Full Judgment Text
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PETITIONER:
H.S. SRINIVASA RAGHAVACHAR ETC. ETC.
Vs.
RESPONDENT:
STATE OF KARNATAKA & ORS.
DATE OF JUDGMENT23/04/1987
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
DUTT, M.M. (J)
CITATION:
1987 AIR 1518 1987 SCR (2)1189
1987 SCC (2) 692 JT 1987 (3) 26
1987 SCALE (1)885
ACT:
Karnataka Land Reforms Act, 1961--Sections 44, 48(8) and
48A--Right of landlord to resume land if bona fide required
for personal cultivation--Taken away by Karnataka Land
Reforms (Amendment) Act, 1974--Whether constitutionally
valid--Amendment law aimed at agrarian reform--Advocates not
to be prevented from appearing before Tribunals functioning
under the Act--Tribunals functions under the Act--Whether to
be manned by judicial personnel.
Administrative law--Statutory Tribunals--Whether to be a
lay tribunal or judicial tribunal--Some disputes required
trained judicial mind, many do not require application of
trained judicial mind-Land Tribunals under Section 48(8) of
Karnataka Land Reforms Act, 1961 do not require trained
judicial personnel.
Advocates Act, 1961/Indian Bar Councils Act,
1926--Section 30/ Section 14---Advocates--Right of appear-
ance before Tribunals-Section 48(8) of Karnataka Land
Reforms Act, 1961 not to be enforced so as to prevent Advo-
cates from appearing before Tribunals under the Act.
Constitution of India, 1950--Articles 31-A, 31-B and
31-C, 39(b) and (c) and Ninth Schedule--Karnataka Land
Reforms (Amendment) Act, 1974 Constitutional validity
of--Law clearly aimed at agrarian reform.
HEADNOTE:
The Karnataka Land Reforms Act. 1961 was substantially
amended by the Amendment Act I of 1974 and it was included
in the Ninth Schedule as was the principal Act. Section 5
was amended and the provisos were omitted. Sections 14 and
16 were deleted. Section 44 was mended. New sub-section (1)
provided that:-
"All lands held by or in the possession of
tenants (including tenants against whom a
decree or order for eviction or a certificate
for resumption is made or issued) immediately
prior to the date of commencement of the
Amendment Act, other than lands
1190
held by them under leases permitted under
Section 5 shall, with effect on and from the
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said date, stand transferred to and vest in
the State Government. ’’
A new Section 48 providing for the constitution of
Tribunals was introduced. Sub-section (8) of Section 48
provided that no legal practitioner shall be allowed to
appear in any proceeding before the Tribunal. Section 48A
dealt with the procedure to be adopted by the Tribunal in
its enquiry into applications made under Section 45 for
registration of a person as an occupant.
The provision for an appeal from the decision of the
court and the further right of revision under the amended
Act were taken away and there was no right of appeal or
revision against the decision of the Tribunal. The 1974
Amending Act took away the right which was saved by the
original Act in favour of the widow, unmarried woman, minor
and disabled person to create a tenancy or lease of the
land. The more important right which was taken away by the
1974 Amendment was the right of the landlord to resume the
land if he bona fide required the land for personal cultiva-
tion or for a non-agricultural purpose. This right was
denied by the Amending Act even if the income by the culti-
vation of the land which he was entitled to resume was the
principal source of income for the maintenance of the land-
lord.
The Writ Petitions challenging the amendments filed by
the appellants were dismissed by the High Court.
In the appeals, it was contended on behalf of the appel-
lants that the 1974 Amendment insofar as it took away the
right of a landlord to resume possession of the tenanted
land where he bona fide required the land for personal
cultivation and had no other principal source of income was
ultra vires, notwithstanding its inclusion in the Ninth
Schedule. as it offended the basic structure of the Consti-
tution. that the provision for the constitution of a Tribu-
nal consisting of persons with unspecified qualifications in
the place of a court was similarly ultra vires the powers of
the State Legislature, and that Section 48(8) which excluded
legal practitioners from appearing before the Tribunals was
repugnant to Section 30 of the Advocates Act, 1961 and
Section 14 of the Indian Bar Councils Act. 1926 and the
State Legislature was not competent to make a law repugnant
to laws made by Parliament pursuant to entries 77 and 78 of
List I of the Seventh Schedule of the Constitution and that
important questions which fail for consideration under
Section 48A should not be left to a Tribunal consisting of
mem-
1191
bers nominated by the State Government with no regard for
any qualification.
It was also contended that the 1974 Amendment Act was
not a law pertaining to agrarian reform; nor was it a law
directed towards securing that the ownership and control of
the material resources of the community were so distributed
as best to subserve the common good or that the operation of
the economic system did not result in the concentration of
wealth and means of production to the common detriment. that
far from setting out to achieve these goals, the Amendment
Act set out in quite opposite direction by seeking to reduce
to destitution small landlords whose sole means of liveli-
hood was the tenanted land which they were allowed to resume
for personal cultivation, that the original Act was very
fair as it recognised poverty amongst landlords as well as
poverty amongst tenants and afforded a measure of protection
to the poorer sections of the landlords, and that Waman
Rao’s case to the extent it upheld Articles 31-A, 31-B and
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31-C and the validity of the legislations impugned therein
required re-consideration.
Dismissing the appeals, this Court,
HELD: 1. No provision of the Amending Act offends the
basic structure of the Constitution. [1204G-H]
2. The 1974 Amending Act took away the right which was
saved by the original Act in favour of the widow. unmarried
women, minor and disabled person to create a tenancy or
lease of the land. The more important right which was taken
away by the 1974 Amendment was the right of the landlord to
resume the land if he bona fide required the land for per-
sonal cultivation or for a non-agricultural purpose.
[1201E-F]
3. It is too late in the day to contend that, in the
existing system of economic relations, ownership of land to
the tiller of the land is not the best way of securing the
utmost utilisation of land, a material resource of the
community for the common good of the entire community. It is
now well recognised that in the absence of common ownership
of land in the existing system of economic relations, the
greatest incentive for maximum production is the feeling of
identity and security which is possible only if the owner-
ship of the land is with the tiller. It is in recognition of
this principle that ’landlordism’ was sought to be totally
done away with by the amendment of Section 5 of the Act, by
the omission of Sections 14 and 16 and by the amendment of
Section 44. [1204C-E]
1192
4. If between a landlord who did not himself personally
cultivate the land and a tenant who so cultivated the land,
the legislature preferred the cultivating tenant, it is not
possible to hold that such preference is not part of a
programme of agrarian reform pursuant to the Directive
Principles contained in Articles 39(b) and (c) of the Con-
stitution. There is not the slightest doubt that the amend-
ment was a law clearly aimed at agrarian reform to secure
these Directive Principles. It is true that one of the
conditions subject to which alone a landlord could resume
land for personal cultivation under Section 16 of the Act
was that the income from the land proposed to be cultivated
by the landlord on resumption should be the principal source
of income for the maintenance of the landlord, but the
question of resumption of land from a tenant would not arise
unless a tenant was already cultivating the land. If, there-
fore, a tenant is already cultivating the land and if,
presumably, that is the source of his livelihood, there is
no reason why he should be dispossessed to enable a landlord
whose source of livelihood it was not until then to make it
his principal source of maintenance hereafter. [ 1204E-G]
5.1 The mal-functioning of some of the Tribunals cannot
possibly vitiate the provision relating to the constitution
of the Tribunal and entrustment of the decision of certain
issues to the Tribunal. There can be no doubt that while the
decision of some disputes require a trained Judicial mind to
be applied to it, there are many other questions which do
not require the application of any trained judicial mind.
The disputes contemplated by Section 48A do not appear to be
disputes of a nature where the application of a trained
judicial mind is absolutely essential. [ 1205C, D]
5.2 Land Tribunals have functioned very well in some of
the States where under the respective State Acts more com-
plicated questions than ones under Section 48A were entrust-
ed to the Land Tribunals. The failure of the Land Tribunals
to function efficiently in the State has apparently been
taken note of by the Legislature itself and the Act has
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since been amended making provision for an appeal and revi-
sion. The failure of some of the Land Tribunals to function
efficiently cannot be said to be sufficient to stigmatise
wholesale, the functioning of all the Tribunals constituted
under the Act and invalididate the provisions of the Act
relating to Tribunals. [1205D-F]
6.1 Section 48(8) will not be enforced so as to prevent
Advocates from appearing before the Tribunals functioning
under the Act, since this provision is repugnant to Section
30 of the Advocates Act, 1961 and Section 14 of the Indian
Bar Councils Act, 1926 and the State
1193
Legislature is not competent to make a law repugnant to laws
made by Parliament pursuant to Entries 77 and 78 of List I
of the Seventh Schedule of the Constitution. [1205G-H;
1206A]
6.2 In regard to decisions already rendered by the
Tribunals, it is not necessary to re-open them on the ground
that legal practitioners were not allowed to appear before
the Tribunals in those cases. [1205B]
7. It is not necessary either to re-consider or to go
behind the decision in Waman Rao’s case for the purpose of
this case. [1202D]
Waman Rao & Ors. v. Union of India, [1981] 2 SCR 1 and
Jaswant Kaur v. State of Haryana, AIR 1977 Punjab & Haryana
221, referred to.
JUDGMENT:
CIVIL APPELLATE jURISDICTION: Civil Appeals Nos. 3828-
3832 of 1983 etc.
From the Judgment and Order dated 31.8.82/1.9.1982 of
the Karnataka High Court in W.P. Nos. 19486, 23347 23348,
23349 and 25366 of 1981.
B.R.L, Iyengar, Soli J. Sorabjee, S.K.V. lyenger and
Mrs. Shyamala Pappu, S. Lakshminarasu, K. Ram Kumar, Mrs.
Indira Sawhney and P.R. Ramasesh for the Appellants.
M. Veerappa and Ashok Sharma for the Respondents.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. The question raised in the several
appeals is primarily that of the vires of sec. 44 of the
Karnataka Land Reforms Act, 1961 as amended by the Karnataka
Land Reforms (Amendment) Act I of 1974. In order to appreci-
ate the submissions made to us, it will be useful to set out
the relevant provisions of the Act before it was amended by
Act I of 1974. Section 2(6) as it stood before the amendment
defined "basic holding" as meaning land which was equal to
two standard acres. "Ceiling area" was defined as meaning
land which was equal to eighteen standard acres. "Court" was
defined to mean the court of Munsif within the local limits
of whose jurisdiction the land was situate. "Family holding"
was defined as meaning land equal to six standard acres.
"Small holder" was defined to mean a land owner owning land
not exceeding two basic holdings
1194
whose total net annual income including the income from such
land did not exceed one thousand two hundred rupees. "Stand-
ard acre" was defined to mean one acre of the first class of
land or an extent equivalent thereto consisting of any one
or more classes of land specified in Part A of Schedule 1
determined in accordance with the formula in Part B of the
said Schedule. Chapter II (Sections 4 to 43) contained
’General provisions relating to Tenancies’ and Chapter III
(Sections 44 to 62) dealt with ’Conferment of owner-ship on
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tenants’. Section 5 prohibited the creation or continuation
of any tenancy in respect of any land after the appointed
day and barred the leasing of land for any period whatsoev-
er. It was, however, provided that (a) any small holder
might create or continue a tenancy or lease the land owned
by him and (b) any land owner who was a minor, a widow, an
unmarried woman, a person incapable of cultivating land by
reason of any physical or mental disability or a soldier in
service in the Armed Forces of the Union or a seaman, might
create or continue the tenancy or lease the land owned by
him or her. It was further provided that tenancies of resum-
able lands could be continued until the dispossession of the
tenants under s. 14 and of non-resumable land until the date
of vesting under s. 44. Section 14 provided for resumption
of lands from tenants. Sub-section 1, 4 and 6 s. 14 may be
usefully extracted here. Sub-sections 2, 3 and 5 do not
appear to be necessary for the purposes of the present case.
Sub-Sections 1, 4 and 6 were as follows:-
’14. Resumption of land from
tenants--(1)Notwithstanding anything contained
in sections 22 and 43, but subject to the
provisions of this section and of sections 15,
16, 17, 18, 19, 20 and 41, a landlord may, if
he bona fide requires land, other than land
referred to in the first proviso to clause
(29) of sub-section (A) of section 2,
(i) for cultivating personally, or
(ii) for any non-agricultural purpose, file
with the Court a statement indicating the land
or lands owned by him and which he intends to
resume and such other particulars as may be
prescribed. On such statement being filed. the
Court shall, as soon as may be after giving an
opportunity to be heard to the landlord and
such of his tenants and other persons as may
be affected, and, having due regard to conti-
nuity, fertility and fair distribution of
lands, and after making such other inquiries
as the Court deems necessary,
1195
determine the land or lands, which the land-
lord shall be entitled to resume, and shall
issue a certificate to the landlord to the
effect that the land or lands specified in
such certificate has been reserved for resump-
tion; and thereupon the right to resume pos-
session shall be exercisable only in respect
of the lands specified in such certificate and
shall not extend to any other land.
Explanation:- Subject to such rules as may be
prescribed. the Court within the jurisdiction
of which the greater part of the land held by
the landlord is situated shall be the Court
competent to issue a certificate under this
section."
(2) X X X X X X X X
X
(3) x x x x x x x x x
(4) In respect of tenancies existing on the
appointed day, as soon as may be after the
expiry of fifteen months from the appointed
day, as soon as may be after the statement
under sub-section(1) is filed, the Court shall
after such inquiry as it deems fit, determine
the lands which will be non-resumable lands
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leased to tenants for purposes of this Act.
(5) x x x x x x x x x
(6) Notwithstanding anything contained in
sub-section (5), where the landlord belongs to
any of the following categories, namely:-
(i) minor;
(ii) a person incapable of cultivating land by
reason of any physical or mental disability,
(iii) a widow;
(iv) an unmarried woman;
Then, the application to the Court for posses-
sion of land shall be made, within fifteen
months from the appointed day or one year from
the date on which--
(a) in the case of category (i), he attains
majority;
1196
(b) in the case of category(ii), he ceases to
be subject to such physical or mental disabil-
ity;
(c) in the case of category (iii), she remar-
ries;
(d) in the case of category (iv), she marries,
whichever is later:
Provided that where land is held by
two or more joint landlords, the provisions of
this sub-section shall not apply unless
all such landlords, belong to the categories
specified in clauses (i) and (ii) and the
application shall be made within one year from
the date on which any one of such landlords
ceases to belong to any such category and an
application by any one of the joint-holders
shall be deemed to be a valid application on
behalf of all the joint holders:
Provided further that where a person
belonging to any of the categories specified
in clause (i) or (ii) of this subsection, is a
member of a joint family, the provisions of
this sub-section shall not apply unless all
the members of the joint family belong to the
categories specified in clauses (i) and (ii),
but where the share in the joint family of a
person belonging to any of such categories has
been separated by metes and bounds before the
filing of the statement under sub-section (i),
if the Court on inquiry is satisfied that the
share of such person in the land separated,
having regard to the area, assessment, classi-
fication and value of the land is in the same
proportion as the share of that person in the
entire joint family property, and not in a
larger proportion, the provisions of the sub-
section shall be applicable to such person."
(7) x x x x x x x x x
(8) x x x x x x x
x x
Section 15 provided for resumption of land by soldiers and
seamen. Section 16 prescribed the conditions restricting
resumption of land under s. 14. It is necessary to extract
the whole of s. 16. It was as follows:-
"16. Conditions restricting resumption of land
under section 14. The right of a landlord to
resume for cultivating the land personally
under section 14, shall be subject to the
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following conditions, namely:-
1197
(1) If the landlord owns land not exceeding
two basic holdings he shall be entitled to
resume one half of the land leased to the
tenant:
Provided that the right to resume by such
landlord shall be subject to the condition
that in the case of a protected tenant, such
tenant, shall be left with at least one stand-
ard acre of the land actually held by him,
which-ever is less.
(2) If the landlord owns land exceeding two
basic holdings, he shall be entitled to resume
one-half of the area leased to the tenant,
provided that the total area resumed by the
landlord does not exceed three family hold-
ings.
(3) No landlord.who has been cultivating
personally land exceeding three family hold-
ings shall be entitled to resume any land
leased.
(4) The right to resume land under clauses (1)
to (3) shall be subject to the further condi-
tion that the land resumed from all the ten-
ants holding under the landlord together with
the’ extent of land, if any, cultivated by the
landlord personally and any non-resumable land
held by him shall not exceed three family
holdings.
(5) In respect of lands cultivated with plan-
tation crops, the landlord shall not be enti-
tled to resume more than one-half of the land
leased to a tenant.
(6) If more tenancies than one are held under
the same landlord, then the landlord shall be
entitled to resume land only from tenants
whose tenancy or tenancies are the shortest in
point of duration:
Provided that the landlord shall be enti-
tled to resume lands held by protected tenants
only if the required extent of land cannot be
resumed from tenants other than protected
tenants:
Provided further that where such tenancy
or tenancies shortest in point of duration
shall on resumption leave with the tenants
land in extent which will be less than a
1198
basic holding, the resumption shall be made in
respect of tenancy or tenancies next longer in
point of duration.
(7) The right to resume land by the landlord,
other than a landlord owning land not exceed-
ing two basic holdings, shall be subject to
the further condition that in the case of
protected tenants, each protected tenant shall
be left with a basic holding or the land
actually held by him, whichever is less.
(8) The right to resume land from any tenant
shall be exercisable under s. 14 only once.
(9) The income by the cultivation of the land
of which he is entitled to resume shall be the
principal source of income for the maintenance
of the landlord.
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(10) If as a result of the resumption of land
under section 14, a fragment is created, the
person entitled to the larger part of the land
shall be entitled to the fragment also.
(10 A) If any person has after the 18th Novem-
ber, 1961 and before the appointed day trans-
ferred any land, otherwise than by partition,
then, in calculating the extent of land owned
by such person for purposes of the preceding
clauses, the area so transferred shall be
taken into consideration, and land exceeding
the resumable area so calculated shall be
deemed to be non-resumable land, and such
person shall not be entitled to resume such
non-resumable land.
Explanation-For purposes of this clause, a
land shall be deemed to have been transferred,
if it has been transferred by act of parties
(whether by sale, gift, mortgage, with posses-
sion, exchange, lease or any other disposi-
tion) made inter vivas.
( 10 B) Notwithstanding anything contained in
clauses (1) to (10) (both inclusive)., or s,
142, the extent of land, if any, resumable, by
any landlord in Bombay Area shall be subject
to the restrictions and conditions specified
in sections 31A, 3lB and 31C of the Bombay
Tenancy and Agricultural Lands Act, 1948, as
inserted by the Bombay Tenancy
1199
and Agricultural Lands (Amendment) Act 1955
(Bombay Act 13 of 1956), notwithstanding the
provisions of the Bombay Tenancy (Suspension
of Provisions and Amendment) Act, 1957 (Mysore
Act 13 of 1957).
(10 C) Notwithstanding anything contained in
clauses (1) to (10) (both inclusive), or s.
142, the extent of land, if any, resumable, by
any landlord in the Hyderabad Area, shall be
subject to the restrictions and conditions
specified in the Hyderabad Tenancy and Agri-
cultural Lands Act, 1950, as in force in the
Hyderabad Area on the 1st November 1956.
(11) No landlord who at any time before the
appointed day had resumed land from any tenant
for personal cultivation under the Bombay
Tenancy and Agricultural Lands Act, 1948, or
the Hyderabad Tenancy and Agricultural Lands
Act, 1950, shall be entitled to resume again
under section 14 any land left with the same
tenant."
Section 44 provided for the vesting of certain
lands in the State Government. Sub-sec. 1 was
as follows:
"(1) As soon as may be after the determination
of the non-resumable lands under sub-section
(4) of section 14, by each Court, the State
Government may by notification declare that
with effect from such date as may be specified
in such notification (hereinafter referred to
as the date of vesting) all the non-resumable
lands determined by such Court which are
leased to tenants, whether protected or other-
wise, and all lands leased to permanent and
other tenants referred to in the first proviso
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to clause (29) of sub-section (A) of section 2
in the area within jurisdiction of such Court
shall stand transferred to and vest in the
State Government."
Section 45 provided for the registration of tenants as
occupants of land on certain conditions. Section 47 provided
for the payment of compensation to the land owner in regard
to the extinguishment of rights in lands vesting in the
State Government under s. 44. Chapter IV (sections 63 to 79)
dealt with ’ceiling on land holdings’. Section 63 prescribed
the ceiling on the extent of land which any person may hold
either as a land-owner, landlord or tenant or as a mortgagee
with possession or otherwise or partly in one capacity and
partly in another.
1200
Section 68 provided for the vesting of land surrendered by
the owner in the State Government, Section 72 provided for
payment of compensation for lands surrendered to and vested
in the State Government. We are not concerned with Chapters
V, VI, VII, and VIII. Chapter IX dealt with ’Procedure and
Jurisdiction of Court and Appeals’. Section 112 prescribed
the duties of the court and among the duties were "(g) to
issue a certificate relating to reservation of land for
resumption under sub-section (1) of s. 14 and (h) to deter-
mine the non-resumable lands under sub-sec. (4) of sec. 14."
Sections 113, 114 and 115 provided for enquiry by the court
and the procedure to be adopted. Section 118 provided for an
appeal from the Court to the District Court.
The broad scheme of the provisions mentioned or set out
above was that there was not only to be a ceiling on the
holding of land, the system of leasing of land was to be
abolished and cultivating tenants were to be invested with
rights of ownership. However, certain limited classes of
cases were recognised where leases were permitted on the one
hand and on the other tenants were deprived of the right to
remain in possession of the land. It was provided that
leases were permissible in cases when the landlord was under
some disability as specified in s. 5. It was also provided
that a land owner could seek, subject to the prescribed
limits, resumption of land from tenants, if he bona fide
required the land for cultivating personally or for any
non-agricultural purpose. The right to resume land for
personal cultivation was no doubt subject to several severe
conditions, one of the most important of which was that the
income by the cultivation of the land which he was entitled
to resume should be the principal source of income for the
maintenance of the land owner. In other words, the Act while
fixing a ceiling on the holding of land and generally con-
ferring ownership rights on tenants, did not altogether
ignore the interests of the smaller landlords and did in
fact offer some measure of protection to those who desired
to personally cultivate the tenanted land.
The Act was substantially amended in 1974. ’Basic hold-
ing’ and ’family holding’ ceased to be defined. "Ceiling
area" was defined to mean the extent of land which the
person or family was entitled to hold under s. 63. Section 5
was amended and the provisos were omitted. It was however
provided by sub-sec. 2 that the prohibition against creation
of tenancies or leases would not apply to tenancies created
by a soldier or a seaman. The savings in respect of a minor
widow or a minor woman under the original sec. 5 was taken
away. Section 14 was omitted. Section 16 was also omitted.
Section 44 was amended. The new sub-section 1 of sec. 44 is
as follows:-
1201
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"44(1) All lands held by or in the possession
of tenants (including tenants against whom a
decree or order for eviction or a certificate
for resumption is made or issued) immediately
prior to the date of commencement of the
Amendment Act, other than lands held by them
under leases permitted under Section 5, shall,
with effect on and from the said date, stand
transferred to and vest in the State Govern-
ment."
A new section 48 was introduced providing for the Constitu-
tion of Tribunals, a Tribunal for each taluq consisting of
the Assistant Commissioner of the Revenue Division and four
other members to be nominated by the State Government of
whom one shall be a person belonging to the scheduled castes
or scheduled tribes. No qualifications were prescribed for
the nomination of persons to membership of the Tribunal.
Sub-section 8 of section 48 provided that no legal practi-
tioner shall be allowed to appear in any proceeding before
the Tribunal. Section 48A dealt with the procedure to be
adopted by the Tribunal in its enquiry into applications
made under s. 45 for registration of a person as an occu-
pant. Sec. 112A provided for the duties of the Tahsildar and
s. 112B provided for the duties of the Tribunal. The provi-
sion for an appeal from the decision of the court and the
further right of revision under the amended Act were taken
away and there was no right of appeal or revision against
the decision of the Tribunal. Thus, we see that the 1974
Amending Act took away the right which was saved by the
original Act in favour of the widow, unmarried woman, minor
and disabled person to create a tenancy or lease the land.
The more important right which was taken away by the 1974
Amendment was the right of the landlord to resume the land
if he bona-fide required the land for personal cultivation
or for a nonagricultural purpose. The right to resume the
land if he bona-fide required the land for personal cultiva-
tion was denied by the Amending Act even if the income by
the cultivation of the land which he was entitled to resume
was the principal source of income for the maintenance of
the landlord.
The principal submission of the learned counsel for the
appellants was that the 1974 amendment in so far as it took
away the right of a landlord to resume possession of the
tenanted land where he bonafide required the land for per-
sonal cultivation and had no other principal source of
income for his own maintenance, was ultra vires, notwith-
standing its inclusion in the Ninth Schedule, as it offended
the basic structure of the Constitution. Another submission
which was
1202
made by the learned counsel was that the provision for the
constitution of a Tribunal consisting of persons with un-
specified qualifications in the place of a court was simi-
larly ultra vires the powers of the State Legislature. The
third submission of the learned counsel was that s. 47(B)
which excluded legal practitioner from appearing before the
Tribunals was in conflict with s. 30 of the Advocates’ Act
and had,’ therefore. to yield.
It is necessary for us to mention here that the princi-
pal Act was included in the IXth Schedule of the Constitu-
tion on October 20, 1965 and the Amendment Act of 1974 was
similarly included in the IXth the Schedule on September 7,
1974.
We do not think that it is necessary to hark back to the
decisions of this court rendered prior to the one in Waman
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Rao & Ors. v. Union of India, [ 1981] 2 SCR 1. One of the
petitioners who presented his case in person did argue that
Waman Rao’s case to the extent that it upheld Arts. 31-A,
31-B and 31-C and to the extent that it upheld the validity
of the legislations impugned therein required reconsidera-
tion. We do not agree that it is necessary either to recon-
sider or to go behind Waman Rao for the purposes of this
case. Chandrachud, CJ. speaking for the majority of the
judges of the Constitution Bench stated their conclusions in
regard to Arts. 31-A, 31-B and 31-C as follows:-
"(1) The Constitution (First Amendment) Act,
1951 which introduced Article 31A into the
Constitution with retrospective effect and
section 3 of the Constitution (Fourth Amend-
ment) Act, 1955 which substituted a new clause
(1), sub-clauses (a) to (e), for the original
clause (1) with retrospective effect, do not
damage any of the basic. or essential features
of the Constitution or its basic structure and
are valid and constitutional being within the
constituent power of the Parliament.
(2) Section 5 of the Constitution
(First Amendment) Act 1951 introduced Article
3lB into the Constitution which reads thus:
"3lB x x x x x x x x x
In Keshvananda Bharati (1973,
Suppl., SCR 1) decided on April 24, 1973 it
was held by the majority that Parliament has
no power to amend the Constitution so as to
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damage or destroy its basic or essential
features or its basic structure. We hold that
all amendments to the Constitution which were
made before April 24, 1973 and by which the
9th Schedule to the Constitution was amended
from time to time by the inclusion of various
Acts and Regulations therein, are valid and
constitutional. Amendments to the Constitution
made on or after April 24, 1973 by which the
9th schedule to the Constitution was amended
from time to time by the inclusion of various
Acts and Regulations therein, are open to
challenge on the ground that they, or any one
or more of them, are beyond constituent power
of the Parliament since they damage the basic
or essential features of the Constitution or
its basic structure. We do not pronounce upon
the validity of such subsequent constitutional
amendments except to say that if any
Act/Regulation included in the 9th Schedule by
a Constitutional amendment made on or after
April 24, 1973 is saved by Article 31A, or by
Article 31C as it stood prior to its amendment
by the 42nd Amendment, the challenge to the
validity of the relevant Constitutional Amend-
ment by which that Act or Regulation is put in
the 9th Schedule, on the ground that the
Amendment damages or destroys a basic or
essential features of the Constitution or its
basic structure as reflected in Articles 14,
19 or 31, will become otiose.
(3) Article 31 C of the Constitution,
as it stood prior to its amendment by section
4 of the Constitution (42nd Amendment) Act,
1976, is valid to the extent to which its
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constitutionality was upheld in Keshavananda
Bharati. Article 31C, as it stood prior to the
Constitution (42nd Amendment) Act does not
damage any of the basic or essential features
of the Constitution or its basic structure.
(4) All the Writ Petitions and Review
Petitions relating to the validity of the
Maharashtra Agricultural Lands Ceiling Acts
are dismissed with costs."
In the course of the submissions, the learned counsel
suggested that the 1974 Amendment Act was not a law pertain-
ing to agrarian reform; nor, it was said, was it a law
directed towards securing that the ownership and control of
the material resources of the community were so distributed
as best to subserve the common good or that the operation of
the economic system did not result in the concentration of
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wealth and means of production to the common detriment. It
was suggested that the 1974 Amendment ’Act far from setting
out to achieve these goals set out in quite opposite direc-
tion by seeking to reduce to destitution small landlords
whose sole means of livelihood was the tenanted land which
they were allowed to resume for personal cultivation. It was
said that the original Act was very fair as it recognised
poverty amongst landlords as well as poverty amongst tenants
and afforded a measure of protection to the poorer sections
of the landlords. We are unable to agree with the submission
that the Amendment is not aimed at agrarian reform or at
securing the objectives mentioned in Arts. 39(b) and (c) of
the Constitution. It is too late in the day to contend that,
in the existing system of economic relations, ownership of
land to the tiller of the land is not the best way of secur-
ing the utmost utilisation of land, a material resource of
the community for the common good of the entire community.
It is now well recognised by leading economists everywhere
that in the absence of common ownership of land and in the
existing system of economic relations, the greatest incen-
tive for maximum production is the feeling of identity and
security which is possible only if the ownership of the land
is with the tiller. It is obviously in recognition of this
principle that ’landlordism’ was sought to be totally done
away with by the amendment of s. 5 of the Act, by the omis-
sion of secs, 14 and 16 and by the amendment of s. 44. If
between a landlord who did not himself personally cultivate
the land and a tenant who so cultivated the land, the legis-
lature preferred the cultivating tenant, we are unable to
hold that such preference is not part of a programme of
agrarian reform pursuant to the Directive Principles con-
tained in Arts. 39(b) and (c). We do not have the slightest
doubt that the amendment was a law clearly aimed at agrarian
reform, to secure the Directive Principles contained in
Arts. 39(b) and (c). It is true that one of the conditions
subject to which alone a landlord could resume land for
personal cultivation under s. 16 of the Act was that the
income from the land proposed to be cultivated by the land-
lord on resumption should be the principal source of income
for the maintenance of the landlord. But it is important to
notice that the question of resumption of land from a tenant
would not arise unless a tenant was already cultivating the
land. If, therefore, a tenant is already cultivating the
land and if, presumably, that is the source of his liveli-
hood, there is no reason why he should be dispossessed to
enable a landlord whose source of livelihood it was not
until then to make it his principal source of maintenance
hereafter. We do not think that any provision of the Amend-
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ing Act offends the basic structure of the Constitution.
In regard to the constitution of the Tribunal, it was argued
that
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very important questions fell for consideration under s. 48A
and it was wholly wrong that the decision of such questions
should be left, not to a judicial Tribunal, but to a Tribu-
nal consisting of members nominated by the State Government
with no regard for any qualification. Our attention was
invited to several decisions of the Karnataka High Court
where the functioning of such iII-constituted Tribunals was
exposed and castigated. It is true that it was commented in
some of those cases that the Tribunals were functioning in a
most unjudicial manner. quite often without applying their
minds at all to the questions at issue and in some cases, in
utter violation of the principles of natural justice. We are
unable to see how the mal-functioning of some of the Tribu-
nals can possibly vitiate the provision relating to the
Constitution of the Tribunal and the entrustment of the
decision of certain issues to the Tribunal. We do not want
to enter into a discussion of the question whether a lay
Tribunal cannot function more efficiently than judicial
Tribunal in resolving certain peculiar questions. There can
be no doubt that while the decision of some disputes require
a trained judicial mind to be applied to it, there are many
other questions which do not require the application of any
trained judicial mind. The disputes contemplated by s. 48A
do not appear to be disputes of a nature where the applica-
tion of a trained judicial mind is absolutely essential. We
also notice that Land Tribunals have functioned very well in
West Bengal and Kerala where under the respecting State Acts
more complicated questions than the ones under s. 48A are
entrusted to Land Tribunals. The failure of the Land Tribu-
nals to function efficiently in the State of Karnataka has
been apparently taken note of by the Legislature itself and
the Act has since been amended making provision for an
appeal and revision. So much to the credit of the Karnataka
Legislature. But we do not see how the failure of some of
the land Tribunals to function efficiently can be said to be
sufficient to stigmatise wholesale, the functioning of all
the Tribunals constituted under the Act and to invalidate
the provisions of the Act relating to Tribunals.
The last submission was in regard to sub-sec. 8 of
sec. 48 which prohibited legal practitioners from appearing
in proceedings before the Tribunals. The argument was that
s. 48(8) was repugnant to s. 30 of the Advocates Act, 1961
and s. 14 of the Indian Bar Councils Act. It was said that
the State Legislature was not competent to make a law repug-
nant to laws made by Parliament pursuant to Entries 77 and
78 of List 1 of the 7th Schedule of the Constitution. The
submission of the learned counsel is fully supported by the
judgment of a Full Bench of High Court of Punjab and Haryana
in Jaswant Kaur v. State of Haryana, AIR 1977 Punjab &
Haryana 22 1. We adopt the reasoning of
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the High Court of Punjab & Haryana and direct that s. 48(8)
will not be enforced so as to prevent Advocates from appear-
ing before the Tribunals functioning under the Act. In
regard to the decisions already rendered by the Tribunals we
do not think that it is necessary to reopen them on the
ground that legal practitioners were not allowed to appear
before the Tribunals in those cases. All the civil appeals
are, therefore, dismissed,’ in the circumstances without
cost.
N.P.V. Appeals dismissed.
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