Full Judgment Text
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PETITIONER:
AMBIKA PRASAD MISHRA ETC.
Vs.
RESPONDENT:
STATE OF U.P. AND ORS. ETC.
DATE OF JUDGMENT09/05/1980
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
CHANDRACHUD, Y.V. ((CJ)
BHAGWATI, P.N.
TULZAPURKAR, V.D.
SEN, A.P. (J)
CITATION:
1980 AIR 1762 1980 SCR (3)1159
1980 SCC (3) 719
CITATOR INFO :
R 1981 SC 271 (66)
F 1988 SC1194 (9)
RF 1990 SC1480 (52)
RF 1990 SC1789 (96)
ACT:
Uttar Pradesh Imposition of Ceiling on Land Holdings
Act, 1960-Constitutional Validity-Value of stare decisis-
vis-a-vis judicial review.
HEADNOTE:
Dismissing the appeals and the Writ Petitions, the
Court
^
HELD: (1).-It is fundamental that the nation’s
Constitution is not kept in constant uncertainty by judicial
review every season because it paralyses, by perennial
suspense, all legislative and administrative action on vital
issues deterred by the brooding interest of forensic blow-
up. This, if permitted, may well be a kind of judicial
destabilisation of State action too dangerous to be indulged
in save where national crisis of great moment to the life,
liberty and safety of this country and its millions are at
stake, or the basic direction of the nation itself is in
peril of a shake up. The decision in Kesavananda Bharati’s
case, therefore, upholding the vires of Article 31A in
unequivocal terms binds the court on the simple score of
stare decisis and the constitutional ground of Article 141.
Further, fatal flaws silenced by earlier rulings cannot
survive after death because a decision does not lose its
authority "merely because it was badly argued, inadequately
considered and fallaciously reasoned". And none of these
misfortunes can be imputed to Bharati’s case. [1164 C-G,
1165 C-D]
(2). The sweep of Article 31A is wide and indubitably
embraces legislation on land ceilings. Equitable
distribution of lands, annihilation of monopoly of ownership
by imposition of ceiling and regeneration of the rural
economy by diverse planning and strategies are covered by
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the armour of Article 31A. Article 31A repulses, therefore,
all invasions on ceiling legislation armed with Articles 14,
19 and 31. [1165 D-E, 1166 D-E]
Ranjit Singh and ors. v. State of Punjab and Ors.
[1965] 1 S.C.R. 82, State of Kerala and Anr. v. The Gwalior
Rayon Silk Manufacturing (Weaving) Co. Ltd. etc. [1974] 1
S.C.R. 671, reiterated.
(3). The decision in Maneka Gandhi’s case is no
universal nostrum or cure all. Nor can it be applicable to
the land reform law which is in another domain of
constitutional jurisprudence and quite apart from personal
liberty in Article 21. To contend that land reform law, if
unreasonable violates Article 21 as expansively construed in
Maneka Gandhi case is incorrect. [1168 E-G]
(4). Section 5(6) d the U.P. Imposition of Ceiling on
Land Holdings Act, 1960 is fair, valid and not violative of
Article 19(1)(f) of the Constitution. There is no blanket
ban by it but only qualified invalidation of certain
sinister assignments etc. There is nothing in this section
which is morally wrong nor is such an embargo which comes
into force only on a well recognised date not from an
arbitrarily retrospective past constitutionally anathematic.
Article 19(1)(f) is not absolute in operation and is
subject, under Article 19(6), to
1160
reasonable restrictions such as the one contained in Section
5(6). Further it is perfectly open to the legislature as
ancillary to its main policy to prevent activities which
defeat the statutory purpose, to provide for invalidation of
such action. When the alienations are invalidated because
they are made after a statutory date fixed with a purpose,
there is sense in this prohibition. Otherwise, all the lands
would have been transferred and little would have been left
by way of surplus. [1169 A-B, D, F-G, 1170 C, E-F]
(5). Articles 14 and 15 and the humane spirit of the
Preamble rebel against the defacto denial of proprietory
personhood or womanhood. But this legal sentiment and jural
value must not run riot and destroy the provisions which do
not discriminate between man and woman qua man and woman but
merely organise a scheme where life realism is legislatively
pragmatised. Such a scheme may marginally affect gender
justice but does not abridge, wee-bit, the rights of women.
If land-holding and ceiling thereon are organised with the
paramount purpose of maximizing surpluses without maiming
women’s ownership, any plea of sex discrimination as a means
to sabotage what is socially desirable measure cannot be
permitted.. [1173 D-F]
From a reading of Section 3(7) read with Section S(3)
it is clear that no woman’s property is taken away any more
than a man’s property. Section 5(3) does not confer any
property on an adult son nor withdraw any property from
adult daughter. Legal injury can arise only if the
daughter’s property is taken away while the son’s is
retained or the daughter gets no share while the son gets
one. The legislation has not done either. [1171 G, 1173 F,
H, 1174 C-D]
(6). Section 3(17) of the Act is not discriminatory
Land does not offend Articles 14 & 15 of the Constitution.
True, Section 3(17) makes the husband a tenure holder even
when the wife is the owner. This is a legislative device for
simplifying dealings and cannot therefore be faulted. [1174
E, F-G]
(7). Neither ceiling proceedings abate nor taking
surplus land from the tenure holder is barred under the
provisions of Section 4 of the U.P. Consolidation of
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Holdings Act, 1953 read with Section 5(2) of the Ceiling
Act. [1177 C]
The whole scheme of consolidation of holdings is to
restructure agrarian landscape of U.P. so as to promote
better farming and economic holdings by ’eliminating
fragmentation and organising consolidating. No one is
deprived of his land. What happens is, his scattered bits
are taken away and in lieu thereof a continuous
conglomeration equal in value is allotted subject to minimal
deduction for community use and better enjoyment. Whatever
land belongs to the tenure holder at the time when
consolidation proceedings are in an on-going stage, may or
may not belong to him after the consolidation proceedings
are completed. Alternative allotments may be made and so the
choice that he may make before the prescribed authority for
the purpose of surrendering surplus lands and preserving
’permissible holding’ may have only tentative value. But
this factor does not seriously prejudice the holder. While
he chooses the best at the given time the Consolidation
Officer will give him its equivalent when a new plot is
given to him in tho place of the old. There is no diminution
in the quantum of land and quality of land since the object
of consolidation is not deprivation but mere substituting of
scattered pieces with a consolidated plot. The tenure holder
may well exercise his option before the prescribed officer
and if, later, the Consolidation Officer takes away there
lands, he will allot a real equivalent thereof to the tenure
holder elsewhere. There is no reduction or damage or other
prejudice by this process of statutory exchange. [1177 C-G]
1161
When land is contributed for public purposes
compensation is paid in that behalf, and in the event of
illegal or unjust orders passed, appellate and revisory
remedies are also provided. On such exchange or transfer
taking place, pursuant to the finalisation of the
consolidation scheme, the holding, upto the ceiling
available to the tenure-holder, will be converted into the
new allotment under the consolidation scheme. Thus there is
no basic injustice nor gross arbitrariness in the
continuance of the land reforms proceedings even when
consolidation proceedings are under way. [1178 B-D]
Agricultural & Industrial Syndicate Ltd. v. State of
U.P. and Ors., [1974] 1 S.C.R. 253, distinguished.
Khetarpal Singh v. State of U.P. (High Court) [1975]
Recent Decisions p. 366, approved.
8. There is no time-wise arbitrariness vitiating the
statute in that various provisions in the Act were brought
into force on random dates without any rhyme or reason, thus
violating, from the temporally angle, Article 14. It is true
that neither the legislature nor the Government as its
delegate can fix fanciful dates for effectuation of
provisions affecting the rights of citizens. Even so, a
larger latitude is allowed to the State to notify the date
on which a particular provision may come into effect. Many
imponderables may weigh with the State in choosing the date
and when challenge is made years later, the factors which
induced the choice of such dates may be buried under the
debris of time. Parties cannot take advantage of this
handicap and audaciously challenge every date of coming into
force of every provision as capriciously picked out. [1179
B-D]
JUDGMENT:
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ORIGINAL JURISDICTION: Writ Petition No. 1543 of 1977.
Under Article 32 of the Constitution of India.
WITH
W.P. No. 1542/77 and C.A. No. 1379/77, W.P. No. 838/78.
2360-2363/78 and S.L.P. (C) Nos. 1727/79 & 2333 & 2530 of
1978
AND
S.L.P. (C) No. 2539 of 1978 and W.P. No. 228 of 1979.
M.S. Gupta for the petitioners in WPs. 1542, 1543, 838
& CA 1379/77.
Arvind Kumar, Mrs. Lakshmi Arvind & Prakash Gupta for
the petitioners in SLPs. 1727, 2333 & 2530.
P.R. Mridul, R.K. Jain & Sukumar Sahu for the
petitioners in WPs 2360-63.
Veda Vyasa, S.K. Gupta & A.K. Sharma for the
petitioners in SLP 2599 and WP 228.
B.P. Singh Chauhan, Addl Adv. Genl. U.P. and O.P. Rana
the appearing respondents.
1162
The Judgment of the Court was delivered by
KRISHNA, IYER, J.-This judgment deals with a flood of
cases from Uttar Pradesh relating to limitation on
agricultural land holdings and specifically disposes of the
writ petitions, civil appeals and petitions for special
leave listed below.
The pervasive theme of this litigative stream is not
anti-land-reform as such but the discriminatory laws in the
relevant legislation which make it ’unlaw’ from the
constitutional angle.
The march of the Indian nation to the Promised Land of
Social Justice is conditioned by the pace of the process of
agrarian reform. This central fact of our country’s progress
has made land distribution and its inalienable ally, the
ceiling on land holding, the cynosure of legislative
attention. And when litigative confrontation with large
holders has imperilled the implementation of this vital
developmental strategy, Parliament, in exercise of its
constituent power, has sought to pre-empt effectively and
protect impregnably such statutory measures by enacting Art.
31A as the very first amendment in the very first year after
the Constitution came into force. Consequent on the
Constitution (First Amendment) Act, 1951, this court
repelled the challenges to land reform laws as violative of
fundamental rights in State of Bihar v. Kameshwar Singh but
the constant struggle between agrarian reform legislation
and never-say-die litigation has led to a situation where
every such enactment has been inevitably accompanied by
countless writ petitions assailing its vires despite Art.
31A, not to speak of the more extensive Chinese walls like
Arts. 31B, 31C and 31D. The forensic landscape is cluttered
up in this court with appeals and writ petitions and
petitions for leave to appeal, the common feature of each of
which is a challenge to the validity of one or other of the
State laws imposing ceiling on land holding in an
inegalitarian milieu of the landed few and the landless
many. Of course, the court is bound to judge the attack. On
the legislative projects for acquisition and distribution,
on their constitutional merits and we proceed to as say the
task with special reference to the Uttar Pradesh Imposition
of Ceiling on Land Holdings Act, 1960 (abbreviated hereafter
as the Act). Several counsel have argued and plural
objections have been urged but we will grapple with only
those contentions which have been seriously pressed and omit
others which have either been only formally mentioned or
left to lie in silent
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1163
peace, or but feebly articulated. In this judgment, we side-
step the bigger issue of the vires of the constitutional
amendments in Articles 31 A, 31 and 31 as they are dealt
with in other cases disposed of recently. Indeed, the
history of land reform, in its legislative dimension has
been a perennial race between judicial pronouncements and
constitutional amendments.
The anatomy of the Act must be scanned as a preliminary
exercise so that the Constitutional infirmities alleged may
be appreciated in the proper setting. The long title gives
the primary purpose of the Act as imposition of ceilings on
land holdings in Uttar Pradesh and the Preamble amplifies it
further. All this is tersely spelt out in the Statement of
objects and Reasons which runs thus:-
"With a view to provide for more equitable
distribution of land by making the same available to
the extent possible to landless agricultural labourers
and to provide for cultivation on cooperative basis and
to conserve part of the available resources in land so
as to increase the production and up reserve stock of
foodgrains against lean years by carrying on
cultivation on scientific lines in State-owned farms,
it is expedient to impose Ceiling on existing large
land holdings. It is necessary to provide some land to
the village communities for their common needs, such as
establishment of fuel and fodder reserves. The Bill is
therefore being introduced to promote the economic
interest of the weaker section of community and to
subserve the common good."
Thus we get the statutory perspective of agrarian
reform and so, the constitutionality of the Act has to be
tested on the touchstone of Art 31A which is the relevant
protective armour for land reform laws. Even here, we must
state that while we do refer to the range of constitutional
immunity Art. 31A confers on agrarian reform measures we do
not rest our decision on that provision. Independently of
Art. 31A, the impugned legislation can withstand
constitutional invasion and so the further challenge to Art.
31A itself is of no consequence. The comprehensive
vocabulary of that purposeful provision obviously catches
within its protective net the present Act and, broadly
speaking, the antiseptic effect of that Article is
sufficient to immunise the Act against invalidation to the
extent stated therein. The extreme argument that Art. 31A
itself is void as violative of the basic structure of the
Constitution has been negatived by my learned brother,
Bhagwati, J. in a kindred group of cases of Andhra Pradesh.
The amulet of Art. 31A is, therefore, potent, so far as it
goes, but beyond its ambit it is still possible, as counsel
have endeavoured, to
1164
spin out some sound argument to nullify one section or the
other. Surely, the legislature cannot run amok in the blind
belief that Art. 31A is omnipotent. We will examine the
alleged infirmities in due course. It is significant that
even apart from the many decisions upholding Art. 31A, Golak
Nath’s case decided by a Bench of 11 Judges, while holding
that the Constitution (First Amendment) Act exceeded the
constituent power still categorically declared that the said
amendment and a few other like amendments would be held good
based on the doctrine of prospective over-ruling. The
result, for our purpose, is that even Golak Nath’s case has
held Art. 31A valid. The note struck by later cases
reversing Golaknath does not militate against the vires of
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Art. 31A. Suffice it to say that in the Kesavananda
Bharati’s case. Article 31A was challenged as beyond the
amendatory power of Parliament and, therefore, invalid. But,
after listening to the marathon erudition from eminent
counsel, a 13 Judges Bench of this Court upheld the vires of
Article 31A in unequivocal terms. That decision binds, on
the simple score of stare decisis and the constitutional
ground of Art. 141. Every now discovery or argumentative
novelty cannot undo or compel reconsideration of a binding
precedent. In this view, other submissions sparkling with
creative ingenuity and presented with high-pressure
advocacy, cannot persuade us to re-open, what was laid down
for the guidance of the nation as a solemn pre-posion by the
epic Fundamental Rights case. From Kameshwar Singh and Golak
Nath (supra) through Kesavananda (supra) and Kanan Devan to
Gwalior Rayons and after Art. 31A has stood judicial
scrutiny although, as stated earlier, we do not base the
conclusion on Art. 31A. Even so, it is fundamental that the
nation’s Constitution is not kept in constant uncertainty by
judicial review every season because it paralyses, by
perennial suspense, all legislative and administrative
action on vital issues deterred by the brooding threat of
forensic blowup. This, if permitted, may well be a kind of
judicial destabilisation of State action too dangerous to be
indulged in save where national. crisis of great moment to
the life, liberty and safety of this country and its
millions are at stake, or the basic direction of the nation
itself is in peril of a shakeup. It is surely wrong to prove
Justice Roberts of the United States Supreme Court right
when he said.
1165
"The reason for my concern is that the instant
decision, overruling that announced about nine years
ago, tends to bring adjudications of this tribunal into
the same class as a restricted railroad ticket good for
this day and train only.. It is regrettable that in an
era marked by doubt and confusion, an era whose
greatest need is steadfastness of thought and purpose,
this Court which has been looked to as exhibiting
consistency in adjudication, and a steadiness which
would hold the balance even in the face of temporary
ebbs and flows of opinion. should now itself become the
breeder of fresh doubt and confusion in the public mind
as to the stability of our institutions".
It is wise to remember that fatal flaws silenced by
earlier rulings cannot survive after death because a
decision does not lose its authority "merely because it was
badly argued, inadequately considered and fallaciously
reasoned". And none of these misfortunes can be imputed to
Bharati’s case (supra). For these reasons, we proceed to
consider the contentions of counsel on the clear assumption
that Art. 31A is good. Its sweep is wide and indubitably
embraces legislation on land ceilings. Long years ago, in
Ranjit v. State, a Constitution Bench, speaking through
Hidayatullah, J., dwelt on the wide amplitude of Art. 31A,
referred to Precedents of this Court on agrarian reform vis
a vis Art. 31A and concluded that equitable distribution of
lands, annihilation of monopoly of ownership by imposition
of ceiling and regeneration of the rural economy by diverse
planning and strategies are covered by the armour of Art.
31A. We may quote a part:
The scheme of rural development today envisages
not only equitable distribution of land so that there
is no undue imbalance in society resulting in a
landless class on the one hand and a concentration of
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land in the hands of a few on the other, but envisages
also the raising of economic standards and bettering
rural health and social conditions. Provisions for the
assignment of lands to village Panchayat for the use of
the general community, or for hospitals, schools,
manure pits, tanning grounds etc. which (sic) enure for
the benefit of rural population must be considered to
be an essential part of the redistribution of holdings
and open lands to which no objection is apparently
taken. If agrarian reforms are to succeed, more
distribu-
1166
tion of lands to the landless is not enough. There must
be a proper planning of rural economy and conditions
and a body like the village panchayat is best designed
to promote rural welfare than individual owners of
small portions of lands. Further the village panchayat
is an authority for purposes of part III as was
conceded before us and it has the protection of Art.
31A because of this character even if the taking over
of Shamlat deb amounts to acquisition. ...... The
setting of a body or agricultural artisans (such as the
village carpenter, the village blacksmith, the village
tanner, ferrier, wheelwright, barber, washerman etc.)
is a part of rural planning and can be comprehended in
a scheme of agrarian reforms. It is a trite saying that
India lives in villages and a scheme to make villages
self-sufficient cannot but be regarded as part of the
larger reforms which consolidation of holdings, fixing
of ceiling on lands, distribution of surplus lands and
utilising of vacant and waste lands contemplate.
This review has been reinforced by the later
pronouncement of a Constitution Bench in the Gwalior Rayon
Case, emphatically expressing support for the conceptual
sweep of agrarian reform vis-a-vis Art. 31A. The
proposition, therefore, is invulnerable that Art. 31A
repulses all invasion on "ceiling legislation" (armed with
Arts. 14, 19 and 31).
The professed goal of the legislation is to maximise
surplus lands for working out distributive justice and rural
development, with special reference to giving full
opportunity to the agrarian masses to become a major rural
resource of the nation. How to maximise surplus land ? By
imposition of severe ceiling on ownership of land holdings
consistently with the pragmatics of rural economies and the
people’s way of life. The pervasive, pivotal concepts are,
therefore, ceilings on holdings and surrender of surplus
land. The working unit with reference to which the legal
ceiling is set is the realistic family. So, the flexible
concept of ’family’ also becomes a central object of
legislative definition. Having regard to the diversity of
family units among the various communities making up Indian
society and having the object of the legislation as the
guiding principle, the statute under consideration has given
a viable and realistic definition of ’family’, with
provision for some variables and special situations. The
machinery for implementing the statute is also set up with
adjudicative powers, including appeals. Compensation, with-
1167
out invidious discrimination, has to be paid, according to
the scheme, when surplus land is taken away and for the
determination and payment of such compensation a whole
chapter is devoted. The disposal of land secured as surplus
is, perhaps, the elimination of the legislative project. and
so, Chapter 4 stipulates the manner of disposal and
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settlement of surplus land. Thus, we have the definitional
provision in Chapter 1, followed by imposition of "ceilings"
with ancillary provisions for exemption. The judicial
machinery for enforcement and the provisions for pre-emption
of manipulation and prevention of fraud on the statute, the
assessment of compensation and its payment and the like have
also been enacted in Chapters 2 and 3. A miscellaneous
chapter deals with a variety of factors, including offences
and penalties, mode of hearing and appellate powers and
kindred matters. Inevitably, such a progressive legislation
runs drastically contrary to the feudal ethos of the landed
gentry and the investment intancts of the nouveau riche and
green revolutionists. Therefore, the holders who are hurt by
the provisions of the Act have chosen to challenge their
vires and they must succeed if the ground is good. Since the
legislature has plenary power to tile extent conferred by
the Constitution, the attack has to be based, and, deed has
been on constitutional infirmities which If sound, must
shoot down the Act. By way of aside, one might query whether
agrarian reform, with all the fanfare and trumpet, has
seriously taken off the ground or is still in the hangar?
Any way, the court can only pronounce, the Executive must
execute.
We will now proceed to formulate the points which,
according to counsel, are fatal to the legislation and
proceed to scan them in due course.
Various miniscule matters have been raised in the
plethora of cases largely founded on some real or fancied
inequity, inequality, legislative arbitrariness or sense of
injustice. Speaking generally and with a view to set the
record straight, injustice is conditioned by the governing
social philosophy, the prevailing economic approach and,
paramountly, by the constitutional parameters which bind the
court and the community.
The Indian Constitution is a radical document, a
charter or socio-politico-economic change and geared to
goals spelt out in the objectives Resolution which commits
the nation to a drive towards an egalitarian society, a note
struck more articulately by the adjective ’socialist’ to our
Republic introduced by a recent Amendment and survives after
Parliament, differently composed, had altered the 42nd
Amendment. This backdrop suggests that agrarian legislation,
organised as egalitarian therapy, must be judged, not
meticulously for every indi-
1168
vidual injury but by the larger standards of abolition of
fundamental in equalities, frustration of basis social
fairness and shocking unconscionableness. This process
involves detriment to vested interests. The perfect art of
plucking the goose with the least squealing is not a human
gift. A social surgery, supervised by law, minimises, not
eliminates, individual hurt while promoting community
welfare. The court, in its interpretative role, can neither
be pachydermic nor hyperreactive when landholders, here and
there lament about lost land. We will examine the
contentions form this perspective, without reference to
Arts. 31B, C and D. Justice Cardozo has a message for us
when he says:
Law and obedience to law are facts confirmed
everyday to us all in our experience of life. If the
result of a definition is to make them seem to be
illusions, so much the worse for the definition; we
must enlarge it till it is broad enough to answer to
realities.
Shri Mridul, who led the arguments, mounted a three-
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point attack. Article 31A(1) (ii) was the target of an
obscure submission which counsel, with characteristic
fairness, did not press at a later stage. Linked up with it
was queer nexus between Art. 21 and. the right to property,
deprivation of which was contended to be an unreasonable
procedure somehow falling within the lethal spell of Art.
21.
Proprietary personality was integral to personal
liberty and a may hem inflicted on a man’s property was an
amputation of his personal liberty. Therefore, land reform
law, if unreasonable, violates Art. 21 as expansively
construed in Maneka Gandhi. The dichotomy between personal
liberty, in Art. 21, and proprietary status, in Arts. 31 and
19 is plain, whatever philosophical justification or
pragmatic realisation it may possess in political or
juristic theory. Maybe, a penniless proletarian, is unfree
in his movements and has nothing to lose except his chains.
But we are in another domain of constitutional the
jurisprudence. Of course, counsel’s resort to Art. 21 is
prompted by the absence of mention of Art. 21 in Art. 31A
and the illusory hope of inflating. Maneka Gandhi to impart
a healing touch to those whose property is taken by feigning
loss of personal liberty when the State takes only property.
Maneka Gandhi is no universal nostrum or cure-all, when all
other arguments fail!
The last point which had a quaint moral flavour was
that transfers of landed property, although executed after
the dates specified in the
1169
Act were unreasonably invalidated by the Act even when there
was no "mens rea" vis a vis the ceiling law on the part of
the transferor and this was violative of Art. 19(1) (f) and
of Art. 14 as arbitrary. A facet of over-inclusiveness which
breaches Art. 14 was also urged. It is perfectly open to the
legislature, as ancillary to its main policy to prevent
activities which defeat the statutory purpose, to provide
for invalidation of such actions. When the alienations are
invalidated because they are made after a statutory date
fixed with a purpose, there is sense in this prohibition.
Otherwise, all the lands would have been transferred and
little would have been left by way of surplus. Let us read
the text of s.5(6) which is alleged to be bad being over-
inclusive or otherwise anomalous. The argument, rather hard
to follow and too subtle for the pragmatic of agrarian law,
may be clearer when the provision is unfurled. Section 5(6)
runs thus:
In determining the ceiling area applicable to a
tenure holder, any transfer of land made after the
twenty-fourth day of January, 1971, which but for the
transfer would have been declared surplus land under
this Act, shall be ignored and not taken into account .
Provided that nothing in this sub-section shall apply
to:
(a) a transfer in favour of any person(including
Government) referred to in sub-section(2);
(b) a transfer proved to the satisfaction of the
prescribed authority to be in good faith and
for adequate consideration and under an
irrevocable instrument riot being a benami
transaction or for immediate or deferred
benefit of the tenure-holder or other
members of the family.
There is no blanket ban here but only qualified
invalidation of certain sinister assignments etc. Counsel
weaves gossamer webs which break on mere judicial touch when
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he argues that transfer ’in good faith and for adequate
consideration’ have been unconstitutionally exempted. The
bizarre submission is that ’adequate consideration’ is an
arbitrary test. We reject it without mere discussion. The
second limb of the submission is that while s. (6) directs
the authority to ignore certain transfers it does not void
it. The further spin-off adroitly presented by counsel is
that the provision violates the second proviso to Art. 31.
It is a little too baffling to follow and we dismiss the
submission as hollow. The provision in s.5(6), when read in
the light of the Provisos, is fair and valid.
1170
Counsel’s further argument is to quote his own words
that "the impugned provisions do not establish a reasonable
procedure" because:
"The expression ’in good faith’ is over-inclusive
and takes within its sweep situations which are not
only very different but which may not have any nexus or
legitimate relationship with the objects and purposes
of the ceiling law .. "
We are hardly impressed by it and find no substance on it.
There is no question of morality or constitutionality
even if the clause may be a little over-drawn. On the
contrary, it is legislative folly not to preserve, by
appropriate preventives and enacted contraceptives, the
’surplus’ reservoir of land without seepage or spill-over.
It is legal engineering, not moral abandonment. Indeed, the
higher morality or social legitimacy of the law requires a
wise legislature to prescribe transfers, lest the surplus
pool be drained off by a rush of transactions. Maybe,
individual hardship may happen, very sad in some instances.
But every great cause claims human martyrs! Poor consolation
for the victim but yet a necessary step if the large owners
are not to play the vanishing trick or resort to manipulated
alienations! After all, this ban comes into force only on a
well-recognised date, not from an arbitrary retroactive
past.
We cannot discover anything which is morally wrong or
constitutionally anathematic in such an embargo. Article
19(1) (f) is not absolute in operation and is subject, under
Art.19(6), to reasonable restrictions such as the one
contained in s.5(6). We do not think there is merit in the
triple submissions spun by Shri Mridul.
Even on the merits, the transfers have been rightly
ignored, the vendees who are the grandsons have been held to
be not bona fide transferees for adequate consideration; and
the findings are of fact and concurrent. We over-rule the
grounds of grievance as unsustainable. In sum, without
reliance on Art. 31A, Shri Mridul’s contentions can be
dismissed as without merit.
We will now consider the mini-arguments of the other
counsel some of them do merit serious consideration by the
court - and even where direct relief does not flow from the
judicial process, State action to avoid anomalies may well
be called for in the light of genuine hardships.
Shri Veda Vyas, appearing in W.P. No. 228 of 1979 and
SLP No. 2599 of 1978, pleaded powerfully for gender justice
and sex
1171
equity because, according to his reading, the Act had a
built-in masculine bias in the definition of ’family unit’
and allocation of ceiling on holdings, and therefore,
perpetrated unconstitutional discrimination. Indeed, his
case illustrated the anti-woman stance of the statute, he
claimed. The submission is simple, the inference is
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inevitable but the invalidation does not follow even if Art.
31A is not pressed into service to silence Art. 14.
We will formulate the objections and examine their
merit from the constitutional perspective. Maybe, there is
force in the broad generalisation that, notwithstanding all
the boasts about the legendary glory of Indian womanhood in
the days of yore and the equal status and even martial
valour of heroines in Indian history, our culture has
suffered a traumatic distortion, not merely due to feudalism
and medievalism, but also due to British imperialism.
Indeed, the Freedom. Struggle led by Mahatma Gandhi, the
story of social reforms inspired by spiritual leaders like
Swami Vivekananda and engineered by a galaxy of great
Indians like Raja Rammohan Roy, Swami Dayananda Saraswati
and Maharishi Karve and the brave chapter of participation
in the Independence Movement by hundreds and thousands of
woman patriots who flung aside their unfree status and rose
in revolt to overthrow the foreign yoke, brought back to
Indian womanhood its lustrous status of equal partnership
with Indian manhood when the country decided to shape its
destiny and enacted a Constitution in that behalf. Our legal
culture and Corpus juris, partly a heritage of the past, do
contain strands of discrimination to set right which a
commission elaborately conducted enquiries and made a
valuable report to the Central Government. Shri Veda Vyas
may be right in making sweeping submissions only to this
limited extent but when we reach the concrete statutory
situation and tackle the specific provisions in the Act, his
argument misses the mark.
A better appreciation of his contention must be
preceded by excerption of two definitions and consideration
of the concepts they embody. Section 3(7) defines ’family’
thus:
’family’ in relation to a tenure-holder, means
himself or herself and his wife or her husband, as
the case may be (other than a judicially separated
wife or husband), minor sons and minor daughters
(other than married daughters);
This definition is incomplete without contextually reading
s. 5(3) and so we quote the provision which, in the view of
Shri Veda Vyas, enwombs the vice of discrimination against
women. Sec.5(3)(a) & (b) & Explanation:
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Sec. 5(3): Subject to the provisions of sub-sections
(4), (5), (6) and (7) the ceiling area for purposes of sub-
section (1) shall be
(a) In the case of a tenure-holder having a family of
not more than five members, 7.30 hectares of
irrigated land (including land held by other
members of his family) plus two additional
hectares of irrigated land or such additional land
which together with the land held by him
aggregates to two hectares, for each of his adult
sons, who are either not them selves tenure
holders or who hold less than two hectares of
irrigated land, subject to a maximum of six
hectares of such additional land;
(b) in the case of a tenure-holder having family of
more than five members, 7.30 hectares of irrigated
land (including land held by other members of his
family), besides, each of the members exceeding
five and for each of his adult sons who are not
themselves tenure holders or who held less than
two hectares of irrigated land, two additional
hectares of irrigated land or such additional land
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which together with the land held by such adult
son aggregates to two hectares subject to a
maximum of six hectares of such additional land
Explanation: The expression ’adult son’ in clause (a) and
(b) includes an adult son who is dead and has left
surviving behind him minor sons or minor daughters
(other than married daughters) who are not
themselves tenure holders or who hold land less
than two hectares of irrigated land;
The anti-female kink is patent in that the very
definition of family discloses prejudice against the weaker
sex by excluding adult daughters without providing for any
addition to the ceiling on their account. In the case of an
adult son, s. 5(3) (a) of the Act provides for the addition
of two hectares of irrigated land for each of his tenure
holder’s) sons where the family has a strength of less than
five. Section 5(3)(b) similarly provides for two additional
hectares of irrigated land for each of his (tenure holder’s)
adult sons where the strength of the family is more than 5.
It must be remembered that this addition is on account of
the fact that there are adult sons, even though they are not
tenure holders or held less than two hectares or none. This
previlege of adding to the total extent that the family of a
tenure
1173
holder may keep is denied to an adult daughter, even though
unmarried, and, therefore, dependent on the family for that
a married son stands on a different footing from a married
daughter, what justice is there in baring a dependent
unmarried daughter in the cold? Assuming without admitting,
Shri Veda Vyas further urges that having regard to the Child
Marriage Restraint Act, 1929 and the increasing prevalence
of unmarried adult daughters in families these days, the
discrimination is not theoretical but real because no minor
girl can now marry.
Another similar invidious provision is the definition
of tenure holder. Ceiling on holdings is fixed with
reference to tenure-holders.
We wonder whether the Commission on the Status of Women
or the Central Governments or the State Governments have
considered this aspect of sex discrimination in most land
reforms laws, but undoubtedly the State should be fair
especially to the weaker sex. Adult damsels should not be
left in distress by progressive legislations geared to land
reforms. This criticism may have bearing on the ethos of the
community and the attitude of the legislators, but we are
concerned with the constitutionality of the provision.
Maybe, in this age of nuclear families and sex equal human
rights it is illiberal and contrary to the zeit geist to
hark back to history’s dark pages nostalgically and disguise
it as the Indian way of life with a view to deprive women of
their undeniable half. Arts. 14 and 15 and the humane spirit
of the Preamble rebel against the de facto denial of
proprietary personhood of woman-hood. But this legal
sentiment and jural value must not run riot and destroy
provisions which do not discriminate between man and woman
qua man and woman but merely organise a scheme where life’s
realism is legislatively pragmatised. Such a scheme may
marginally affect gender justice but does not abridge, even
a wee-bit, the rights of women. If land-holding and ceiling
thereon are organised with the paramount purpose of
maximising surpluses without maiming woman’s ownership no
submission to destroy this measure can be permitted using
sex discrimination as a means to sabotage what is socially
desirable. No woman s property is taken away any more than a
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man’s property.
Section 5(3) reduces daughters or wives to the status
of stooges. It forbids excessive holdings having regard to
rural realities of agricultural life. ’Family’ is defined
because it is taken as the unit for holding land-a fact of
extant societal life which cannot be wished away. This is
only a tool of social engineering in working out the scheme
of setting limits to ownership. Section 5(3) does not confer
any property on an adult son nor withdraw any property from
an adult daughter. That provision shows a concession to a
tenure-holder who has propertyless
1174
adult sons by allowing him to keep two more hectares per
such son. The propertyless son gets no right to a cent of
land on this score but the father is permitted to keep some
more of his own for feeding this extra mouth. If an
unmarried daughter has her own land, this legislation does
not deprive her any more than a similarly situated
unmarried son. Both are regarded as tenure-holders. The
singular grievance of a chronic spinster vis a vis a similar
bachelor may be that the father is allowed by s. 5(3) to
hold an extra two hectares only if the unmarried major is a
son. Neither the daughter nor the son gets any land in
consequence and a normal parent will look after an unmarried
daughter with an equal eye. Legal injury can arise only if
the daughter’s property is taken away while the son’s is
retained or the daughter gets no share while the son gets
one. The legislation has not done either. So, no tangible
discrimination can be spun out. Maybe, the legislature could
have allowed the tenure-holder to keep another two hectares
of his on this basis of the existence of an unmarried adult
daughter. It may have grounds rooted in rural realities to
do so. The court may sympathize but cannot dictate that the
land-holder may keep more land because he has adult
unmarried daughters. That would be judicial legislation
beyond permissible process.
The same perspicacious analysis salvages the provision
regarding a wife. True, s. 3(17) makes the husband tenure-
holder even then the wife is the owner. So long as the land
is within the sanctioned limit it is retained as before
without affecting ownership or enjoyment. But where it is in
excess, the compensation for the wives land, if taken away
as surplus, is paid to her under Chapter III, And even in
the choice of land, to declare surplus, the law, in s. 12A,
has taken meticulous care to protect the wife. The husband
being treated as tenure-holder even when the wife is the
owner is a legislative device for simplifying procedural
dealings. When all is said and done, married woman in our
villages do need their husband’s services and speak through
them in public places, except, hopefully in the secret
ballot expressing their independent political choice. Some
of us may not be happy with the masculine flavour of this
law but it is difficult to hold that rights of women are
unequally treated, and so, the war for equal gender status
has to be waged elsewhere. Ideologically speaking, the legal
system, true to the spirit of the Preamble and Art. 14, must
entitle the Indian women to be equal in dignity, property
and personality, with man. It is wrong if the land reforms
law denudes woman of her property. If such be the provision,
it may be unconstitutional because we cannot expect that
"home is the girl’s prison and the woman’s work-house" But
it is not.
1175
It must be said in fairness, that- the legislature must
act on hard realities, not on glittering ideals which fail
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to work. Nor can large landholders be allowed to outwit
socially imperative land distribution by putting female
discrimination as a mask. There is no merit in these
submissions of Sri Veda Vyas.
In the view we have taken, we need not discuss the
soundness of the reasoning in the ruling in Sucha Singh v.
State(1). The High Court was right, if we may say so with
respect, in its justification of the section when it
observed:
The subject of legislation is the person owning or
holding land and not his or her children.
Section 5 provides for the measure of permissible
are that a person with one or more adult sons will be
allowed to select out of the area owned or held by him
and his children,- whether male or female, have not
been given any right to make a selection for himself or
herself. It cannot. therefore, be said that this
section makes a discrimination between a son and a
daughter in respect of his or her permissible area on
the ground of sex alone. The legislature is the best
Judge to decide how much area should be left as
permissible area with each owner or holder of land.
Insofar as no distinction between a male and a female
holder or owner of the land has been made in respect of
the permissible area in any given circumstances? there
is no violation of Article 15 of the Constitution. This
section does not provide for any succession to the
land; it only provides for the measure of the
permissible area to be retained by every holder or
owner of the land out of the area held or owned by him
or her on the appointed day on the basis of the number
of adult sons he or she has. It is for the legislature
to prescribe the measure of permissible area and no
exception can be taken because only adult sons have
been taken into consideration.
Shri Veda Vyas objected to the further observations of
Tuli, J.
It. is evident that distinction between an adult
son and an adult daughter has been made not only on the
ground of sex but also for the reason that a daughter
has to go to another family after her marriage in due
course, marriage being a normal custom which is
universally practised. This
1176
is an institution of general prevalence which is the
foundation of organised and civilised societies and
communities.
Our rapidly changing times, when women after long domestic
servitude, seek self-expression, cannot forge new legal
disabilities and call it legislative wisdom. But, without
assent or dissent, we may pass by these observations because
no property right of women is taken away, and
discrimination. if any, is not inflicted on rights, but
sentiments. Shri Arvind Kumar, who followed, also made some
persuasive points and seeming dents in the legislation when
read in the light of the U.P. Consolidation of Holdings Act,
1953 (hereinafter called the Consolidation Act). In general
terms, the submission turned on the operation of the law
relating to consolation of holdings.
It is a great pity that a benign agrarian concept-
abolition of fragmentation and promotion of consolidation of
agricultural holdings- has proved in practice to be a
litigative treachery and opened up other vices. The
provision for appeals and revisions and the inevitable
temptation of the vanquished to invoke Art. 226 and Art. 136
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of the Constitution has paved the protracted way for
improvident lay-out on speculative litigation. More farmers
are cultivating litigation than land, thanks to the multi-
docket procedure in the concerned law. Even so, we see no
force in counsel’s contention which we may now state.
The thrust of his argument, omitting subsidiary
submissions which we will take up presently, is that so long
as consolidation proceedings under the sister statute (U.P.
Consolidation of Holdings Act, 1953) are under way, two
consequences follow. Firstly, all other legal proceedings
including the ceiling proceedings must abate. A notification
under s. 4 of the Consolidation Act has been issued in
regard to many areas in the State. Consolidation has been
completed in most places but is still pending in some
places. Counsel’s argument is that once a notification under
s.4 has been issued, s. 5(2)(a) operates. This latter
provision states that
every proceeding for the correction of records and
every suit and proceeding in respect of declaration of
rights or interest in any land laying in the area, or,
for declaration or ad judication of any other right in
regard to which proceedings can or ought to be taken
under this Act, pending before any court or authority
whether of the first instance or of appeal, reference
of revision, shall, on an order being passed in that
1177
behalf by the court or authority before whom such suit
or proceeding is pending, stand abated;
Provided that no such order shall be passed
without giving to the parties notice by post or in any
other manner and after giving them an opportunity of
being heard:
Provided further that on the issue of a
notification under sub-section (1) of Section 6 in
respect of the said area or part thereof, every such
order in relation to the land lying in such area or
part as the case may be, shall stand vacated;
Thus the ceiling proceeding has abated and surplus land
cannot be taken from him. This plea has only meretritious
attraction and superficial plausibility as we will presently
see.
The whole scheme of consolidation of holding is to
restructure agrarian landscape of U.P. so as to promote
better farming and economic holdings by eliminating
fragmentation and organising consolidation. No one is
deprived of his land. What happens is, his scattered bits
are taken away and in lieu thereof a continuous
conglomeration equal in value is allotted subject to minimal
deduction for community use and better enjoyment. Once this
central idea is grasped, the grievance voiced by the
petitioner becomes chimerical. Counsel complains that the
tenure-holder will not be able to choose his land when
consolidation proceedings are in an on-going stage. True, ,
whatever land belongs to him at that time, may or may not
belong to him after the consolidation proceedings are
completed. Alternative allotments may be made and so the
choice that he may make before the prescribed authority for
the purpose of surrendering surplus lands and preserving
’permissible holding’ may have only tentative value. But
this factor does not seriously prejudice the holder. While
he chooses the best at the given time the Consolidation
officer will give him its equivalent when a new plot is
given to him in the place of the old. where is no diminution
in the quantum of land and quality of land since the object
of consolidation is not deprivation but mere substitution of
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scattered pieces with a consolidated plot. The tenure-holder
may well exercise his option before the prescribed officer
and if, later, the Consolidation officer takes away these
lands, he will allot a real equivalent thereof to the
tenure-holder elsewhere. There is no reduction or damage or
other prejudice by this process of statutory exchange.
Chapter III of the Consolidation Act provides, in great
detail, for equity and equality, compensation and other
benefits when finalising the consolidation scheme. Section
19(1) (b) ensure that 16-610 SCI/80
1178
"the valuation of plots allotted to a tenure-
holder subject to deductions, if any, made on account
of contributions to public purposes under this Act is
equal to the valuation of plots originally held by him.
Provided that, except with the permission of the
Director of Consolidation, the area of the holding or
holdings allotted to a tenure-holder shall not differ
from the area of his original holding or holdings by
more then twenty five percent of the latter."
When land ii contributed for public purposes compensation is
paid in that behalf in the event of illegal or unjust orders
passed, appellate and revisory remedies are also provided.
On such exchange or transfer taking place, pursuant to the
finalisation of the consolidation scheme, the holding, upto
the ceiling available to the tenure holder, will be
converted into the new allotment under the consolidation
scheme . Thus, we see no basis in justice nor gross
arbitrariness in the continuance of the land reforms
proceedings even when consolidation proceedings are under
way. We are not all impressed with counsel’s citation of the
ruling in Agricultural & Industrial Syndicate Ltd. v. State
of UP and others,(l), particularly because there has been a
significant amendment to s. S subsequent thereto. The law as
it stood then was laid down by this Court in the above case;
but precisely because of that decision an explanation has
been added to s. 5 of the Consolidation Act which reads
thus:
Explanation:- For the purposes of subsection(2) a
proceeding under the Uttar Pradesh Imposition of
Ceiling on Land Holdings Act, 1960 or an uncontested
proceeding under Sections 134 to 137 of the U.P.
Jamindari Abolition and Land Reforms Act, 1950, shall
not be deemed to be a proceeding in respect of
declaration of rights or interest, in any land.
The view of the Allahabad High Court in Kshetrapal Singh v.
State of U.P.(2) (H.C.) is correct, and in effect negatives
the submission of Shri Arvind Kumar that there should be a
stay of ceiling proceedings pending completion of
consolidation proceedings. The head note in Kshetrapal
Singh’s case (Supra) brings out the ratio and for brevity’s
sake, we quote it;
By adding the Explanation after sub-section(2) of
Section 5 of the Act a legal fiction has been created.
What is
1179
otherwise a proceeding in respect of declaration of
rights or interest in any land is deemed not to be
such a proceeding. That is the clear legislative intent
behind the Explanation. ordinarily an Explanation is
intended to explain the scope of the main section and
is not expected to enlarge or narrow down its scope but
where the legislative intent clearly and unambiguously
indicates an intention to do so, effect must be given
to the legislative intent notwithstanding the fact that
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the legislature named that provision as an Explanation.
A feeble submission was made that there was time-wise
arbitrariness vitiating the statute in that various
provisions in the Act were brought into force on random
dates without any rhyme or reason, thus violating, from the
temporally angle, Art. 14. It is true that neither the
legislature nor the Government as its delegate can fix
fanciful dates for effectuation of provisions affecting the
rights or citizens. Even so, a larger latitude is allowed to
the State to notify the date on which a particular provision
may come into effect. Many imponderables may weigh with the
State in choosing the date l) and when challenge is made
years later, the factors which induced ’7 the choice of such
dates may be buried under the debris of time. Parties cannot
take advantage of this handicap and audaciously challenge
every date of coming into force of every provision as
capriciously picked out. In the present case, s.6(1) (g) has
been brought into force on 8.6.73, s.6(3) on 10.10.75,
s.3(4) on 15.8.72, s.16 on 1.7.73 and s.(l) (e) on 24.1.71.
This last date which was perhaps the one which gave the
learned Advocate General some puzzlement was chosen because
on that date the election manifesto of the Congress Party in
all the States announced a revised agrarian policy and that
party was in power at the Union level and in most of the
States. Although a mere election manifesto cannot be the
basis for fixation of a date, here the significance is
deeper in that it was virtually the announcement of the
political government of its pledge to the people that the
agrarian policy would be revised accordingly. The other
dates mentioned above do not create any problem being
rationally related to the date of a preceding ordinance or
the date of introduction of the bill. The details are not
necessary except to encumber this judgment. We would
emphasise that the brief of the State when meeting
constitutional challenges on the ground of arbitrariness
must be a complete coverage, including an explanation for
the date of enforcement of the provision impugned. Court and
counsel cannot dig up materials to explain fossil dates when
long years later an enterprising litigant chooses to
challenge.
1180
A few other minor infirmities were faintly mentioned
but not argued at all or seriously, such as, for instance,
the contention that s. 38B of the Act which understandably
excludes res judicata is challenged as violative of the
basis structure of the Constitution and otherwise exceeds
legislative competence. We do not think there is need to
dilate on every little point articulated by one or other of
the numerous advocates who justify their writ petitions or
civil appeals by formal expression of futile submissions.
We dismiss all the appeals and all the writ petitions
and all the special leave petitions with costs one set in
all the cases together which we quantify as Rs. 5,000/-.
S.R. Appeals and Petitions dismissed.
1181