Petition Nos
1345 163579 458 935
1418 and 169280
Under Article 32 of the Constitution
Sukumar Ghosh for the Petitioners in WP No 134579
SN Kacker Govinda Mukhoty and Rathin Das for the Respondent in WP No 134579
P Keshva Pillai for the Petitioner in WP No 163579
Rathin Das for Respondent No 2 and Ors
In WP No 163579
Bimal Kumar Datta Mrs L Arvind and AK Sen Gupta for the Petitioner in WP No 45880
SN Kacker and Rathin Das for Respondent No 2 and Ors
in WP No 45880
SC Majumdar Bimal Kumar Datta Mrs L Arvind and AK Sen for the Petitioner in WP No 93580
953 Sripal Singh for the Petitioners in WP No 1418 of 1980 and 169280
Rathin Das for Respondent Nos 2 and Ors
in WP Nos 935 1418  169280
The first plank of argument related to the constitutional validity of the 1955 Act
The second plank of argument was confined to the validity of the West Bengal Land Reforms Amendment Act 1972 hereinafter referred to as the Amendment Act of 1972  which was in the nature of a ceiling Act prescribing a particular ceiling of the area of land which could be retained by the tenant
So far as the Ceiling Act viz the Amendment Act of 1972 is concerned it is conceded by the counsel for the petitioners that the constitutional validity of the aforesaid Act is clearly concluded by a recent decision of this Court in Waman Rao  Ors
vs Union of India  Ors
where a Constitution Bench of this Court rejected the various grounds of challenge in respect of the constitutionality of various ceiling Acts passed by the States concerned
In view of this decision the learned counsel for the petitioners was fair enough to state that he does not want to press his contention regarding the constitutional validity of the Ceiling Act
Similarly the learned counsel for the petitioners fairly conceded that as the 1955 Act alongwith its amendments upto 1972 has been placed in the Ninth Schedule of the Constitution it was immune from challenge and was saved by the protective umbrella contained in article 31B of the Constitution
In this connection this position was made absolutely clear in Waman Rao s case supra where this Court observed as follows  Thus in so far as the validity of Article 31B read with the Ninth Schedule is concerned we hold that all Acts and Regulations included in the Ninth Schedule prior to April 24 1973 will receive the full protection of Article 31B
Those laws and regulations will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution
 954 In the instant case it is clear that the 1955 Act as also the Amendment Act of 1972 were added to the Ninth Schedule being entry Nos 60 and 81 prior to April 24 1973
In these circumstances it is manifest that the aforesaid Acts ale completely immune from challenge on the ground that they are violative of any of the rights enshrined in Part III of the Constitution
The learned counsel for the petitioners therefore was fully justified in making the concession before us
The argument of the learned counsel for the petitioners in WP No 1345 of 1979 which has been adopted by the counsel for the petitioners appearing in other petitions centres round the validity of 1 The West Bengal Land Reforms Amendment Act 1977 published in the Gazette Extraordinary on 3 2 1978 and 2 Section 20B sub sections 3 4 and 5 of the 1955 Act
So far as the challenge to the constitutional validity of this section was concerned it was confined only on the ground that the said sub sections were violative of article 14 of the Constitution of India as being discriminatory and arbitrary
It was contended that once the land holder viz the tenant was given the right of personal cultivation and was permitted to get the land cultivated by a Bargadar on the basis that the bargadar would share half the produce there was no warrant for not allowing the tenant to resume the land where the bargadar had voluntarily surrendered or abandoned the land
In order to consider this argument it may be necessary to examine the status of the bargadar under the 1955 Act
Section 22 defines bargadar thus  Bargadar  means a person who under the system generally known as adhi barga or bhag cultivates the land of another person on condition of delivering a share of the produce of such land to that person and includes person who under the system generally known as kisani cultivates the land of another person on condition of receiving a share of the produce of such land from that person
 Section 16 of the 1955 Act provides that where the tenant brings in a bargadar on the land the produce of the land may be shared in the proportion of 50 50 or 75 25
There are also provisions in the 1955 Act for enforcement of the right of the tenant to get his share of the produce from the bargadar which have not been challenged before us
It would be seen that section 17 permits the cultivator to terminate the cultivation of the land by a bargadar and resume possession under his own cultivation if the conditions mentioned in clauses 955 a b and d of sub section 1 of section 17 are satisfied
Clause d may be extracted thus That the person owning the land requires it bona fide for bringing it under personal cultivation
 Thus the cultivator has a right to get back the land for personal cultivation if he requires it for his bona fide use and proves the same to the satisfaction of the authority appointed under section 171
It was argued by the counsel for the petitioners that on a parity of reasoning contained in section 17 there was no reason why where the bargadar had voluntarily surrendered or abandoned the land the facility of cultivating the land personally by the tenant should be denied to him
Sub sections 3 4 and 5 of s 20B of the 1955 Act run thus 3 If such officer or authority determines that the bargadar had not voluntarily surrendered or abandoned the cultivation of the land which was being cultivated by him as such and what he had been compelled by force or otherwise to surrender or abandon the cultivation of such land such officer or authority shall restore the bargadar to the cultivation of the land or where the bargadar is not available or is not willing to be restored to the cultivation of such land the person whose land was so cultivated shall not resume personal cultivation of the land but he may with the permission of such officer or authority get the land cultivated by any person referred to in section 49 who is willing to cultivate the land as a bargadar
4 If such officer or authority determines that the bargadar had voluntarily surrendered or abandoned the cultivation of the land which was cultivated by him as such the person whose land was being so cultivated shall not resume personal cultivation of such land but he may with the permission of such officer or authority have the land cultivated by any person referred to in section 49 who is willing to cultivate the land as a bargadar
5 Any contravention of the provisions of sub section 3 or sub section 4 shall be an offence punishable with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both
 Sub sections 3 and 4 prescribe the procedure which is to be adopted where a bargadar voluntarily surrenders or abandons the 956 cultivation of the land
Under these provisions the tenant is not allowed to resume personal cultivation but has to get the land cultivated by some other person with the permission of the officer or authority concerned
Realising the force of the argument Mr section N Kacker appearing for the State of West Bengal with his usual persuasiveness submitted that sub sections 3 and 4 are extremely harsh but the rigours of these sub sections can be softened if we read down section 17d and interpret it in such a way as to permit a tenant to resume the land under clause d of section 17 if the Bargadar voluntarily surrenders or abandons the land
We are however unable to agree with this argument because it will amount not only to distorting and misinterpreting clause d but also to causing serious violence to its plain language which cannot be done It would appear that clauses a b and c of sub section 1 of section 17 of the 1955 Act are the only grounds given on which a tenant can get the land back for his personal cultivation
The contingency where the bargadar voluntarily surrenders or abandons the land is neither mentioned in clauses a b and c nor is directly or indirectly contemplated by them
In these circumstances
if we accept the contention of Mr Kacker it would amount to introducing something into section 17 which is not there and this is diametrically opposed to the well known canons of interpretation We are however constrained to observe that there does not appear to be any logical justification for the provisions of sub sections 3 and 4 of section 20B
It is understandable that when once the cultivator chooses to bring a bargadar on the land the interest of the bargadar should be duly protected and has been made heritable
So far there can be no objection and such a course is in consonance with the object of the statute
But when the Bargadar on his own volition surrenders or abandons the land there is no reason why the tenant should not be allowed to resume cultivation and instead be compelled to get the land cultivated by some other person nominated by the authority concerned under section 49 of the 1955 Act
This provision therefore appears to us to be extremely harsh and works serious injustice to the rights of the tenants particularly after the ceiling area of the tenant has been considerably reduced by the Amendment Act of 1972
Thus the tenant having a small area guaranteed to him for his unit he should have at least fuller and 957 more effective rights to get that area cultivated by him or even by a bargadar of his choice subject to resuming the same if the bargadar surrenders or abandons the land
The amendment doubtless recognises the right of the ownership of the tenant within the ceiling area and yet to deny him the right of resuming cultivation of the land from the bargadar inducted by him after the bargadar voluntarily surrenders or abandons the same and forcing or imposing someone else to cultivate the land on behalf of the tenant appears to be contrary to the very tenor and spirit which sections 17 and 20B of the 1955 Act seem to subserve Unfortunately however though the provisions of sub sections 3 4 and 5 of section 20B which is only a penal section perilously border on arbitrariness and amounts to serious curbs on the fundamental right of the cultivator to pursue his occupation we cannot however strike down these provisions because they are contained in the Amendment Act of 1972 which has been placed in the Ninth Schedule prior to April 24 1973 and therefore fall within the protective umbrella and are immune from challenge
It will however be for the legislature which is the best judge of the needs of its people to give a suitable relief to the tenant and soften the rigours of the harsh provisions of sub sections 3 4 and 5 of section 20B on the lines indicated by us
With these observations the arguments of the learned counsel for the petitioners on this ground are overruled
We now come to the second plank of the argument which comprises the challenge to the proviso and the Explanation to section 2 of the 1955 Act
This provision having been brought into force after the 24th of April 1973 falls beyond the ambit of article 31B and is not covered by the protective umbrella of that Article
In these circumstances the challenge to the constitutionality of this provision could be entertained by us
Mr Kacker did not controvert this position
The impugned proviso and the Explanation which were added to clause 8 of section 2 by the West Bengal Land Reforms Amendment Act 1977 may be extracted thus Provided that such person or member of his family resides for the greater part of the year in the locality where the land is situated and the principal source of his income is produced from such land
Explanation The term family shall have the same meaning as in clause c of section 14K It was submitted that the proviso insists that the cultivator or member of his family must reside in the locality where the land is 958 situate for the greater part of the year and thus deprives the petitioners of their right guaranteed to them under Art 191 e and g of the Constitution inasmuch as it compels the petitioner to reside in the village and prevents them from either going to or residing in any other place in India
The second ground of challenge to the constitutionality of the proviso was that it places a serious curb on the right of the petitioners to carry on their occupation other than agriculture
As regards the first argument we are unable to agree with the learned counsel because the object of the proviso is to safeguard the interest of the tenant himself so that he may give whole hearted attention to the personal cultivation of the land which has been secured for him by virtue of a valuable piece of agrarian reform
If the tenant is allowed to go out of the village and reside at other places then the benefit conferred by the 1955 Act cannot be fully utilised by the tenant and would frustrate the very purpose for which agrarian reforms are meant
Moreover the land is given to the tenant as the tiller of the soil fundamentally for the reason that cultivation is his main source of sustenance as is mentioned in the proviso itself
If therefore the principal source of sustenance of the tenant is agriculture it would be futile for the tenant to say that he should be permitted to follow other avocations or occupations in the main which will defeat the very purpose for which the proviso has been enacted
The proviso does not debar him from following any other occupation but once a tenant wants to have the land to himself for personal cultivation he must elect whether to pursue the profession of cultivation or some other occupation
Thus even though there is some amount of restriction both on the right of the petitioners to reside or follow any other occupation such a restriction cannot be said to be arbitrary or unreasonable
It is well settled that where a restriction is imposed by the legislature in public interest in order to advance a particular purpose or carry out the dominant object
such a restriction is undoubtedly a reasonable one within the meaning of clauses 4 and 5 of article 19 of the Constitution
Moreover in the instant cast the restriction does not amount to complete deprivation of the right of the tenant to reside elsewhere because the words for the greater part of the year  leave sufficient scope to the tenant to reside elsewhere for a part of the year if he so desires
Furthermore the Explanation adopts the definition of family which is the same as defined in section 14K of the 1955 Act which runs thus i himself and his wife minor sons unmarried daughters if any 959 ii his unmarried adult son if any who does not hold any land as a raiyat iii his married adult son if any where neither such adult son nor the wife nor any minor son or unmarried daughter of such adult son holds any land as a raiyat iv widow of his predeceased son if any where neither such widow nor any minor son or unmarried daughter of such widow holds any land as a raiyat v minor son or unmarried daughter if any of his pre deceased son where the widow of such predeceased son is dead any minor son or unmarried daughter of such predeceased son does not hold any land as a raiyat but shall not include any other person
 Thus it is not necessary that the tenant should himself reside in the village for the greater part of the year and it is sufficient if any member of the family which includes his wife unmarried adult married adult minor son and so on remains in the village and this would amount to substantial compliance of the conditions of the proviso
The restriction therefore is partial and in public interest and bears a close nexus with the object of the 1955 Act viz to achieve agrarian reforms
The fundamental rights enshrined in article 19 of the Constitution are not absolute and unqualified but are subject to reasonable restrictions which may be imposed under sub clauses 4 and 5 of article 19
Whenever a complaint of violation of fundamental rights is made the Court has to determine whether or not the restrictions imposed contain the quality of reasonableness
In assessing these factors a doctrinaire approach should not be made but the essential facts and realities of life have to be duly considered
Our Constitution aims at building up a socialist state and the establishment of an egalitarian society and if reasonable restrictions are placed on the fundamental rights in public interest they can be fully justified in law
The principles laying down the various tests of reasonableness have been very aptly enunciated in the case of State of Madras vs VG Row which is almost the locus classicus on the subject in question
In that case Shastri CJ speaking for the Court observed as follows  It is important in this context to bear in mind that the test of reasonableness wherever prescribed should be 960 applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases
The nature of the right alleged to have been infringed the underlying purpose of the restrictions imposed the extent and urgency of the evil sought to be remedied thereby the disproportion of the imposition the prevailing conditions at the time should all enter into the judicial verdict
 The case has been consistently followed by later decisions of this Court right uptodate Another important factor to consider the reasonableness of restrictions is if the restrictions imposed are excessive or dispreportionate to the needs of a particular situation
Further if the restrictions are in implementation of the directive principles of the Constitution the same would be upheld as being in public interest because the individual interest must yield to the interest of the community at large for only then a welfare state can flourish
Applying these tests to the facts of the present case we are satisfied that the restrictions contained in the impugned proviso cannot be said to be unreasonable for the following reasons The dominant object of the proviso is to abolish the age old institutions of absentee land holders by insisting that the cultivator to whom land is allotted must give full and complete attention to the soil and as a result of which there will be a maximum utilisation of the agricultural resources which would increase production
Under the Amendment Act of 1972 an adult unmarried person is entitled to hold an area up to 250 hectares which is equal to 672 acres a tenant with a family of two or more is entitled to hold 1236 hectares and a tenant having a family of five or more is entitled to hold 7 hectares which is equal to 1223 acres being the maximum area permissible
Thus the area left to the tenant is quite vast and appreciable and if the tenant wants to bring this area under cultivation in right earnest it would hardly leave him time to quit the village and pursue other avocations of life
It is obvious that the tenant has to remain in the village for the purpose of cultivating the lands sowing the seeds growing it and harvesting it
These processes would doubt less require the presence of the tenant for a greater part of the year which is what the proviso predicates
If the 961 tenant is permitted to leave the village for more than half the year then the very purpose of giving such a vast area for cultivation to a tenant will be foiled
Moreover the proviso merely insists that the tenant should remain in the village or its periphery for greater part of the year which appears to be not only reasonable but absolutely essential if the land has to be cultivated in a scientific manner in order to yield the maximum possible production which would result in better and equitable distribution of agricultural products for the use of the people of the country
Another aspect of the proviso is that the land is given to the tenant only if his main source of sustenance is from agriculture so that the land may be reserved only for the tiller of the soil and none else
Hence the restrictions imposed therefore by the proviso are undoubtedly in public interest and in consonance with the concept of promoting and accelerating agrarian reforms which is the prime need of the hour
For these reasons therefore the challenge that the proviso violates article 19 1 e and g must fail
The last contention put forward by the petitioners was that the proviso is also violative of article 14 inasmuch as it is extremely arbitrary and discriminatory
We are unable to uphold the challenge on the ground that the proviso violates article 14 because we do not find any element of arbitrariness in the proviso
If the statute insists that the tiller of the soil must remain in the village for a greater part of the year in order to cultivate the land which has been given to him and thereby increase the produce
Of the land no serious prejudice is caused to the tenant because that is the purpose for which he has himself secured the land
Secondly as the proviso operates equally to all the tenants governed by it no question of discrimination at all arises
Thus this argument also is wholly untenable and must fail
For the reasons given above we hold that both the Act of 1955 including the Amendment Act of 1972 and the proviso introduced a by the Amendment Act of 1977 are constitutionally valid
As we have made certain observations regarding the harshness of the provisions of sub sections 3 4 and 5 of section 20B of the 1955 Act let a copy of this judgment be sent to the Hon ble Chief Minister of West Bengal
The petitions are dismissed without any order as to costs


Summary:
The West Bengal Land Reforms Act 1955 permitted a tenant land holder to get the land cultivated by a bargadar on the basis that the bargadar would share tho produce and the Act contained provisions for enforcement of the right of the tenant to get such share
Section 17 permitted the tenant to terminate the cultivation of the land by a bargadar and resume possession for his own cultivation on certain contingencies one of them being that he requires it bona fide for personal cultivation
The West Bengal Land Reforms Amendment Act 1972 provided for the reduction in the ceiling area of the tenant and incorporated sub sections 3 4 and 5 of section 20B of the 1955 Act which provided that where the bargadar had voluntarily surrendered or abandoned the cultivation of the land the facility of cultivating the land personally by the tenant should be denied to him
The West Bengal Land Reforms Amendment Act 1977 inserted a Proviso and an Explanation to clause 8 of section 2 of the 1955 Act which provided that a person or member of his family should reside in the greater part of the year in the locality where the land is situated and the principal source of his in come is derived from the land and that family  shall have the same meaning as in clause c of section 14
The petitioners in their writ petitions to this Court assailed 1 The West Bengal Land Reforms Act 1955 as also amendments made to the said Act upto 1977 contending that the 1955 Act was constitutionally invalid and that the Amendment Act of 1972 was in the nature of a Ceiling Act prescribing a particular ceiling for the area of the land which should be retained by the tenant and that sub sections 3 4 and 5 of section 20B of the 1955 Act were violative of Article 14 of the Constitution as being discriminatory and arbitrary Once the tenant was given the right of personal cultivation and was permitted to get the land cultivated by a bargadar on the basis that the bargadar would share the produce there was no warrant for not allowing the tenant to resume the land where a bargadar had voluntarily surrendered or abandoned the land and to deny the right of cultivating the land personally by the tenant and 2 the Proviso 951 and the Explanation to section 2 of the 1955 Act deprive the petitioners of their rights guaranteed under Article 191e and g of the constitution in as much as it prevents them from either going to or residing in any other place in India and places a serious curb on their right to carry on an occupation other than agriculture
On behalf of the respondents it was submitted that the rigour of sub sections 3 and 4 can be softened if clause d of section 17 is read down and interpreted in a way as to permit a tenant to resume the land under clause d of section 17 if the bargadar voluntarily surrenders or abandons the land
Dismissing the writ petitions  HELD 1 i
The West Bengal Land Reforms Act 1955 including the Amendment Act of 1972 and the proviso introduced by the Amendment Act of 1977 are constitutionally valid
961 G In the instant case the 1955 Act and the Amendment Act of 1972 having been added to the Ninth Schedule as Entry Nos 60 and 81 prior to April 24 1973 are immune from challenge as being violative of Part III of the Constitution
954 A Waman Rao  Ors
vs Union of India  Ors AIR 1981 SC 271 referred to
ii Clauses a b and c of sub section 1 of section 17 of the 1955 Act are the only grounds on which a tenant can get the land back for his personal cultivation
The contingency where the bargadar voluntarily surrenders or abandons the land is neither mentioned nor directly or indirectly contemplated by them
The contention of the respondent cannot be accepted for it would introduce something into section 17 which is not there and this is diametrically opposed to the well known canons of interpretation
956 D E iii There is no logical justification for the provisions of sub sections 3 and 4 of section 20B When once the cultivator chooses to bring a bargadar on the land the interest of the bargadar is protected and has been made heritable
But when the bargadar on his own volition surrenders or abandons the land there is no reason why the tenant should not be allowed to resume cultivation and instead be compelled to get the land cultivated by some other person nominated by the authority concerned under section 49 of the 1955 Act
This provision therefore appears to be extremely harsh and works serious injustice to the rights of the tenants particularly after the ceiling area of the tenant has been considerably reduced by the Amendment Act of 1972
956 E G iv Though the provisions of sub sections 3 4 and 5 of section 20B a perilously border on arbitrariness and amount to serious curbs on the fundamental right of the cultivator to pursue his occupation they cannot be struck down because they are contained in the Amendment Act of 1972 which has been placed in the Ninth Schedule prior to April 24 1973
It will however be for the legislature which is the best judge of the needs of its people to give a suitable relief to the tenant and soften the rigours of these harsh provisions
957 C D 2 The object of the proviso is to safeguard the interest of the tenant himself so that he may give wholehearted attention to the personal cultivation of 952 the land
The proviso does not debar him from following any other occupation but once a tenant wants to have the land to himself for personal cultivation he must elect whether to pursue the profession of cultivation or some other occupation
Thus even though there is some amount of restriction both on the right of the petitioners to reside or follow any other occupation such a restriction cannot be said to be arbitrary or unreasonable
958 C E F In the instant case the restriction does not amount to complete deprivation of the right of the tenant to reside elsewhere because the words for the greater part of the year  leave sufficient scope to the tenant to reside elsewhere for a part of the year if he so desires
It is not necessary that the tenant should himself reside in the village for the greater part of the year
It is sufficient if any member of the family which includes his wife unmarried adult married adult minor son and so on remains in the village
This would amount to substantial compliance of the conditions of the proviso
The restriction therefore is partial and in public interest
958 G 959 D 3 Whenever a complaint of violation of fundamental rights is made the court has to determine whether or not the restrictions imposed contain the quality of reasonableness
In assessing these factors a doctrinaire approach should not be made but the essential facts and realities of life have to be duly considered
Our Constitution aims at building up a socialist state and the establishment of an egalitarian society and if reasonable restrictions are placed on the fundamental rights in public interest they can be fully justified in law
959 F G State of Madras vs VG Row   referred to
4 As the proviso operates equally to all the tenants governed by it no question of discrimination arises
961 F