution (42nd Amendment) Act does not damage any of
the basic or essential features of the Constitution or its basic structure.
(4)
All the Writ Petitions and Review Petitions relating to the validity of the
Maharashtra Agricultural Lands Ceiling Acts are dismissed with costs." In
the course of the submissions, the learned counsel suggested that the 1974
Amendment Act was not a law pertaining to agrarian reform; nor, it was said,
was it a law directed towards securing that the ownership and control of the
material resources of the community were so distributed as best to sub-serve
the common good or that the operation of the economic system did not result in
the concentration of 1204 wealth and means of production to the common
detriment. It was suggested that the 1974 Amendment 'Act far from setting out
to achieve these goals set out in quite opposite direction by seeking to reduce
to destitution small landlords whose sole means of livelihood was the tenanted
land which they were allowed to resume for personal cultivation. It was said
that the original Act was very fair as it recognised poverty amongst landlords
as well as poverty amongst tenants and afforded a measure of protection to the
poorer sections of the landlords. We are unable to agree with the submission
that the Amendment is not aimed at agrarian reform or at securing the
objectives mentioned in Arts. 39(b) and (c) of the Constitution. It is too late
in the day to contend that, in the existing system of economic relations,
ownership of land to the tiller of the land is not the best way of securing the
utmost utilisation of land, a material resource of the community for the common
good of the entire community.
It
is now well recognised by leading economists everywhere that in the absence of common
ownership of land and in the existing system of economic relations, the
greatest incentive for maximum production is the feeling of identity and
security which is possible only if the ownership of the land is with the
tiller. It is obviously in recognition of this principle that 'landlordism' was
sought to be totally done away with by the amendment of s. 5 of the Act, by the
omission of secs, 14 and 16 and by the amendment of s. 44. If between a
landlord who did not himself personally cultivate the land and a tenant who so
cultivated the land, the legislature preferred the cultivating tenant, we are
unable to hold that such preference is not part of a programme of agrarian
reform pursuant to the Directive Principles contained in Arts. 39(b) and (c). We
do not have the slightest doubt that the amendment was a law clearly aimed at
agrarian reform, to secure the Directive Principles contained in Arts. 39(b)
and (c). It is true that one of the conditions subject to which alone a
landlord could resume land for personal cultivation under s. 16 of the Act was
that the income from the land proposed to be cultivated by the land- lord on
resumption should be the principal source of income for the maintenance of the
landlord. But it is important to notice that the question of resumption of land
from a tenant would not arise unless a tenant was already cultivating the land.
If, therefore, a tenant is already cultivating the land and if, presumably,
that is the source of his livelihood, there is no reason why he should be
dispossessed to enable a landlord whose source of livelihood it was not until
then to make it his principal source of maintenance hereafter. We do not think that
any provision of the Amending Act offends the basic structure of the
Constitution.
In
regard to the constitution of the Tribunal, it was argued that 1205 very
important questions fell for consideration under s. 48A and it was wholly wrong
that the decision of such questions should be left, not to a judicial Tribunal,
but to a Tribunal consisting of members nominated by the State Government with
no regard for any qualification. Our attention was invited to several decisions
of the Karnataka High Court where the functioning of such iII-constituted
Tribunals was exposed and castigated. It is true that it was commented in some
of those cases that the Tribunals were functioning in a most un-judicial
manner. quite often without applying their minds at all to the questions at
issue and in some cases, in utter violation of the principles of natural justice.
We are unable to see how the mal-functioning of some of the Tribunals can
possibly vitiate the provision relating to the Constitution of the Tribunal and
the entrustment of the decision of certain issues to the Tribunal. We do not
want to enter into a discussion of the question whether a lay Tribunal cannot
function more efficiently than judicial Tribunal in resolving certain peculiar
questions. There can be no doubt that while the decision of some disputes
require a trained judicial mind to be applied to it, there are many other
questions which do not require the application of any trained judicial mind.
The disputes contemplated by s. 48A do not appear to be disputes of a nature
where the application of a trained judicial mind is absolutely essential. We
also notice that Land Tribunals have functioned very well in West Bengal and
Kerala where under the respecting State Acts more complicated questions than
the ones under s. 48A are entrusted to Land Tribunals. The failure of the Land
Tribunals to function efficiently in the State of Karnataka has been apparently
taken note of by the Legislature itself and the Act has since been amended
making provision for an appeal and revision. So much to the credit of the
Karnataka Legislature. But we do not see how the failure of some of the land
Tribunals to function efficiently can be said to be sufficient to stigmatise
wholesale, the functioning of all the Tribunals constituted under the Act and
to invalidate the provisions of the Act relating to Tribunals.
The
last submission was in regard to sub-sec. 8 of sec. 48 which prohibited legal
practitioners from appearing in proceedings before the Tribunals. The argument
was that s. 48(8) was repugnant to s. 30 of the Advocates Act, 1961 and s. 14
of the Indian Bar Councils Act. It was said that the State Legislature was not
competent to make a law repugnant to laws made by Parliament pursuant to
Entries 77 and 78 of List 1 of the 7th Schedule of the Constitution. The
submission of the learned counsel is fully supported by the judgment of a Full
Bench of High Court of Punjab and Haryana in Jaswant Kaur v. State of Haryana,
AIR 1977 Punjab & Haryana 22 1. We adopt the reasoning of 1206 the High
Court of Punjab & Haryana and direct that s. 48(8) will not be enforced so
as to prevent Advocates from appearing before the Tribunals functioning under
the Act. In regard to the decisions already rendered by the Tribunals we do not
think that it is necessary to reopen them on the ground that legal
practitioners were not allowed to appear before the Tribunals in those cases.
All the civil appeals are, therefore, dismissed,' in the circumstances without
cost.
N.P.V.
Appeals dismissed.
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