Full Judgment Text
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PETITIONER:
ATMA RAM
Vs.
RESPONDENT:
THE STATE OF PUNJAB AND OTHERS(and connected petition)
DATE OF JUDGMENT:
08/12/1958
BENCH:
SINHA, BHUVNESHWAR P.
BENCH:
SINHA, BHUVNESHWAR P.
DAS, SUDHI RANJAN (CJ)
BHAGWATI, NATWARLAL H.
SUBBARAO, K.
WANCHOO, K.N.
CITATION:
1959 AIR 519 1959 SCR Supl. (1) 748
CITATOR INFO :
R 1960 SC 796 (3)
R 1960 SC1080 (17,69,75)
E 1961 SC 954 (23)
R 1962 SC 137 (8)
R 1962 SC 694 (26,27,67)
R 1962 SC 723 (42)
R 1965 SC 632 (4)
R 1967 SC1110 (11,12)
R 1967 SC1373 (40)
R 1972 SC 425 (31)
F 1972 SC 486 (13)
R 1985 SC 236 (46)
RF 1988 SC1708 (15)
ACT:
Land Tenure-Modification of landlord’s rights in land-Enact-
ment-Competence of State Legislature-Constitutional
validity--Punjab Security of Land Tenure Act (Punj. X of
1953),as amended by Act XI of 1955, s. 18-Constitution of
India, Arts. 14, 19, 31, 31A, 246(3), Entry 18,List 11,
Seventh Schedule-Punjab Land Revenue Act (Punj. XVII of
1887), ss. 3(1), 3(3).
HEADNOTE:
The point in controversy in these petitions was the con-
stitutional validity of the Punjab Security of Land Tenure
Act (Punj. X Of 1953), as amended by Act XI of 1955, which
sought to "provide for the security of land-tenure and other
incidental matters ". The impugned Act which admittedly
dealt with holdings as defined by the Punjab Land-Revenue
Act, 1887, limited the- area which might be held by a land-
owner for the purpose of self-cultivation and thereby
released surplus area to be utilised for resettling ejected
tenants ; and by s. 18 conferred upon the tenants the right
to purchase from the land-owners the lands held by them and
thus themselves to become the landowners on prices which
would be below the market value. It was contended on behalf
of the petitioners, who were,landowners affected by the
impugned Act, that under Entry 18 in List II of the Seventh
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Schedule to the Constitution, the State Legislature was
incompetent to enact a law limiting the extent of the land
to be held by a land-owner and that the provisions of the
impugned Act contravened the petitioners’ fundamental rights
under Arts. 14, 19(1)(f)and 31 of the Constitution.
Held, that the contentions must fail.
The words " rights in or over land " and " land tenures
occurring in Entry 18 in List 11 of Seventh Schedule to the
Constitution were sufficiently comprehensive to include
measures of land-tenure reforms, such as the impugned Act,
that sought to limit the extent of land in cultivating
possession of the landowner in order to release larger areas
of land to be made available for cultivation by tenants and
that Entry read with Art. 246(3) of the Constitution gave
the State Legislature exclusive power to enact such
measures.
Such determination of the relation of landlord and tenant as
was contemplated by s. 18 and other provisions of the
impugned Act, which sought to convert a tenant into a land-
owner, was well within the ambit of Entry 18.
749
The United Provinces v. Mst. Atiqa Begum, [1940] F.C.R. 110
and Megh Raj v. Allah Rakhi, (1946) L.R. 74 I.A. 12,
referred to.
It was beyond doubt that the impugned Act substantially
modified the land-owner’s rights to hold and dispose of his
property in any estate or portion thereof and thus fell
within the purview of Art. 31A(1)(a) of the Constitution and
was immune from any attack on the ground that it contravened
Arts. 14, 19and 31 of the Constitution.
The observations made by this Court in Thakur Raghubir Singh
v. Court of Wards, Ajmer, [1953] S.C.R. 1049, in connection
with another Act, with absolutely different provisions, must
be limited to the facts of that case and were wholly
inapplicable.
Thakur, Raghubir Singh v. Court of Wards, Ajmer, [1953]
S.C.R. 1049, distinguished and held inapplicable.
The words " any estate or of any rights therein " occurring
in Art. 31A(1)(a) read in the light of Art. 31A(2) included
any kinds of rights either quantitative or qualitative in
the area encompassed by an estate or any portion of it and
thus included holdings as defined by the Punjab Land-Revenue
Act, 1887, and any shares or portions thereof.
Regard being had to the legal maxim that the greater must
include the less, it was, inappropriate to suggest that the
Constitution should have specifically mentioned "portion of
an estate" in Art. 31A if it intended to give that Article
such a comprehensive construction.
Bhagirath Ram Chand v. State of Punjab, A.I.R. 1954 Pun.
167, approved.
State of Punjab v. S. Kehar Singh, (1958) 60P.L.R. 461, dis-
approved.
Ram Narain Medhi v. The State of Bombay, [1959] SUPP. (1)
S.C.R. 489, applied.
Hukam Singh v. The State of Punjab, (1955) 57 P.L.R. 359,
referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Petitions Nos. 176, 177 and 253 of
1956; 34, 35, 51-53, 69, 70, 75, 94 & 137 of 1957 ; 34, 58,
72, 90, 92, 106, 109 & 115 of 1958.
Petitions under Article 32 of the Constitution of India for.
enforcement of Fundamental rights.
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C.B. Aggarwal and Naunit Lal, for the petitioner (In
Petition No. 176 of 1956).
Achhru Ram and Naunit Lal, for the petitioner (In Petition
No. 177 of 56).
Naunit Lal, for the petitioner (In Petitions Nos. 253/ 56;
34, 35, 51-53, 69, 70, 75, 94 and 137/57; 34, 58, 92, 106,
109 & 115/58).
750
Radhey Lal Aggarwal and A. G. Ratnaparkhi, for the
petitioner (In Petition No. 90/58).
H. N. Sanyal, Additional Solicitor-General of India,
S.M. Sikri, Advocate-General for the State of Punjab,
Gopal Singh and T. M. Sen, for respondent No. 1 (In Petition
No. 176/56).
S.M. Sikri, Advocate General for the State of Punjab, and
T. M. Sen, for respondent No. 1 (In Petitions Nos. 177 &
253/56; 34, 35, 51-53, 69, 70, 75, 94 & 137/57; 34, 58, 72,
90, 92, 106, 109 & 115/58).
R.S. Gheba, for respondent No. 3 (In Petition No. 90/58).
Dipak Dutta Chowdhury, for respondent No. 3 (In Petition No.
176/56).
Udai Bhan Chowdhury, for respondent No. 7 (In Petition No.
59/57) and respondent No. 3 (In Petition No. 70/57).
Harnam Singh and Sadhu Singh, for the Interveners (In
Petition No. 176/56).
1958. December 8. The Judgment of the Court was delivered
by
SINHA, J.-These petitions under Art. 32 of the Constitution
impugn the constitutionality of the Punjab Security of Land
Tenure Act (Punj. X of 1953) (which will be referred to
hereinafter as the Act), as amended by Act XI of 1955. The
petitioners are land-owners of the lands affected by the
provisions of the impugned Act. The State of Punjab and its
officers, besides persons claiming benefits under the Act,
are the respondents in these several petitions.
The impugned Act has a history which may shortly be set out.
With a view to providing for the security of tenure to
tenants, the Punjab Tenants (Security of Tenure) Ordinance
IV of 1950, was promulgated with effect from May 13, 1950.
That Ordinance was replaced by the Punjab Tenants (Security
of Tenure) Act XII of 1950, which came into force on
November 6, 1950, on the date on which it was first
published in the Punjab Government Gazette. The Act
prescribed a limit of one hundred standard acres of land
(equivalent to two hundred ordinary acres) which could be
751
held by a land-owner for his " self-cultivation "; and it
was termed" permissible limit "-(s. 2(3) ). Any landowner
having land in excess of the " permissible limit was
authorized by s. 3 to select for " self-cultivation land out
of the entire area held by him in the State of. Punjab, as
land-owner, and reserve it for his own use to the extent of
the " permissible limit ". This " right of reservation " had
to be exercised, first, in respect of land in his self-
cultivation; and if the extent of such land fell short of
the " permissible limit ", he could, under s. 4, make up the
deficiency by ejecting tenants under him in respect of such
lands as fell within his reserved area. Section 5 fixed the
minimum period of tenancy as four years, subject to certain
exceptions set out in s. 6. These were some of the salient
features of the Act of 1950, which itself was amended by the
Punjab Tenants (Security of Tenure) Act (Punj. V of 1951),
which came into force on December 24, 1951. By the amending
Act, the " permissible limit " was reduced to 50 standard
acres equivalent to 100 ordinary acres, and the minimum
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period of tenancy was raised to five years. It also made
provisions for preferential right of pre-emption-(s. 12A),
and conferred a right of purchase on the tenant in respect
of land in his possession-(s. 12B), subject to certain
exceptions(s. 12C). Another legislation in this series was
the Prevention of Ejectment (Temporary Powers) Ordinance No.
1 of 1952, which came into force on June 11, 1952. Then,
came the Punjab Security of Land Tenure Act (Punj. X of
1953), now impugned, which repealed the aforesaid Acts XII
of 1950 and V of 1951. It came into force on April 15,
1953. This Act itself was amended by Act LVII of 1953 and
Act XI of 1955. Though. this Act has undergone subsequent
amendments in 1957 and 1958, we are not concerned with those
amendments, because they came into existence after this
Court was moved under Art. 32 of the Constitution. We are
concerned with the state of the law as it stood after the
amendment of 1955, aforesaid.
Before dealing with the grounds of attack urged against the
impugned Act, it is convenient to set out,
752
in a nut-shell, the salient provisions of the Act, which
have given rise to the present controversy, and which give
an idea of the scope and nature of the legislation now under
examination. The Act has a short Preamble, namely, " to
provide for the security of land tenure and other incidental
matters ". The Act further reduces the " permissible area "
(s. 2(3) ) in relation to a landlord or a tenant, to 30
standard acres equivalent to 60 ordinary acres, thus,
releasing a larger area for re-settlement of tenants ejected
or to be ejected under the provisions of the Act. So to
say, it creates a pool of "surplus area" (s. 2(5-a)),
meaning thereby the area other than the"reserved
area"in excess of the "permissible area" as aforesaid.
"Reserved area" means the area lawfully reserved by the
landlord under the provisions of the two Acts aforesaid,
which were repealed by the Act-(s. 2(4)). The definition of
a tenant under the Act, includes a sub-tenant and a self-
cultivating lessee-(s. 2(6)). As already indicated, a
tenant also may be liable to be ejected from any area which
he holds in any capacity whatever in excess of the "
permissible area ". Section 10-A authorizes the State
Government or any officer empowered by it in this behalf, to
utilize any " surplus area " for re-settlement of tenants
ejected or to be ejected under the provisions of s. 9(1).
But a tenant inducted on to such " surplus area ", holds the
land under the land-owner, who, thus, becomes entitled to
receipt of rent from the tenant. Section 12 lays down the
maximum rent payable by a tenant. Section 17 recognizes the
rights of certain tenants to pre-empt sales or fore-closure
of land. Section 18, which formed the subject-matter of the
most vehement attack on behalf of the petitioners, confers
upon the tenants of the description given in the several
clauses of the Act, the right to purchase from the land-
owner the land held by them, subject to certain exceptions,
and subject to the payment in a lump sum or in six monthly
instalments not exceeding ten, of the purchase-price to be
determined in accordance with cls. (2) and (3) of s. 18.
Section 23 invalidates any decree or order of any. court or
authority, or a notice
753
of ejectment, which is not consistent with the provisions of
the Act. Thus, the Act seeks to limit the area which may be
held by a land-owner for the purpose of self-cultivation,
thereby, releasing " surplus area " which may be utilized
for the purpose of resettling ejected tenants, and affording
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an opportunity to the tenant to become the land-owner
himself on payment of the purchase-price which, if anything,
would be less than the market value. It, thus, aims at
creating what it calls a class of " small land-owners "
meaning thereby, holders of land not exceeding the " permis-
sible area "-(s. 2(2)). The utmost emphasis has been laid
on self-cultivation which means " cultivation by a land-
owner either personally or through his wife or children, or
through such of his relations as may be prescribed, or under
his supervision "-(s. 2(9) ).
The arguments at the Bar, on behalf of the petitioners may
be put under three main heads, namely, (1) that the
Legislature had no legislative competence to enact the Act,
(2) that the provisions of the Act contravene the
petitioners’ fundamental rights enshrined in Arts. 14,
19(1)(f) and 31 of the Constitution, and (3) that certain
specified provisions of the Act amount to unreasonable
restrictions on the petitioners’ rights to hold and dispose
of property.
At the outset, it is necessary to deal with the question of
legislative competence, which was raised on behalf of some
of the petitioners, though not on behalf of all of them.
This argument of want of legislative competence goes to the
root of the impugned Act, and if it is well-founded, no
other question need be gone into. It has been argued that
Entry 18 in List II of the Seventh Schedule to the
Constitution, should not be read as authorizing the State
Legislature to enact a law limiting the extent of the land
to be held by a proprietor or a landowner. Entry 18 is in
these words:-
" 18. Land, that is to say, rights in or over land tenures
including the relation of landlord and tenant, and the
collection of rents; transfer and alienation of agricultural
land improvement and agricultural loans; colonization."
754
It will be noticed that the Entry read along with Art.
246(3) of the Constitution, has vested exclusive power in
the State to make laws with respect to " rights in or over
land tenures including the relation of landlord and
tenant........ The provisions of the Act set out above, deal
with the landlord’s rights in land in relation to his
tenant, so as to modify the landlord’s rights in land, and
correspondingly, to expand the tenant’s rights therein.
Each of the expressions " rights in or over land " and "
land tenures ", is comprehensive enough to take in measures
of reforms of land tenures, limiting the extent of land in
cultivating possession of the land-owner, and thus,
releasing larger areas of land to be made available for
cultivation by tenants.
Counsel for some of the petitioners who challenged the
legislative competence of the State Legislature, were hard
put to it to enunciate any easily appreciable grounds of
attack against Entry 18 in List II of the Seventh Schedule.
It was baldly argued that Entry 18 aforesaid, was not
intended to authorize legislation which had the effect of
limiting the area of land which could be directly held by a
proprietor or a land-owner. It is difficult to see why the
amplitude of the words " rights in or over land " should be
cut down in the way suggested in this argument. A similar
argument was advanced in the case of The United Provinces v.
Mst. Atiqa Begum (1). In that case, the United Provinces
Regularization of Remissions Act, 1938 (U. P. XIV of 1938),
was challenged. One of the main provisions of that Act had
validated remission of rent. It had been argued that the
United Provinces Legislature was not competent to legislate
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about the remission of rent, when the relevant words in
Entry 21, relating to land in the Provincial List of the
Seventh Schedule to the Constitution Act of 1935, were "
collection of rents ". Entry 21 relating to " land " bad
added certain words by way of explanation and illustration
of the intention of the Constitution-makers, ,so as to
indicate that the word " land " was meant to be used in its
widest connotation. A member of the
(1)[1940] F.C.R. 110.
755
Full Bench of the Allahabad High Court, in his judgment
which was the subject-matter of the appeal to the Federal
Court, had come to the conclusion that Item No. 21
aforesaid, including the words " collection of rents ", had
not authorized the Provincial Legislature to validate
remission of rent. That conclusion was not upheld by the
Federal Court which held that remission of rent was a matter
covered by Item No. 21, and it was, therefore, within the
competence of the Provincial Legislature to enact the
impugned Act; and Gwyer, C. J., in the course of his
judgment observed that the Items in the several lists of the
Seventh Schedule, should not be read in a narrow or
restricted sense, and that each general word should be held
to extend to all ancillary and subsidiary matters which
could fairly’ and reasonably be said to be comprehended in
it.
The same Item 21 in List II (Provincial List) of the Seventh
Schedule to the Constitution Act of 1935, came up for
consideration before the Judicial Committee of the Privy
Council on appeal from the Federal Court of India in Megh
Raj v. Allah Rakhi (1), affirming the judgment of the Lahore
High Court. In that case, the Punjab Restitution of
Mortgaged Lands Act (Punj. IV of 1938) had been challenged
as ultra vires. By that Act, the Legislature had provided
for redemption of mortgages on terms much less onerous than
the terms of the mortgage-deeds. Their Lordships of the
Judicial Committee of the Privy Council repelled the
contention raised on behalf of the appellants that the words
of Item No. 21, were not wide enough to comprehend the
relationship of mortgagor and mortgagee in respect of
agricultural land. Their Lordships observed that Item 21
aforesaid, forming a part, as it did, of the Constitution,
should, on ordinary principles, receive the widest
construction, unless, for some reasons, it is cut down
either by the terms of that item itself, or by other parts
of the Constitution, which have, naturally, to be read as a
whole; and then proceeded to make the following very
significant observations :-
(1) (1946) L.R. 74 I.A. 12.
756
" As to item 21, " land ", the governing word, is followed
by the rest of the item, which goes on to say, ’that is to
say’. These words introduce the most general concept-’
rights in or over land’. Rights in land’ must include
general rights like full ownership or leasehold or all such
rights. Rights over land’ would include easements or other
collateral rights, whatever form they might take. Then
follow words which are not words of limitation but of expla-
nation or illustration, giving instances which may furnish a
clue for particular matters: thus there are the words
relation of landlord and tenant, and collection’ of rents ".
Thus, their Lordships concluded that the Item 21 relating to
land, would include mortgages as an incidental and ancillary
subject.
Another branch of the same argument was that Entry 18 could
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not cover the determination of the relation of landlord and
tenant, which is envisaged by some of the provisions of the
Act, particularly s. 18, which has the effect of converting
the tenant into a land-owner himself, by virtue of the
purchase. This argument is also disposed of by the judgment
of the Federal Court in United Provinces v. Atiqa Begum (1).
It was next contended that Entry 18 has got to be read with
Art. 19(5), in order to determine the legislative competence
in enacting the impugned statute. In other words, it was
contended that cl. (5) of Art. 19 of the Constitution, is in
the nature of a proviso to the Entry ; and that the Entry so
read along with Art. 19(5), lays down the test of the
legislative competence. This argument is easily disposed.
of with reference to the provisions of Art. 31-A of the
Constitution. If it is held that the provisions of the
impugned statute lay down the law for the modification of
rights in estates, as defined in sub-Art. (2) of Art. 31A,
none of the grounds of attack founded on any of the provi-
sions of Arts. 14, 19 or 31, can avail the petitioners. As
will presently appear, the Act lays down provisions which
are in the nature of modifications of rights in estates
within the meaning of Art. 31A(1). That being
(1) (1940) F.C.R. 110.
757
so, Art. 19(5) is wholly out of the way in this case. In
view of all these considerations, it must be held that there
is no legal foundation for the contention that the impugned
Act is beyond the legislative competence of the State
Legislature.
Having dealt with the question of legislative competence, we
have to deal with the several contentions raised on behalf
of the petitioners, with reference to the provisions of
Arts. 14, 19 and 31 of the Constitution. On this part of
the case, it has rightly been conceded on behalf of the
petitioners that if the impugned Act comes within the
purview of any of the clauses of Art. 31A, the law will be
immune from attack on any of the grounds based on the
provisions of Arts. 14, 19 and 31. But it has been argued
that the provisions of Art. 31A(1)(a), which are admittedly
the only portions of the Article, which are relevant to the
present inquiry, are not attracted to the impugned Act. It
has been conceded on behalf of the respondents that the Act
does not provide for the acquisition by the State of any
estate or of any rights in any estate. Hence, the crucial
words which must govern this part of the controversy, are
the words " the extinguishment or modification of any such
rights "; that is to say, we have to determine whether or
not the impugned Act provides for the extinguishment or
modification of any rights in " estates ". Art. 31A(2)
defines what the expression II estate " used in Art. 3 1 A
means. According to that definition, " the expression "
estate " shall, in relation to any local area, have the same
meaning as that expression or its local equivalent has in
the existing law relating to land tenures in force in that
area, and shall also include any jagir, inam or Muafi or
other similar grant and in the States of Madras and Kerala,
any janmam right". It is common ground that we have to turn
to the definition of an estate, as contained in the Punjab
Land-Revenue Act XVII of 1887. Section 3(1) of that Act has
the following definition:-
(1) " estate " means any area-
(a) for which a separate record-of-rights has been made; or
758
(b)which has been separately assessed to land revenue, or
would have been so assessed if the land revenue had not been
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released, compounded for or redeemed ; or
(c)which the (State) Government may, by general rule or
special order, declare to be an estate ".
Clause (c) of the definition is out of the way, because it
has not been claimed that the State Government has made any
declaration within the meaning of that clause. Estate,
therefore, for the -purposes of the present controversy,
means any area or -which a separate record-of-rights has
been made, or which has been separately assessed to land
revenue (omitting the unnecessary words). In this
connection, it is also necessary to refer to the definition
of a holding in s. 3(3) in the following terms:-
"(3) ’holding" means a share or portion of an estate held by
one landowner or jointly by two or more landowners ".
It was not controverted at the Bar that in Punjab, there are
very few estates as defined in s. 3(1), quoted above, in the
sense that one single land-owner is seized and possessed of
an entire estate which is equated with a whole village. In
other words, in Punjab, an estate and a village are inter-
changeable terms, and almost all villages are owned in
parcels, as holdings by co-sharers, most likely, descendants
of the holder of a whole village which came to be divided
amongst the co-sharers, as a result of devolution of
interest. The parties were also agreed that the impugned
Act deals with holdings, as defined in the Land-Revenue Act,
or shares or portions thereof. The argument on behalf of
the petitioners to get over the provisions of Art. 31A, is
that the Act does not deal with any estate or any rights
therein, but only with holdings or shares or portions
thereof. This argument proceeds on the assumption that
holdings are not any rights in an estate. If the
petitioners are right in their contention that the immunity
granted by Art. 31A of the Constitution, is available only
in respect of entire estates and not portions of estates,
then the argument on behalf of the respondents that the Act
is saved by the
759
provisions of that Article fails in limine. If, on the
other hand, it is held that Art. 31A applies not only to
entire estates or any rights therein, but also to shares or
portions of an estate or rights therein, then all the
arguments advanced on behalf of the petitioners, founded on
the provisions of Arts 14, 19 and 31, are thrown overboard.
Therefore, it becomes necessary to consider the amplitude of
the expression " any estate or of any rights therein " in
Art. 31A(1)(a). Rights in an estate may be either
quantitative or qualitative. That is to say, rights in an
estate may be held by persons having different qualities of
rights in lands constituting an estate, as a result of sub-
infeudation. Generally speaking and omitting all references
to different kinds of land tenures prevailing in different
parts of India, it may be said that at the apex of the
pyramid, stands the State. Under the State, a large number
of persons variously called proprietors, zamindars,
malguzars, inamdars and jagirdars, etc., hold parcels of
land, subject to the payment of land revenue designated as
peshkash, quit-rent or malguzari, etc., representing the
Government demands by way of land-tax out of the usufruct of
the land constituting an estate, except where Government
demands had been excused in whole or in part by way of
reward for service rendered to the State in the past, or to
be rendered in the future. An estate, thus, is an area of
land which is a unit of revenue assessment, and which is
separately entered in the Land Revenue Collector’s register
of revenue-paying or revenue-free estates. A single estate,
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unless governed by the Rule of Primogeniture, would, in
course of time, be hold by a number of persons in the same
rights as co-sharers in the estate. Those several co-
sharers are all jointly and severally liable for the payment
of the Government demands, if any, though, by an arrangement
with the Revenue Department, they may have had a
distribution made of the total Government demands as payable
in respect of aliquot portions of the estate. Generally
speaking, in the first instance, each sharer in an estate is
liable to pay his portion of the landrevenue, but if, for
any reasons, the Government
760
demands cannot be realized from any defaulting share
primarily liable for them, the entire estate, including the
shares of those who may not be the defaulting proprietors,
is liable to be sold or otherwise dealt with for the
realization of those demands. Thus, the unity of assessment
of land revenue in respect of the entire estate remains
intact. In actual practice, the holder of each specified
portion or share of an estate, holds his portion for his own
exclusive use and occupation. Such a sharer in an estate in
Punjab is known as the land-owner of a " holding ". But such
a holding still continues to be a portion or a share of the
estate out of which it has been carved. Such a division of
an estate is quantitative or a vertical division of an
estate. But there may also be a horizontal or qualitative
division of the lands in an estate, effected by the process
of sub-infeudation. Continuing the illustration of the
pyramid, generally speaking, the lands in an estate may in
their entirety or in portions, be let out to what, in
Eastern India, are known as tenure holders, for example,
patnidars, in areas covered by the Permanent Settlement.
Tenure-holders were persons who took lands of an estate not
necessarily for the purpose of self-cultivation, but also
for settling tenants on the land, and realizing rents from
them. These patnidars may have darpatnidars under them, and
darpatnidars sepatnidars, and in this way, the sub-
infeudation went on. All these classes are included within
the terms " tenure-holders ", " sub-proprietors " or "
under-proprietors ". The persons who are inducted on to the
land for bringing it under their direct cultivation, are
generally known in Eastern India as raiyats with rights of
occupancy in the land held by them. But raiyats, in their
turn, may have inducted tenants under them in respect of the
whole or a portion of their holding. The tenant holding
under a raiyat is known as an under-raiyat, and an under-
raiyat may induct a tenant under himself, and he will be an
under-raiyat of the second degree. Thus, in each grade of
holders of land, in the process of subinfeudation described
above. the holder is a tenant under his superior holder, the
landlord, and also the
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landlord of the holder directly holding under him. Thus, in
Eastern India, the interest of intermediaries between the
proprietor of an " estate " at the top and the actual tiller
of the soil at the bottom, is known as that of a " tenure-
holder ", and the interest of tenants other than tenure-
holders, is given the generic name of a " holding ". A
holding in Eastern India, thus, indicates the interest of
the actual tiller of the soilraiyat or under-raiyat-unlike
the " holding " in Punjab where, as indicated above, its
signifies the interest of the holder of a share in an
estate. Thus, holdings in Punjab are vertical divisions of
an estate; whereas in Eastern India, they represent a
horizontal division, connoting a lesser quality of an estate
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in land than the interest of a tenure-holder in his tenure,
or of a land-owner in his estate or portion of an estate.
It is not necessarily true that there should be intermedia-
ries in every estate or a portion of an estate. Very often,
the holder of an estate may be holding his entire estate
directly in his possession by way of khudkasht, zeerat,
kamath or neezjote, or it may be that the proprietor has
only raiyats under him without the intermediation of tenure-
holders, and the raiyats may not have any under-raiyats
under them. The process of sub-infeudation described above,
naturally, varies with the size of the estate. It appears
to be common ground in this case that in Punjab, an estate
means the whole village, whereas in Eastern India, an estate
may comprise a whole district or only a cluster of villages,
or a single village, or even a part of a village. The
larger the size of an estate, the greater the process of
sub-infeudation and vice versa. In Punjab, as there was no
permanent settlement of Revenue as in Bengal, Bihar, Orissa
and other parts of Eastern India, the unit of revenue
assessment has been the village. Thus, a holding in Punjab
means a portion of a village either big or small. That
portion may be in the direct possession of the landowner
himself, or he may have inducted tenants on a portion or the
whole of his holding. The interest of the tenant in Punjab,
appears to have been a precarious tenure, even more precari-
ous than that of an under raiyat in Eastern India. The
96
762
Punjab Legislature, realising that the interest of a tenant
was much too precarious for him to invest his available
labour and capital to the fullest extent so as to raise the
maximum quality and quantity of money crops or other crops,
naturally, in the interest of the community as a whole, and
in implementation of the Directive Principles of State
Policy, thought of granting longer tenures, and as we have
seen above, the period has been progressively increased
until we arrive at the stage of the legislation now
impugned, which proposes to create a large body of small
land-owners who have a comparatively larger stake in the
land, and consequently, have greater impetus to invest their
labour and capital with a view to raising the maximum
usufruct out of the land in their possession.
Keeping in view the background of the summary of land
tenures in Punjab and elsewhere, we have to construe the
amplitude of the crucial words " any estate or of any rights
therein " in Art. 31A (1) (a). Soon after the coming into
effect of the Constitution, the different States in India
embarked upon a scheme of legislation for reforming the
system of land-holding, so as (1) to eliminate the
intermediaries, that is to say, those who hold interest in
land in between the State at the apex and the actual tillers
of the soil-in other words, to abolish the class of rent-
receivers, and (2) to create a large body of small
landholders who have a permanent stake in the land, and who
are, therefore, interested in making the best use of it. As
the connotation of the term " estate " was different in
different parts of the country, the expression " estate "
described in el. (2) of Art. 31 A, has been so broadly
defined as to cover all estates in the country, and to cover
all possible kinds of rights in estates, as shown by sub-cl.
(b) of cl. (2) of Art. 31A, which is in these terms:
shall include any rights vesting in a proprietor, sub-
proprietor, under proprietor, tenure-holder (raiyat, under-
raiyat) or other intermediary and any rights or privileges
in respect of land revenue."
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The expression " rights " in relation to an estate has been
given an all inclusive meaning, comprising both
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what we have called, for the sake of brevity, the "
horizontal " and " vertical " divisions of an estate. A
proprietor in an estate may be the proprietor holding the
entire interest in a single estate, or only a co-sharer
proprietor. The provisions aforesaid of Art. 31A, bearing
on the construction of the expression " estate " or "rights"
in an estate, have been deliberately made as wide as they
could be, in order to take in all kinds of rights-
quantitative and qualitative-in an area co-extensive with an
estate or only a portion thereof. But it has been suggested
that the several interests indicated in sub-cl. (b), quoted
above, have been used with reference to the area of an
entire estate, but knowing as we do, that a raiyat’s or an
under raiyat’s holding generally is not co-extensive with
the area of an entire estate but only small portions
thereof, it would, in our opinion, be unreasonable to hold
that the makers of the Constitution were using the
expression " estate " or " rights " in an estate, in such a
restricted sense. Keeping in view the fact that Art. 31A
was enacted by two successive amendments-one in 1951 (First
Amendment), and the second in 1955 (Fourth Amendment)-with
retrospective effect, in order to save legislation effecting
agrarian reforms, we have every reason hold that those
expressions have been used in their widest amplitude,
consistent with the purpose behind those amendments. A
piece of validating enactment purposely introduced into the
Constitution with a view to saving that kind of legislation
from attacks on the ground of constitutional invalidity,
based on Arts. 14, 19 and 31, should not be construed in a
narrow sense. On the other hand, such a constitutional
enactment should be given its fullest and widest effect,
consistently with the purpose behind the enactment,
provided, however, that such a construction does not involve
any violence to the language actually used.
Another branch of the same argument was that if the makers
of the Constitution intended to include within the purview
of Art. 31A, not only entire estates but also portions
thereof, nothing would have been easier than to say so in
terms, and that in the absence of any specific mention of "
portions of an estate
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we should not read that article as covering " -portions of
an estate " also. In our opinion, there is no substance in
this contention, because they must be attributed full
knowledge of the legal maxim that " the greater contains the
less "-Omne Majus continet in se minus. In this connection,
our attention was invited to the decision of a Full Bench of
the Punjab High Court in the case of State of Punjab v. S.
Kehar Singh (1), to the effect that a holding being a part
of an estate, was not within the purview of Art. 31A of the
Constitution. In this connection, it is necessary to state
the conflict of views in that High Court itself. In the
case of Bhagirath Ram Chand v. State of Punjab (2), the
validity of the very Act impugned before us, was challenged
on grounds based upon Articles 14, 19 and 31 of the
Constitution. The learned Judges constituting the Full
Bench, unanimously held that the impugned Act did not
infringe those provisions of the Constitution, and the
restrictions on the right of land-holding, imposed by the
Act, were reasonable, and that the classification did not
exceed the permissible limit. But they also held that the
Act was saved by Art. 31A of the Constitution, which applied
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equally to an entire estate or to a portion thereof.
Besides giving other reasons, which may not bear close
scrutiny, they made specific reference to the doctrine that
the whole includes the part. Thus, the Full Bench
specifically held that Art. 31A of the Constitution applied
equally to portions of estates also. This decision of the
Full Bench was followed by a Division Bench of the same High
Court, consisting of Bhandari, C. J., and Dulat, J., in the
case of Hukam Singh v. The State of Punjab (3). That Bench
was concerned with the provisions of another Act Punjab
Village Common Lands (Regulation) Act, 1954. In that case,
the Division Bench, naturally, followed the decision of the
Full Bench in so far as it had ruled that the I whole’
includes the part, and that where an Act provides for rights
in an estate, it provides for rights in a part of an estate
also. The later Full
(1) (1958) 60 P.L.R- 461. (2) A.I.R. 1954 Pun. 167.
(3) (1955) 57 P.L.R. 359.
765
Bench case referred to above, was decided by three Judges,
including Bhandari, C. J., who agreed with the judgment of
the Court delivered by Grover, J. Perhaps, the better course
would have been to constitute a larger Bench, when it was
found that a Full Bench of three Judges, was inclined to
take a view contrary to that of another Full Bench of equal
strength. Such a course becomes necessary in view of the
fact that otherwise the subordinate courts are placed under
the embarrassment of preferring one view to another, both
equally binding upon them. In our opinion, the view taken
by the earlier Full Bench is the correct one. The learned
Chief Justice who was a party to both the conflicting views
on the same question, has not indicated his own reasons for
changing his view. The Full Bench has accepted the force of
the legal maxim that the greater contains the less, referred
to above, but has not, it must be said with all respect,
given any good reasons for departing from that well-
established maxim. The judgment of the Full Bench on this
part of the case is based entirely upon the definition of an
estate, as contained in the Punjab Land Revenue Act, set out
above. It has not stopped to consider the further question
why a holding, which is a share or a portion of an estate,
as defined in the Punjab Act, should not partake of the
characteristics of an estate. Keeping in view the
background of the legislative history and the objective of
the legislation, is there any rational reason for holding
that the makers of the Constitution thought of abolishing
only intermediaries in respect of an area constituting one
entire estate but not of a portion thereof ? On the other
hand, as indicated above, they have used the expression "
estate" in an all-inclusive sense. They have not stopped at
that; they have also added the words " or any rights therein
". The expression " rights " in relation to an estate again
has been used in a very comprehensive sense of including not
only the interests of proprietors or sub-proprietors but
also of lower grade tenants, like raiyats or under-raiyats,
and then they added, by way of further emphasizing their
intention, the expression " other intermediary ", thus,
clearly showing that
766
the enumeration of intermediaries was only illustrative and
not exhaustive. If the makers of the Constitution have,
thus, shown their intention of saving all laws of agrarian
reform, dealing with the rights of intermediaries, whatever
their denomination may be, in our opinion, no good reasons
have been adduced in support of the view that portions or
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shares in an estate are not within the sweep of the
expression " or any rights therein ". A recent decision of
this Court in the case of Ram Narain Nedhi v. The State of
Bombay (1) dealt with the constitutionality of the Bombay
Tenancy and Agricultural Lands (Amendment) Act, 1956, which
contains similar provisions with a view to doing away with
intermediaries, and establishing direct relationship between
the State and tillers of the soil. In that case also, the
contention had been raised that the expression " estate "
had reference to only alienated lands and not to unalienated
lands, and this Court was invited to limit the meaning of
the expression in the narrower sense. This Court repelled
that contention in these words:-
the context of the Code is thus clear and unambiguous as
comprising both the types of lands, there is no reason why a
narrower construction as suggested by the petitioners should
be put upon the expression " estate................... Even
if there was any ambiguity in the expression, the wider
significance should be adopted in the context of the
objectives of the Act as stated above."
These observations apply with full force to the contention
raised on behalf of the petitioners in the present cases
also.
Another branch of the same argument as to why the provisions
of Art. 31A do not apply to the Act, is that the Act did not
have the effect of either extinguishing or modifying any
rights in any estate, assuming that the expression " estate
" includes reference also to parts of an estate. In this
connection, it is contended that the provisions of the Act
impugned in these cases, did not amount to the
extinguishment of
(1) [1959] SUPP. (1) S.C.R. 489.
767
the interest of the land-owners in estates or portions
thereof, and that what the Act did was to transfer some of
the rights of the land-owners to their tenants. In this
connection, reliance was placed on the observations of this
Court in the case of Thakur Raghubir Singh v. Court of
Wards, Ajmer (1), where Mahajan, J. (as he then was,
speaking for the Court, observed that the expressions "
extinguishment " and " modification " used in Art. 31A of
the Constitution, meant extinguishment or modification
respectively of a proprietary right in an estate, and should
not include, within their ambit, a mere suspension of the
right of management of an estate for a time definite or
indefinite. Those observations must be strictly limited to
the facts of that case, and cannot possibly be extended to
the provisions of Acts wholly dissimilar to those of the
Ajmer Tenancy and Land Records Act, XLII of 1950, which was
the subject-matter of the challenge in the case then before
this Court. This Court held, on a construction of the
provisions of that Act, that they only suspended the right
of management but did not amount to any extinguishment or
modification of any proprietary rights in an estate. The
provisions of the Act then under consideration of this
Court, have absolutely no resemblance to those of the Act
now before us, and it is impossible to put a similar
interpretation on these provisions. In the recent decision
of this Court (not yet reported*), this Court had been
invited to apply the observations of this Court referred to
above, to the provisions of the Bombay Act. It was pointed
out in that case that those observations of Mahajan, J. (as
he then was), must be read as limited to an Act which only
brings about a suspension of the right of management of an
estate, and could not be extended to the provisions of an
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Act which either extinguishes or modifies certain rights of
a proprietor in an estate or a portion thereof.
In this connection, it was further argued that extin-
guishment of a right, does not mean substitution of
(1) [1953] S.C.R. 1049, 1055, 1056.
Since reported as Sri Ram Narain Modhi v. The State of
Bombay, [1959] SUPP (1) S.C.R. 489.
768
another person in that right, but total annihilation of that
right. In our opinion, it is not necessary to discuss this
rather metaphysical argument, because, in our opinion, it is
enough for the purpose of this case to bold that the
provisions of the Act, amount to modification of the
landowner’s rights in the lands comprised in his " estate "
or " holding ". The Act modifies the land-owner’s
substantive rights, particularly, in three respects, as
indicated above, namely, (1) it modifies his right of
settling his lands on any terms and to anyone he chooses;
(2) it modifies, if it does not altogether extinguish, his
right to cultivate the " surplus area" as understood under
the Act; and (3) it modifies his right of transfer in so far
as it obliges him to sell lands not at his own price but at
a price fixed under the statute, and not to any one but to
specified persons, in accordance with the -provisions of the
Act, set out above. Thus, there cannot be the least doubt
that the provisions of the Act, very substantially modi the
land-owner’s rights to hold and dispose of his property
estate or a portion thereof. It is, therefore clear that
the provisions of Art. 31A save the impugned Act from any
attack based on the provisions of Arts. 14, 19 and 31 of
the Constitution. That being so, it is not necessary to
consider the specific -provisions of the Act, which, it was
contended, were unreasonable restrictions on the land-
owner’s rights to enjoy his property, or whether he had
been unduly discriminated against,, or whether the
compensation,if any, provided for under the Act, was
illusory or, at any rate, inadequate. Those grounds of
attack are not available to the petitioners. In the result,
all these petitions are dismissed with costs, the State of
Punjab and its officers being entitled to only one set of
hearing fees in all the petitions.
Petitions dismissed.
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