Full Judgment Text
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PETITIONER:
RAMANLAL GULAB CHAND SHAH ETC.
Vs.
RESPONDENT:
STATE OF GUJARAT & ORS., ETC.
DATE OF JUDGMENT:
19/04/1968
BENCH:
HIDAYATULLAH, M. (CJ)
BENCH:
HIDAYATULLAH, M. (CJ)
SIKRI, S.M.
BACHAWAT, R.S.
MITTER, G.K.
VAIDYIALINGAM, C.A.
HEGDE, K.S.
CITATION:
1969 AIR 168 1969 SCR (1) 42
CITATOR INFO :
R 1970 SC 398 (2)
R 1975 SC1193 (17)
ACT:
Bombay Tenancy and Agricultural Lands Act (Bom. Act 67 of
1948) as amended by Bombay Act 13 of 1956, s. 65-Whether
confers arbitrary naked power--If ultra vires--Art.
31A(1)(b) of Constitution--Management for limited
Period--Scope of--Act amended after inclusion in Schedule
IX--If protected by Art. 31-B of Constitution.
HEADNOTE:
Section 65 of the Bombay Tenancy and Agricultural Lands Act,
1948, which was one of the Aots that had been included in
the Ninth Schedule to the Constitution, was amended by
Bombay Act 13 of 1956, to give the State, the power of
taking over the management of any land on the ground that
full and efficient use of the land had not been made for
purposes of agriculture for two consecutive years, for
reasons not beyond the holder’s control. Under s. 65(2), on
the assumption of management, the provisions of Chapter IV
of the Act which contains ss. 44 and 61 apply to such land
mutatis mutandis. Under s. 61, the State Government may
renounce the management when it is satisfied that it is no
longer necessary.
The appellants were for several years cultivating their land
by ploughing it, sowing therein good seeds of grass and
cutting the grass grown thereon and using it as fodder for
their cattle. The concerned authority under the Act issued
a notice to them to show cause why management of the land
should not be taken over by the State. The appellants
showed cause, but the concerned authority held that the land
was cultivable, that grains and fruits could be grown on it,
that therefore full and efficient its,-, ,of the land was,
not made for two consecutive years and directed that the
management of the land Should be taken over on behalf of the
state. The appellants challenged the order in the High
Court’, but their petitions were dismissed.
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In appeal to this Court, on the question whether the
amendment to s.65 is ultra vires and therefore the orders
passed thereunder are illegal,
HELD : The amendment to s. 65 is not protected from
challenge by Arts. 31-A or 31-B of the, Constitution, and
since the amendment confers arbitrary ’and unreasonable
power on the concerned officer, it is ultra vires, and the
orders passed thereunder, taking over management of the
lands, could not be upheld.
(1) Article 31A does not protect the amendment to the
section.
Article 31A(1) (a) deals with acquisition of an estate or
rights therein, and extinguishment or modification of such
rights, whereas Art. 3 1A(1) (b) specifically provides for
management by the, State. Therefore, cl. (a) is not
attracted and the matter should be considered in the light
of cl. (b). But that clause can be invoked only if
management of any property is taken over by the State in
public interest or to secure proper management, for a
limited period. Merely because there is a possibility of -a
return of
43
the land to the original owner, it could not be said that
the management was for a limited period. Section 61 itself,
which provides for termination of management, does not set
any time limit for the management. Moreover, though the
provisions of Chapter IV are made applicable to lands whose
management is taken over, so far as lands of non-landholders
are concerned, it is under the rules that management is
carried on Under r. 35, the manager makes a report after
about a year to enable the Government to decide whether it
is necessary to continue management or releaser the land.
The management may be continued for periods of 5 years at a
time on the strength of periodic reports, but, if management
is to continue beyond 10 years, a formal inquiry is
necessary before Government decides to continue the
management. Thus, assuming that the rules read with s. 61
could indicate a limited period of management the rules, in
fact, do not indicate such a time limit. Without a limit of
time the management would be, an excuse for deprivation of
property without compensation. Therefore the protection of
Art. 31A(1)(b) is not ,available. [53F-54G; 55B, D-E, G-H]
(2) Article 31B and the Ninth Schedule could not be called
in aid to protect the amendment.
(a) The Article gives protection to all the statutes listed
in Schedule IX of the Constitution, but the impugned
amendment was made after the Act was listed. Therefore, the
amended section could not be said to have been considered
when the Act was included in the Ninth Schedule. If the
amended section is also accepted as unassailable, it will
have The effect of the State Legislature doing something
beyond its competence, namely, amending the Ninth Schedule
by including something new in it. [52F]
(b) The preamble to the Act and s. 44 have the protection
of Art. 3 1B .and are made applicable by s. 65(2) to lands
whose; management is taken over by the State. Even assuming
by such applicability, that they give validity and
protection to s. 65, such protection is given only to the
unamended section, because, the preamble and s. 44 deal with
lands of landholders, whereas, the impugned amendment to s.
65, carries it into new fields by applying it to the lands
of non-landholders also. [52G-H]
(3) The amendment to s. 65 gives unguided power to the
concerned officer. It is therefore ultra vires and the
orders passed thereunder are invalid.
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Agriculture includes growing of grass, and other definitions
emphasise the need of growing grass by including the
operation in the word ’cultivation’. Grass is as important
for agricultural communities as foodgrains and fruits, and
therefore the Act gives importance to both. There is
nothing to show from an agrarian point of view that grass
grown on the lands in question was not necessary at all or
that it was being inefficiently grown. No objective tests
are laid down for deciding when cultivation can be said to
be efficient or when a different kind of cultivation can be
imposed upon the land. A person is entitled to hold and
enjoy his property as he thinks best, and if regard is to be
had for the benefits of society a clear law and a clear
determination are required, But, no provision is made for
inquiry to determine the questions and no opportunity is
given to the cultivator to change his cultivation from one
kind to -another No criteria are laid down even with regard
to management on behalf of the State as to when it is to be
considered efficient. The officer concerned, purely on the
basis of his subjective satisfaction had held that the and
could grow grain or fruits. and on such opinion the land was
to be taken away. [56G-57E]
44
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 17511773,
1799-19161 2451-2452, 2187-2189, 2214-2220, 2358-2372, 2391,
2577-2582/66 and 48-73, 88-104, 106, 107, 620, 705-708, 715-
719, 814-852, 894-908, 10041065, 1069 and 1557 of 1967.
Appeals from the judgments and orders, dated May 4, 5,1966
of the Gujarat High Court in Special Civil Application No.
260 of 1966 etc.
B.R.L. lyengar, Ravinder Narain, O. C. Mathur, B. Dutta and
Bhuvanesh Kumar, for the appellants (in all the appeals).
C.K. Daphtary, Attorney-General, N. S. Bindra, R. H. Dhebar,
S. P. Nayyar, for the respondents (in all the appeals).
The Judgment of the Court was delivered by
Hidayatullah, C.J. These appeals come before us on a refer-
ence by the Constitution Bench referring the question-
whether the amendment of S. 65 of the Bombay Tenancy and
Agricultural Lands Act, 1948 by s. 35(1) of the Bombay Act
XIII of 1956, which added the words :
or the full and efficient use of the land has
not been made for the purpose of agriculture,
through the default of the holder or any other
cause whatsoever not beyond his control."
has the protection of Arts. 31-A and 31-B of the
Constitution. At the hearing of this reference before this
special Bench (Which included Judges of the _Original
Constitution Bench) it was decided to enlarge the reference
to include the whole appeals so that they might be decided
in their entirety at the same sitting.
These are appeals against the judgment and order of the High
Court of Gujarat, 4/5 May, 1966 from many petitions question
ing the declaration made by the Deputy Collector, Bulsar
under s. 65 of the Act. Below is given the text of the
section with the amended portion material to these appeals
underlined. As a result of the declaration the appellants
stand to lose possession of their lands. The facts on which
the several declarations have come to be made may now be
stated.
The appellants own and possess lands in the district of
Bulsar and claim to carry on agricultural operation by
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raising and cutting grass used as fodder. They were served
with notices under S. 65 of the Act. A sample notice is
Annexure ’B’ to the petition of Ramanlal Gulabchand Shah in
the High Court. It was issued from the office of the Deputy
Collector on February 5, 1965 addressed to Ramanlal
Gulabchand Shah. It read as follows
"...............................
"................................
45
This is to inform you that during the inquiry
made by us it has been found that you are
holding the following grass land to-ether with
the others
(here follow particulars)
On making inquiry it has been found that on
account of your fault (not) beyond your
control you have allowed to grow the grass
naturally in the aforesaid land of your
possession continuously for two years namely
1963-64 and 1964-65, and in two years prior to
that kept the said land uncultivated. That
you have, not made full and efficient use of
the said land for the purpose of agriculture.
Therefore, I Shri M. B. Sheikh, Dist. Deputy
Collector. Bulsar, in view of the authority
vested in me under section 65 of the Tenancy
Act, have to inform you and call upon you to
show cause as to why the management of the
aforesaid land or a portion thereof should not
be assumed by the Government under section 65
of the Tenancy Act.
In consequence of the notice the parties appealed and denied
the allegation that for two consecutive years they had not
cultivated these lands. Ramanlal Gulabehand in his reply
stated that :
id land cultivated by plough and by sowing
good seeds of grass therein, we have made the
grass to
"65. Assumption of management of lands which
remained uncultivated.
(1) If it appears to the State Government
that for any two consecutive years, any land
has remained uncultivated or the full and
efficient use of the land has not been made
for the purpose of agriculture, through the
default of the holder or any other cause
whatsoever not beyond his Control the State
Government may, after making Such inquiry as
it thinks fit, declare that the management of
such land shall be assumed. The declaration
so made be conclusive.
(2) On the assumption of the management,
such land shall vest in the State Government
during the continuance of the management and
the provisions of Chapter IV shall mutatis
mutandis apply to the said land :
Provided that the manager may in suitable
cases give such land on lease at rent even
equal to the amount of its assessment,
Provided further that, if the management of
the land has been assummed under sub-section
(1) on account of the default of the tenant,
such tenant shall cease to have any right of
privilege under Chapter II or III, as the case
may be, in respect of such land, with effect
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from the date on and from which such manage-
ment has been assummed."
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grow therein and by ploughing the land it is
brought in level and in this manner formerly
after cultivating the land with plough the
seeds have been sown therein and since last
six years or thereafter by cultivating the
said lands continuously with the Tractor and
sowing seeds of grass therein, the grass is
being -town in the said land. Therefore, that
allegation that said land has been kept
uncultivated continuously for two years namely
1963-64 and 1964-65 and for the years prior to
that made in the notice is absolutely false
and we, specifically deny the same. Further,
over and above the cultivation in the said
land we are all’-1o making the said land clean
and also we are erecting hedge round about it
we are also removing the thorns and- other
things lying in the said land and also keep in
continuous watch over the same as soon as the
grass grown therein, and when the grass
becomes fit to be cut, we cut the same and
bring the same at our house for our cattle and
or cattle eat the same for the whole year....
(sic)"
The case was then sent to the Additional Mamlatdar for
report. The Mamlatdar’s report is not before us. On
February 28, 1965 the Dist. Deputy Collector, Bulsar made
his declaration and we ,get the gist of the Mamlatdar’s
report from his declaration. It appears that-the Mamlatdar
reported that the lands were "cultivable" and "food crops
and fruit trees can be grown" but the owners had merely
"allowed grass naturally to grow therein" and by such
operations only they had "not made full and efficient use of
the land in the two consecutive years viz., 1963-64 and
1964-65". The Deputy Collector declared that he was
satisfied that full and efficient use of the lands had not
been made consecutively during the years 1963-64 and 1964-65
as contemplated under s. 65 of the Act and that the default
was not due to circumstances beyond the control of the
owners. He also declared that the lands could grow food
crops or fruit trees. He accordingly appointed the
Mamlatdars as managers of said lands direction that they
"should, take immediate steps to lease out the lands for
cultivation of food crops and manage tile land as provided
for management of estates under the provisions contained in
Chapter IV of the Bombay Tenancy and Agricultural Lands Act,
1948". This declaration was questioned by the writ
petitions from which the present appeals arise.
Before the High Court six grounds were urged in support of
the petition. Broadly speaking, they were; the
constitutionality of s. 65 of the Act under Arts. 14,
19(1)(f) and (g) and 31: breach of principles of natural
justice on tile ground that the Deputy Collector who made
the declaration did not hear the ,parties; and lastly that
the declaration was vitiated on account of
47
omission to take into consideration factors relevant for the
purpose of taking action. Another ground of attack was that
the exercise of power was mala fide and actuated by
political considerations. This last ground was not
presented to us and therefore may not be mentioned again.
The constitutional validity of the addition to s. 65 by the
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Amending Act was also questioned before us. The argument
was that the added words introduced a condition which, even
if taken with the Rules, was destructive of the right of a
person to hold and enjoy his property and to deprive him of
it for all times without compensation. It was also
submitted that in the law thus made too much power and
discretion was left to the officer concerned, without
indicating_ any standards of an objective nature to control
them. It was also contended that ’,,he appellants, in any
event, were fulfilling the requirements of cultivation as
laid down in the Act itself.
Before entering into a discussion of these points we may
first see what the Act enacts to achieve by itself and by
its Rules. The Act has a long preamble which indicates the
object of the law. It says inter alia :-
"AND WHEREAS on account of the neglect of a
landholder or disputes between a landholder
and his tenants, the cultivation of his estate
has seriously suffersocial conditions of
peasants to ensuring the fun and efficient use
of land for agriculture, it is expedient to
assume management of estates held by
landholders and to regulate and impose
restrictions on the transfer of agricultural
lands, swelling houses, sites and lands
appurtenant thereto belonging to or occupied
by agriculturists, agricultural labourers and
artisans in the Province of Bombay and to make
provisions for certain other
purposes
hereinafter appearing; it is hereby enacted as
follows :-"
The following deflutions are material to our purpose.
Section 2(1) provides
"Agriculture" includes horticulture, the
raising of crops, grass or garden produce, the
use by an agriculturist of the land held by
him or a part thereof for the grazing of his
cattle, the use of any land, whether or not an
appendage to rice or paddy land, for the
purpose of rab manure but does not include
allied pursuits, or the cutting of wood only;
Provided that in the case of such tracts of
land abounding in natural growth of grass as
the State
48
Government may, by notification, in the official Gazette,
specify, ’agriculture’ shall include the cutting of grass
for any purpose."
"To cultivate’ is defined by s. 2(5). It reads
" "to cultivate" with its grammatical
variations and cognate expressions means to
till or husband the land for the purpose of
raising or improving agricultural produce,
whether by manual labour or by means of
,cattle or machinery, or to carry on any
agricultural operation thereon; and the
expression "uncultivated" shall be construed
correspondingly.
Explanation-A person who takes up a contract
to cut grass or to gather the fruits or other
produce of trees on any land, shall not on
that account only be deemed to cultivate such
land."
"To hold land" is defined by s. 2(6c) and means only that
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the person must be lawfully in actual possession of the land
as an owner or tenant, as the case may be. "Land-holder" is
defined in s. 2(9) thus :
" "Land-holder" means a zamindar, jagirdar,
saranjamdar, inamdar, talukdar, malik or a
khot or any person not hereinbefore specified
who is a holder of land or who is interested
in land and whom the State Government has
declared on account of the extent and value of
the land or his interest therein to be a land-
holder for the purposes of this Act."
It must be noticed that this definition does not take into
account .a tenant. That word is defined in s. 2(18) and
reads :
"Tenant means a person who holds land on lease
and includes:-
(a) a person who is deemed to be a tenant
under section 4;
(b) a person who is protected tenant; and
(c) a person who is permanent tenant;
and the word ’landlord’ shall be construed
accordingly:-
Chapter II deals with tenancies, but with its provisions we
are not concerned because they bear only upon matters con-
nected with the setting up of tenancies, their continuance
and termination, the quantum of rent payable .and other such
matters. Section 5 of this Chapter prescribes the ceiling
area of tenancy lands with reference to jirayat, seasonal
irrigated and perennially irrigated lands. Section 7
authorises Government to vary the
49
ceiling area and economic holding taking into consideration
the situation of the land, its productive capacity, its
situation in backward areas and any other factor that may be
prescribed. Chapter III then deals with special rights and
privileges of tenants and makes provision for distribution
of land for personal cultivation. We are not concerned with
any matter involved in it. Chapter IV deals with management
of estates held by landholders. In view of the definition
of ’landholder’ this part cannot be applied directly to non-
landholders but the provisions of s. 65(2) make the
provisions of Chapter IV applicable ’lo the lands of non-
landholders. The intention of Chapter V. is to arrange for
the management of the land of landholders with a view to
better management and the liquidation of their debts. The,
relevant sections in this chapter (which applies in this
indirect manner to non-landbolders lands) are ss. 44 to 48.
58, 59 and 61. Section 44 reads :
"Notwithstanding any law for the time being in
force, usage, or custom or the terms of
contract or grant, when the State Government
is satisfied that on account of the neglect of
a landholder or disputes between him and his
tenants, the cultivation of his estate has
seriously suffered, or when it appears to the
State Government that it is necessary for the
said purpose or for the purpose of ensuring
the full and efficient use of land for
agriculture to assume management off any
landholder’,-, estate, a notification
announcing such intention shall be published
in the Official Gazette, and the Collector
shall cause notice of the substance of such
notification to be given at convenient place
in the ’locality where the estate is situated.
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Such notification shall be conclusive."
Section 45 vests the estate in the State Government and the
management is deemed to commence from. the date on which the
notification is published. Section 46 gives the effect of
declaration of management. As a result of the publication
of the notification under s. 44 all proceedings and
processes in civil courts in respect of actions against the
landholders get automatically stayed and while the
management continues, no further proceedings can be
commenced. The holder of the estate also becomes incapable
of entering into any contract, mortgage, etc. or to grant
valid receipts for rents and profits. The manager, however,
has competence to do all these things. Section 47 then
enumerates the powers of the Manager in the management. He
is entitled to receive and recover aft rents and profits due
in respect of the property under management and for this
purpose possesses all the powers of the holder as well ,is
the powers of the Collector under the law for the time being
in force. Under s. 48 the
50
Manager is entitled to deduct from the recoveries the cost
of the management and repairs, Government revenue and all
other debts to Government, and rent to a superior holder and
such periodical allowances as the Collector from time to
time fixes for the maintenance and other expenses of the
holder and such members of his family as the Collector
directs and the costs of such improvements of the estates as
the Manager thinks necessary or as approved by the
Collector. The balance is then applied by the Manager for
the liquidation of the debts and liabilities of the land-
holders and if anything remains thereafter, it is paid to
the land-holder. Sections 49 to 57 deal with claims to be
made against the estate and the power to remove the mortgage
in possession. Sections 58 and 59 may be read here. They
confer powers of sales and lease on the Manager and to pass
receipts for any moneys, rents or profits raised or received
by him and the discharge of the persons on the strength of
such receipts.
"58. Subject to the rules made under this Act,
the Manager after the liquidation scheme has
been sanctioned as aforesaid, shall have power
to sell or grant on lease all or any part of
the estate under the management :
Provided that the estate or any part thereof
shall not be sold or leased for a period
exceeding ten years without the previous
permission of the Collector;
Provided further that the Collector shall not
give such permission unless he is satisfied
that such sale or lease is necessary for the
benefit of the estate (or unless such sale is
in favour of a tenant under section 32, 32F,
32 1 or 32 0).The decision of the Collector
shall be final.
59.The Manager’s receipt for any moneys, rents
or profits raised or received by him under
this Act shall discharge the person paying the
same therefrom or from being concerned to see
to the application thereof."
Section 61 next provides for the termination of the
management. It must be read in full :
"61. The State Government, when it is of
opinion that it is not necessary to continue
the management of the estate, by order
published in the Official Gazette direct that
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the said management shall be terminated. On
the termination of the said management, the
estate shall be delivered into the possession
of the holder, or, if he is dead, of any
person entitled to the said estate together
with any balances which may be due to the
credit
51
.lm15
of the said holder. All acts done or purporting to be, done
by the Manager during the continuance of the management of
the estate shall be binding on the holder or to any person
to whom the possession of the estate has been delivered."
The provisions though applicable to landholders are applied
by s. 65(2) mutatis mutandis to the lands of non-
landholders. In other words, the scheme of the management
(apart from liquidation of debts) applies to non-
landholders. The other provisions dealing with management
for the liquidation of debts, which are in the nature of the
provisions of the Court of Wards Act, may not be considered
here because they are not relevant to our purpose.
We may next see some of the Rules which have been framed;
under s. 82 of the Act. Rule 30 provides for a notice
before action under s. 44 is taken and provides that the
landholder’s statement shall be recorded as regards the
intention of the Government to assume management of the
estate. Rule 33 provides that when a Manager proposes to
sell any estate or any part +hereof under s. 58 he shall
give notice to the landholder to show cause why the estate
or a part thereof should not be sold -and must afford him an
hearing. The method of selling or leasing of the estate
under management or any part thereof is indicated in Rule 34
and it is by public auction unless such a course is, in the
opinion of the Manager, unnecessary or inexpedient. Rule 35
is important and may be set down in extenso :
"35. Period of continuance of management of
estates :-
(1) The Manager of an estate of which
management has been assumed shall, before the
31st day of March following the year in which
the management has been assumed. Send to the
State Government a report regarding the mana-
gement of the estate and shall state whether
in his opinion it is necessary to continue the
management for the purpose for which it was
assumed.
(2) After taking into consideration the
report of the Manager made under sub-rule (1),
the State Government shall decide whether the
management should be terminated under section
61 or continued further and if so, for what
period, such period not being in excess of
five years at a time.
52
(3) If the State Government decides to
continue the management the, Manager shall,
from time to time, forward his report through
the Collector ,and shall in any case submit a
report not later than two months before the,
expiry of the current period of the management
to enable Government to decide whether the
management shall be terminated under section
61 or shall further be continued :
Provided that if the management- is to be
continued beyond the expiry of ten years from
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the date on which it was assumed, the
Collector shall hold a formal inquiry in the
manner prescribed by the Bombay Land Revenue
Code, 1879, and, after recording the statement
of the landholder or any person acting on his
behalf, shall submit the record and proceeding
of the inquiry and his report to the State,
Government, which shall be taken into
consideration by the, State Government before
it decides to continue the management any
further."
The other Rules do, not bear upon the present controversy
and may be left out of consideration. We may now proceed to
consider this case.
The first question to consider is the vires of the addition
to 65 by the Amending Act, which addition has been shown in
the section quoted already. This matter has to be
considered with reference to Arts. 31-A and 31-B read with
the Ninth ’Schedule. The protection is claimed on the basis
of these two articles by the State. Article 31-B no doubt
gives protection to all statutes listed in Schedule IX of
the Constitution and this Act is so listed. But it was
listed before the amendment of s. 65 and that amendment came
to be said to have, been considered when the Amendment of
the Constitution was made. That Amendment if accepted as
unassailable will have the indirect effect of amending the
original Schedule IX by including something in it which was
not there, before. This is undoubtedly beyond the
competence of any State legislature. The argument of the
learned Attorney General that the general schemes of the
Preamble and the provisions of s. 44 made applicable by s.
65(2) both of which have the protection of Art. 31-B must
give protection is fallacious. Even if the preamble and S.
44 could be read (and we do not decide that they can be so
read) to give validity it is clear that the preamble talked
only of landholders and the addition of the words to s. 65
is intended to apply the principle to nonlandholders.
Similarly the provisions of s. 44 under the unmended. Act,
could not have been made applicable to such non-
53
landholders. The amendment of s. 65 was really carrying the
Act into new fields and not being considered as an amendment
of the Constitution, how can it claim the protection given
to the unamended Act? Therefore Art. 31-B and the Ninth
Schedule cannot be called in aid.
The matter may, however, be considered under Art. 31-A. If
Art. 31-A gives protection there would be an end to the
appellants’ contention if not the matter must be considered
on principles settled by this Court. Article 31-A was
relied upon strongly by the learned Attorney General. He
attempted to bring the amendment of s. 65 under clauses (a)
and (b) of Art. 31-A (1). We may now consider the matter
under these two clauses separately. Article 31-A(1) (a) and
(b) read :
"31-A(1) Notwithstanding anything contained in
article 13, no law providing for--
(a) the acquisition by the State of any
estate or of any rights therein or the
extinguishment or modification of any such
rights, or
(b) the taking over of the management of any
property by the State for a limited period
either in the public interest or in order to
secure the proper management of the property,
or"
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shall be deemed to be void on the ground that
it is inconsistent with, or takes away or
abridges any of the rights conferred by
article 14, article 19 or article 31."
The amendment of s. 65 gives additional power of taking over
lands of non-landholders for management on two grounds. The
first is that the land must have remained uncultivated for
the two consecutive years and the second is that full and
efficient use of the land had not been made of the land. In
so far as the first is concerned s. 65 in its original form
included that condition and’ it cannot be challenged because
of the protection of Art. 31-B read with the Ninth Schedule.
Therefore action could be taken. against any land which had
remained uncultivated for two years. The action in this
case is not taken because of this part of s. 65 But in so
far as the second part is concerned the question must arise
whether taking over of management can be said to be (a)
acquisition by the State or (b) extinguishment of the rights
of the holder or (c) modification of any such rights of
these it is impossible to say that this was an acquisition
by the State.That phrase has received construction on more
than one occasion in, this Court. Although the decisions
cannot be said to be uniform,
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one thing is certain that the taking away must be for the
Slate and by the State. Such acquisition must transfer the
ownership of the property to the State or to a corporation
owned or controlled by the State. Since S. 65 or the, other
provisions of the Act do not spell out any such thing, there
is no acquisition by the State. There is also no
extinguishment of the rights of the holder. The rights are
merely suspended and he, continues to be the owner. There
can of course be extinguishment of rights with,out
acquisition by the State but there must be extinguishment,
that is complete termination of the rights. The scheme of
the Act in S. 61 contemplates return of the, lands unless
sold to others and is those cases in which a sale is not
affected it cannot be said that there is an extinguishment
of the rights. Therefore that part ,of Art. 31-A(1) (a)
does not apply. The third part namely modification of
rights might have been considered by us but this ,Court in
Thakur Raghubir Singh v. Court of Wards, Ajmer and
another(1) gave a limited meaning to the expression and that
case has been applied on many occasions. It was observed
there :
"The learned Attorney-General laid emphasis on
the word modification" used in article 31-A.
That word in the context of the article only
means a modification of the proprietary right
of a citizen like an extinguishment of that
right and cannot include within its ambit a
mere suspension of the right of management of
estate for a time, definite or indefinite."
(emphasis added)
Thus mere suspension of the right of management of one’s
property without modification of the proprietary right was
no+ held sufficient to give protection of Art. 31-A (1) (a).
We would have given more thought to this matter but for the
re-enactment -of Art. 31-A with retrospective effect after
Thakur Raghubir Singh’s case(1). Thakur Raghubir Singh’s
case did not interpret the article as it is today. In view
of the, retrospective amendment -of the article it may be
said that this Court interpreted an article which never was
enacted in that form. Therefore the less we speak of the
matter from the angle of observations in Thakur Raghubir
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Singh’s case the better. But even so the matter is not
advanced much further.
Looking at the matter in the light of Art. 31-A as it is
today (and it must be deemed to have been so always)
’management’ is specially provided in (b) and must be
considered under that clause. The words of that clause are
’the taking over of the ,management of any property’. ’Any
property’ means property
(1) [1953] S.C.R. 1049.
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of any kind and would embrace land of landholders and non-
landholders alike. The words ’by the State’ indicate that
the taking over must be by the State. The next requirement
is that this taking over must be either in the public
interest or in order to secure the proper management of the
property. And lastly the taking over must be for a limited
period. The case here is covered by this clause and clause
(a) is therefore not attracted.
It is, however, objected that the taking over is not limited
to any period. Section 61 which is protected by the Sixth
Schedule and cannot be called in question says that the
State Government may announce the termination of the
management when it is satisfied that it is not necessary.
This does not set any limit leaving the matter at large.
The learned Attorney-General however desired us to read the
rules to show that there is a limit of time. He says that
the rules be read in conjunction with the provisions of s.
61 because the section does not give any indication of any
limit of time. Although s. 61 may not by itself be
challengeable, the rules may be, notwithstanding that they
were made under powers given by s. 82. A limit of time was
deliberately put in by the constitutional amendment to
distinguish between cases which fall within management from
those of extinguishment and modification. Without a limit
of time the management would be an excuse for deprivation of
property without compensation and that is not the intention
of Art. 31 (a). It is hardly to be thought that an antimony
between Art. 31 and 31-A (1) (b)was deliberately introduced.
We do not express an opinion whether the rules can be read
to indicate the limited period of management or that the
scheme of the Act and the rules must be viewed together in
this connection. But we are clear that the rules do, not
improve matters. Although it may not ’be possible to attack
s. 61 which enables the State to hold the property as long
as necessary as the section is protected, the action of the
State in making such rules as give no indication of a limit
of time may be a circumstance to consider if the claim of
protection is made out. Under clause (b) of Art. 3 1 A ( 1
) protection is to State action in taking over management
for a limited period and to laws enabling this to be done,
but not to management unlimited in time. Section 61 read
with s. 81 must therefore require, that any rule made should
accord with the protection given on these terms by Art. 31-A
otherwise the protection will fail. Advantage of the words
of s. 61 cannot be taken to create a permanent deprivation
of the property and yet claim protection of Art. 31-A(1)(b).
It is in this context that we must examine the provisions.
We must first clear one misapprehension and it is that the
provisions of Chapter IV can be said to apply in toto, It
must
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be remembered that that chapter is primarily concerned with
the liquidation of liability of land-holders and schemes to
effect that purpose. Section 58 does not give a clean power
of sale, but only after a liquidation scheme is sanctioned.
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That applies to landholders and may not be made applicable
to non-landholders.
To see how the management is to work in respect of non-
landholders we have to turn to the rules. Here the
pertinent rule is r. 35. That rule requires a report from
the. Manager after about a year to enable the State
Government to consider whether it is necessary to continue
management. The State Government may then decide to release
the land from management, or continue it. The management
may continue for periods of 5 years at a time on the
strength of periodic reports but if management is to con-
tinue beyond 10 years a formal inquiry is necessary and then
Government may decide to continue the management further.
No limit of time is then indicated. There is, therefore, no
limit set at all. The protection of Art. 3 1 A ( 1 ) (b) is
available only when there is a definite limit in the law for
the period of management. Neither s. 61 alone, nor read
with the rules indicates any such limit and the condition of
protection from Articles 13, 14, 19 and 31 is thus not
available. The argument of the learned Attorney-General
that so long as there is a possibility of a return of the
land to the original owner, we must construe the management
as of a limited period is not acceptable to us. It is
hardly to be expected that a return of property which is on
the Greek Kalends can be construed as a return within a
limited period. Therefore the scheme of the Act ought to
have shown the limit. It may not be possible to question
the unamended section 65 because of Art. 31-B or the
provisions of s. 61 which is also protected but in respect
of the addition to s. 65 the protection of Art. 31A(1) (b)
can only be invoked if the law can show a real limit for the
period of management. If the management is likely to
continue for an indefinite period it is not in any sense
limited and, therefore, the amended part cannot claim
protection, s. 61 notwithstanding.
Once the matter can be gone into the provisions of the addi-
tional part will have to be examined for reasonableness.
Here the difficulties are many for the State. We mention
only a few of them. There is nothing to show what are the
requirements of action. The deprivation of property is made
to depend upon the subjective determination of an officer.
Take for example this case itself. Action is taken under
the, impugned part of s. 65. AgriCulture includes growing
of grass, and other definitions emphasise the need of
growing grass by including the operation in the word
cultivation’. Grass is as important for agricultural
communities as foodgrains and fruits. Without the former
the cattle must die just as without the latter there would
be human starvation.
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The Act, therefore, gives importance to both, naming grass
along with crops and garden produce and horticulture. If
grass is being grown as an agricultural operation, one
cannot just take grass lands and convert them into orchards.
Similarly orchards cannot ’be taken and turned into
pastures. Before action is taken it must be quite clearly
established that the kind of agriculture which is being
carried on is being carried on inefficiently or that there
is some distinct advantage in the new management to carry on
the new kind of agriculture. The Deputy Collector merely
thinks that the land can grow grain or fruits. But so can
any grass land or pasture. There is nothing to show that
from an agrarian point of view grass grown in these lands
was not necessary at all or was being inefficiently grown.
A person is entitled to hold and enjoy his property as he
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thinks best. If regard is to be had for the benefits of
society a clear law and a clear determination are required.
Both the elements are missing. It is not said in what
circumstances cultivation can be said to be inefficient.. It
is also not said what would be considered efficient
cultivation and what inquiries are needed to determine this.
It is also not said under what circumstances different kind
of cultivation can be imposed upon the land. The law does
not provide for an Opportunity to the cultivator to change
his cultivation from one kind to another. It does not even
require, that the management should be efficient. After
taking over the lands the Manager can lease them to others
but it is not stated what conditions they have to observe.
Merely on the opinion of an officer, land may be taken away
’because the officer thinks that wheat is to be preferred to
fruits and fruits to grass and so on and so forth. The
management is taken over without any clear limit of time.
In these circumstances it is difficult to uphold the
declarations made in these cases or to give them the
protection of Art. 31-A(1) (b).
The appeals will, therefore, be allowed with costs and the
orders of the Deputy Collector quashed. There shall be one
set of hearing fee in each group, where same counsel
appeared for
Y.P. all the appeals.
Sup. C. I./68-5
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