vil Appeals Nos 1314 to 1318 of 1979
Appeals by Certificate from the Judgment and Order dated 441979 of the Judicial Commissioner Goa Daman  Diu in Special Civil Application Writ Petition Nos 7576 77 of 1977 103 and 111 of 1978
AND Writ Petition No 864 of 1988
Under Article 32 of the Constitution of India
G Ramaswamy Additional Solicitor General TVS Krishnamoorthy Iyer SS Ray YS Chitaley Joachin Dias AB Nadkarni Arun Madan Ms A Subhashini section Ganesh and R Swamy for the AppellantsPetitioners
Manohar section Usgaocar FS Nariman GL Sanghi MN Phadke RF Nariman SK Mehta Atul Nauda Aman Vachher Mrs Nineti Sharma SM Usgaocar and MK Dua for the Respondents
SHARMA J
The civil appeals No 1314 to 1318 of 1979 by certificate are directed against the decision of the Judi cial Commissioner of Goa Daman and Diu declaring the Goa Daman and Diu Agricultural Tenancy 5th Amendment Act 1976 as unconstitutional
The respondents are landlords in Goa
The lands were in possession of the tenants who were cultivating the same and paying rent to the respondents
The respondents were divested of their title in the lands by the provisions of the impugned Act which came in force in 1976 vesting the same in the tenants
The respondents filed five writ applications in the court of the Judicial Commissioner challenging the validity of the Amendment Act
The writ petitions were allowed by the impugned judgment
It has been held that the Act violates Articles 14 and 19 of the Consti tution and the protection of Article 31A is not available as the scheme of the Act does not constitute agrarian reform
It has been contended on behalf of the respondent writ petitioners that the landlords in Goa are generally small land holders and their condition is not better than that of the tenants and in that view the Act divesting the landlords of their title in the land and veting the same in the tenants suffers from the vice of illegal discrimination
A similar Act was earlier passed by the Maharashtra Legisla ture also which has been found to be constitutionally valid
The writ petitioners have before the court below success fully argued that the decision in that case is not applica ble inasmuch as the Maharashtra Act contains provisions fixing ceiling to which the other provisions are subject to while there is no such restriction in the present Act
The result is that although the Maharashtra Act had to be upheld as a measure of agrarian reform and thus protected by Arti cle 31A of the Constitution the present Act cannot be so interpreted
During the pendency of these appeals the impugned Amendment Act along with the main Act were included in the 9th Schedule of the Constitution and the assent of the President was received on the 26th of August 1984
Lakshmibai Narayan Patil the writ petitioner in the three of the cases in the court of Judicial Commissioner respond ent in Civil Appeals No 1314 1315 and 1316 of 1979 has challenged the constitutional amendment as illegal and ultra vires by filing an application under Article 32 of the Constitution which has 501 been numbered as Writ Petition No 864 of 1988
By the impugned Amendment Act Chapter IIA has been included in the Goa Daman and Diu Agricultural Tenancy Act 1964 hereinafter referred to as the Act Chapter III has been deleted and some consequential changes have been made in some other sections
Chapter IIA deals with Special rights and privileges of tenants as indicated by the head ing
Broadly speaking by the provisions of section 18A of this Chapter the land belonging to a landlord not in his culti vating possession on the tiller s day gets transferred to the tenant inpossession for a price to be paid to the land lord
The expression tenant  has been given a larger mean ing under the Act by section 4
By the second proviso of section 4 a sub tenant cultivating any land on or after 17
1962 has to be deemed to be a lawfully cultivating tenant notwithstand ing the fact that the creation of sub tenancy might have been prohibited by any law and the tenant prior to the creation of the sub tenancy who may be referred to as intermediary tenant is not to be treated as a tenant
The price of the land in question has to be determined and the payment made in accordance with the provisions of Chapter IIA
Separate provisions have been made with respect to special cases where tenant is a minor or has been evicted by the landlord before the tiller s day
The provisions of section 18 J provide for the resumption and disposal of the land not purchased by the tenant by reason of purchase being ineffec tive under section 18C or section 18H or due to the failure of the tenant to take steps under section 18B within time
A revenue officer described as Mamlatdar is vested with the power to dispose of such land in the manner provided in sub section 2 of section 18J
Such land has to be disposed of in the order of priority whereunder 75 of such land is to be disposed of by sale to persons belonging to Scheduled Castes or Scheduled Tribes and thereafter the remaining land to serv ing members of the Defence Forces of the country or ex servicemen or freedom fighters who agree to cultivate the land personally
If the land still remains undisposed of it first goes to agricultural labourers and thereafter to landless persons
If some of the land still remains avail able it has to be sold to a co operative farming society
Section 18 K puts a restriction on transfer of the land which the tenant acquires by purchase under the Chapter
Only with the previous sanction of the Mamlatdar any trans fer whether by sale gift exchange mortgage lease or assignment can be made
If the land owner is himself cultivating it there being no tenant or a deemed tenant he continues to be in possession without any curtailment of his rights
On the other hand in a case where the tenant 502 after getting a tenancy from the landlord inducts another person as a sub tenant who cultivates the same the benefits of the impugned provisions go to him and not to the tenant
The object of the Amending Act is thus clearly to vest the land in the tiller
The right of any person to receive merely rent is taken away for a price
The respondents who are landlords have challenged the Amendment Act whereby Chapter IIA has been inserted in the Act on the ground of illegal discrimination
The argument is that in absence of provisions for ceiling the impugned Act bestows undeserved benefit on the tenants at the cost of the landlords without reference to the respective areas in their possession
The Amendment was enforced as also the impugned judgment was delivered before the deletion of Clause f of Article 191 from the Constitution and one of the grounds which has been successfully urged before the High Court is based on Article 191f
So far Article 31A of the Constitution is con cerned the case of the respondents which has found favour with the court below is that the provisions of the impugned Amendment Act cannot be held to be a step by way of agrarian reforms and therefore cannot have the protection of the Article
This is the main thrust of the argument of Mr RF Nariman in this Court also
He has strenuously contended that for extending the protection of Article 31A1a to any particular law it is necessary that the law contains adequate measure against concentration of wealth in the hands of a few
It is claimed that fixation of ceiling is the heart and soul of agrarian reform without which it does not survive
It has been observed in the impugned judgment that from the transcripts of newspapers produced by the writ petitioners and the statements alleged to have been made by the late Chief Minister that there were very few big land holders in Goa it can be assumed that the landlords in Goa are small holders of land
Certain statements made in the affidavit filed before the Court were also referred to in this connection
An attempt was made in this Court also to urge that there could not be many big landlords in Goa and therefore their deprivation of the lands cannot be deemed to be a step towards fair distribution
It was contended that in many a case a cultivating tenant in possession of lands under different landlords may be having far larger area of land than his landlords and there cannot be any justifica tion in clothing such a tenant with title to the land at the cost of his comparatively poor landlords
The argument proceeded that so far the holdings of the tenants are concerned
a necessity of placing ceiling on the holdings cannot be denied in view of the affidavit filed on behalf of the State stating that further legislation for that purpose was in contemplation
Mr RF Nariman emphasized the fact that no such law has been 503 brought in force till now
To the last part of the argument it was tightly pointed out by the learned counsel for the appellants that since the Amendment Act was struck down by the Judicial Commissioner s Court as ultra vires further amendment in the Act by way of introducing provisions for ceiling had to await this Court s judgment in the present civil appeals
Before proceeding with the main argument of Mr RF Nariman and the cases relied upon by him it may be useful to briefly refer to the nature of the right of the landlords and the tenants under the Act before the insertion of Chap ter IIA by the impugned Amendment Act
The rights of a tenant were heritable and Sections 8 and 9 prohibited the termination of his tenancy and his eviction except where the himself surrendered his right to the landlord or where the landlord established one of the grounds specified in this regard
By an Amendment in 1966
the tenant was given by section 13A the first option to purchase the land in case the landlord proposed to sell it
By Chapter III the landlord was permitted to resume the land subject to the ceiling of an area of 2 hectares in case of paddy land and 4 hectares in other lands on the ground of bona fide requirement for personal cultivation but this right was also dependent on the fulfilment of certain conditions
This Chapter was to come into force only on a notification for the purpose which was never issued
By the impugned Amendment Act this Chapter was omitted from the Act
In effect the right of resumption contemplated by the Act never vested in the landlords before it disappeared from the statute book
It may be stated here that the 1964 Act is not under attack and the challenge is confined to its 5th Amendment whereby Chapter IIA has been included and Chapter III deleted
The statement of objects and reasons was placed before us wherein it has been mentioned that there was a similar legislation in force in the neighbouring State of Maharash tra
The reference obviously is to the Bombay Tenancy and Agricultural Lands AmendmentAct 1956 mentioned in para graph 2 above introducing similar amendments in the Bombay Tenancy and Agricultural Lands Act1948
In Sri Ram Ram Narain Medhi vs The State of Bombay 1959 Supp 1 SCR 489 the validity of the Act was upheld by a Constitution Bench of this Court
It has been contended that the Maharashtra A mending Act including provisions fixing ceiling which effec tively prevented accumulation of large areas of land in possession of the tenants and since there is no similar safeguard in the present 5th Amendment Act the aforesaid decision does not come to its rescue 504 and leads to the conclusion that in absence of similar provi sions the Act cannot be sustained
The learned counsel for the respondents relied upon the observation of several decisions of this Court in support of his contention that provisions regarding ceiling are essential for a statute enacted as a measure of agrarian reform and in their absence the same cannot claim pro tection of Article 31A of the Constitution
Article 31A1a declares that no law providing for the acquisition by the State of any estate or of any rights therein or the extinction or modification of any such rights 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 or Article 19
The 5th Amend ment Act has received the assent of the President as re quired by the first proviso
The expression estate  is undisputedly applicable in the present case in view of the provisions of clause 2 of the said Article
Although Article 31A1a does not by express language restrict its application to a particular nature of law it is now well settled that the protection of the Article is limited to the laws which serve the purpose of agrarian reform and Mr RF Nariman is right in relying upon the observations at page 90IF of the judgment in Godavari Sugar Mills Ltd and Others vs SB Kamble and Others 1975 3 SCR page 885
The learned counsel has further urged that the other observa tions in this judgment support his main argument also that in absence of provisions for ceiling a statute cannot be held to be for agrarian reform
We are unable to agree
In that case the constitutional validity of the Act amending certain provisions of the Maharashtra Agricultural Ceiling and Holdings Act was under challenge and it was sought to be saved inter alia with the aid of Article 3 1A
While discussing the scope of Article 3 1A the Court at page 902F relied upon the decision in Balmadies Plantations Ltd and Another vs State of Tamil Nadu   in the following terms In the case of Balmadies Plantations Ltd  Anr
vs State of Tamil Nadu it was held while dealing with the provisions of Gudalur Janmam Estates Abolition and Conver sion into Ryotwari Act that the object and general scheme of the Act was to abolish intermediaries between the state and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the state
The Act as such in its broad outlines was held to be a measure of agrarian reform and protected by article 31A 505 At page 903H it was observed that in a sense agrarian reform is wider than land reform
At page 905 the conclusion was summarised under 8 heads and Mr RF Nariman strongly relied on the last proposition stating 8 A provision fixing ceiling area and providing for the disposal of surplus land in accordance with the rules is a measure of agrarian reform
 It cannot be denied that the appropriately enacted statutes having provisions for fixing ceiling of holdings do fall in the category of legislation for agrarian reform but the proposition relied upon does not say and cannot be inter preted as holding that it is such an essential feature of agrarian reform without which a law cannot be included in that category
The observations at page 902F in respect of the judgment in Balmadies Plantations case quoted earlier rather negative such an assumption
The case of Sri Ram Ram Narain Medhi supra has not only been distinguished in the impugned judgment but has been relied upon for supporting the writ petitioner s argu ment
Reliance has been placed on the observations at page 495 of the reported judgment to the effect that the object of the Maharashtra Act which was under consideration in that case
was to bring about such distribution of the agricultural lands as best to subserve the common good and this object was sought to be achieved by fixing ceiling on areas of holdings
It however does not follow that fixing ceiling area of land which can be held by a person is a basic and essential requirement of land reform
Since the challenge against the Maharashtra Act was being directed to the provisions fixing ceiling it became necessary to consid er and decide the effect of those provisions pointedly
But on a careful consideration of the entire judgment there does not remain any element of doubt that a proper statute even without including provisions regarding ceiling may be entitled to the protection of Article 31A provided it is otherwise a measure of agrarian reform
As mentioned earli er the Court was deciding the question of constitutional validity of the 1956 Act which amended the Bombay Tenancy and Agricultural Lands Act enacted in 1948
The original 1948 Act did not contain the provisions of ceiling which were later introduced by the impugned amendment
If the stand of the respondents be assumed to be correct the 1948 Act could not have been in absence of the provisions of ceiling held to be a step in agrarian reform
But the Court at page 492 stated that 506 The 1948 Act had been passed by the State Legislature as a measure of agrarian reform   With respect to the 1956 Amendment Act it was said at page 493 that With a view to achieve the objective of establish ing a socialistic pattern of society in the state within the meaning of Articles 38 and 39 of the Constitution a further measure of agrarian reform was enacted by the State Legisla ture being the impugned Act hereinbefore referred to which was designed to bring about such distribution of the ownership and control of agricultural lands as best to subserve the common goods thus eliminating concentration of wealth and means of production to the common detriment emphasis added The use of the expression further measure  as mentioned above and the repetition of the said expression again at page 495 emphasise the fact that the original Act also was a measure of agrarian reform
Thus the decision instead of helping the respondents lends support to the appellants  argument
Mr RF Nariman cited a number of other decisions dealing with the validity of provisions fixing ceiling and the Court upheld those provisions on the ground that they were measures of agrarian reform but they do not support the reverse proposition as put forward on behalf of the respondents
All these decisions are therefore clearly distinguishable and we will mention briefly some of them which were heavily relied on by Mr Nariman
In the case of Sonapur Tea Co Ltd vs Must
Mazi runnessa   writ petitions were filed in the High Court challenging the validity of the Assam Fixation of Ceiling on Land Holding Act 1957
The High Court in dis missing the petitions held that the impugned Act was pro tected by Article 31A as it was a measure of agrarian re forms and imposed limits on lands to be held by persons in order to bring about its equitable distribution
The main question which was canvassed before this Court was whether the expression the rights in relation to an estate in the Article could cover the impugned Act and it was answered in the affirmative by holding that the said expression is of a very wide amplitude
At page 729 this Court observed thus 507 This Article has been construed by this Court on several occasions in dealing with legislative measures of agrarian reforms
The object of such reforms generally is to abolish the intermediaries between the State and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the State The 5th Amendment Act impugned in the cases before us satis fies this test
Similar was the position in Purushothaman Nambudiri y
The state of Kerala 1962 Supp 1 SCR 753
The case of Fida Ali and Others vs State of Jammu and Kash mir   was also considering a statute pro viding a scheme for agrarian reform which included provi sions in respect of ceiling
While upholding the Act the provisions fixing ceiling were upheld but the other observa tions in the judgment clearly indicate that the same cannot be assumed to be a condition precedent
Personal cultivation by the holder of land was emphasised as an important aspect in the following words at page 345G The golden web throughout the warp and woof of the Act is the feature of personal cultivation of the land
The expression personal cultivation  which runs through sections 3 4 5 7 and 8 is defined with care under section 27 in a detailed manner with a proviso and six explana tions
From a review of the foregoing provisions it is obvious that the Act contains a clear programme of agrarian reforms intaking stock of the land in the State which is not in personal cultivation section 3 and which though in personal cultivation is in excess of the ceiling area section 4
 In the ultimate paragraph of the judgment it was pointed that for framing a scheme for agrarian reforms it is not necessary or feasible to follow a set pattern in different parts of the country
It was observed On the other hand the predominant object under lying the provisions of the Act is agrarian reforms
Agrar ian reforms naturally cannot take the same pattern through out the country
Besides the availability of land for the purpose limited in scope in the nature of things the scheme has to fit in with the local conditions variability of climate rainfall peculiarity of terrain suitability and profitability of multiple crop patterns vulnerability of floods and so 508 many other factors in formulating a scheme of agrarian reforms suitable to a particular State
The decision therefore indicates that a flexible approach has to be adopted in deciding as to the nature of agrarian reform to be taken rather than laying down a strait jacket rule for universal application
The observations in Datta traya Govind Mahajan and Others vs State of Maharashtra and Another   were also made while examining an Act fixing ceiling of holdings and in justification of the impugned provisions it was observed that the policy in this regard was initiated following the report of the Agricultur al Labour Inquiry conducted in the 1960s and in implementa tion of this policy the Act under consideration was passed
The implication is that the fixation of ceiling was not essentially involved in agrarian reform but it had to be resorted to in the State of Maharashtra following the con clusion arrived at in the Agricultural Labour Inquiry 13
The learned counsel for the respondents also placed two cases wherein Article 31A was held to be inapplicable
In KK Kochuni and Others vs The State of Madras and Oth ers  the question of Article 31A did arise but in absolutely different context
The immediate predeces sor of the petitioner KK Kochini was the sthanee of the properties attached to the various sthanee held by him
On his death in 1925 the petitioner being the senior member became the sthanee and the respondents No 2 to 17 being the junior members of the tarwad did not get any interest in the properties
In an earlier litigation which was commenced following the passing of an Act in 1932 the petitioners  exclusive right was established up to the Privy Council stage
It was held that the Members of the tarwad had no interest therein
After the title of the sthanee was thus established the Madras Legislature passed the impugned Act in 1955 which declared that every sthanam satisfying cer tain conditions mentioned in the Act would be deemed and would always be deemed to have properties belonging to the tarwad
The petitioner KK Kochuni challenged the Act as ultra vires before this Court by an application under Arti cle 32 of the Constitution
Two other petitions were also filed one by his wife and daughters with respect to certain other properties gifted to them and the other by his son
In support of the constitutional validity of the Act it was argued on behalf of the respondents that the petitioner s sthanam was an estate within the meaning of Article 31A and therefore enjoyed the protection under that Article
The argument was that a law relating inter se the rights of a proprietor in his estate and the junior members of his family was also covered by the wide 509 pharseology used in clause 2b of Article 31A
This Court rejected the plea holding that The definition of estate refers to an existing law relat ing to land tenures in a particular area indicating thereby that the Article is concerned only with the land tenure described as an estate
The inclusive definition of the rights of such an estate also enumerates the rights vested in the proprietor and his subordinate tenure holders
The last clause in that definition viz that those rights also include the rights or privileges in respect of land revenue emphasizes the fact that the Article is concerned with land tenure
It is therefore manifest that the said Article deals with a tenure called estate and provides for its acquisition or the extinguishment or modification of the rights of the land holders or the various subordinate ten ure holders in respect of their rights in relation to the estate
The contrary view would enable the State to divest a proprietor of his estate and vest it in another without reference to any agrarian reform
It would also enable the state to compel a proprietor to divide his properties though self acquired between himself and other members of his family or create interest therein in favour of persons other than tenants who had none before The Court thus held that Article 31A 1a will not apply to an Act which does not contemplate or see to regulate the fights inter se between the landlords and tenants leaving all their characteristics intact
The Court further consid ered the judgment in Sri Ram Ram Narain s case supra and distinguished it on the ground that under the Bombay Act certain fights were conferred on the tenants in respect of their tenements which they did not have before
The other case of San jeer Coke Manufacturing Company vs Bharat Coking Coal Ltd and Another   relied upon by Mr Nariman is also of no help as the same was dealing with certain legislation in regard to mines and minerals
The question of interpreting Article 31A 1a did not arise there at all
As has been discussed above
the title to the land shall vest in the tiller and the landlord shall get the compensation
Earlier also his right to resume the land for personal cultivation was considerably restricted by the provisions of the 1964 Act
As a result of the impugned Amendment Act he has been divested of this limited right 510 for a price and the tiller shall no more be under a threat of dispossession
The impugned provisions must therefore be accepted as a measure of land reform
We reject the argument of the respondents that in absence of provisions fixing ceiling on the area of land which can be held by a person a statute cannot be accepted as a measure of land reform
The 5th Amendment Act is therefore entitled to the protection of Article 3 IA and it cannot be struck down on the ground of violation of Articles 14 and 19 of the Constitution
The judgment of the Judicial Commissioner declaring the Act as ultra vires is accordingly set aside and the writ petitions filed by the respondents are dismissed
Consequently it is not necessary to deal with the writ petition WP No 864 of 1988 filed in this Court under Article 32 challenging the inclusion of the impugned Act in the 9th Schedule of the Constitution and the same is rejected
In the result Civil Appeals No 1314 1318 of 1979 are allowed but in the circumstances the parties are directed to bear their own costs throughout
RSS Appeals allowed Petition dismissed


Summary:
The petitioners who were land owners of Himachal Pradesh challenged the constitutional validity of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act 1953 Himachal 15 of 1954 said to have been passed by the Legislative Assembly of the State of Himachal Pradesh functioning under the Himachal Pradesh and Bilaspur New State Act 32 Of 1954
The impugned Act was introduced as a bill in the first session of the Legislative Assembly of the Old Himachal Pradesh elected under the Government of Part C States Act 49 Of 1951
Before the bill could be passed the Himachal Pradesh and Bilaspur New State Act 32 Of 1954 came into force on July 1 1954 abolishing the old Act and uniting the two States into one
While the Legislative Assembly for the New State was yet to be constituted on July 7 1954 the Governor issued the following notification  The Lieutenant Governor in exercise of
the powers conferred by Section 9 of the 49 Of 1951 has been pleased to direct that the Second Session 1954 Of the Himachal Pradesh Legislative Assembly will commence from Monday the 16th August 1954 at 9 30 am in the Council Chamber Simla 4
 It was at this session that the impugned Act was passed
Its provisions were said to be drastic and to infringe articles 14 19 and 31 Of the Constitution
It was contended on behalf of the petitioners that apart from violating those Articles the impugned Act was void as it had not been passed by a duly constituted legislature
It was sought to be contended on behalf of the respondent that under the new Act the members of the Old Legislative Assembly must be deemed to constitute the legislature for the New State and it was as such called by the Governor
Held that the contention raised by the respondent was with out substance and must be negatived
It was apparent that the so called Assembly which the Governor had convened and which purported to pass the impugned Act was not the Legislative Assembly of the New State constituted under the Himachal Pradesh and Bilaspur New State Act 32 Of 1954 and as such the Act could not be regarded as a valid piece of legislation