Civil Appeals Nos 40 to 110 of 1955
Appeals from the judgment and order dated November 12 1953 of the former Judicial Commissioner s Court Vindhya Pradesh Rewa in Misc
Applications Writ Nos 51 to 119 and 121 of 1953
C K Daphtary Solicitor General of India M Adhikari Advocate General for the State of Madhya Pradesh and I N Shroff for the appellant in CAs
40 to 109 of 55 and respondent in CA No 11055
K B Asthana section N Andley J B Dadachanji Rameshwar Nath and P L Vohra for the respondents in CAs
Nos 40 51 52 54 65 and 100155 and appellant in CA No 11055
February 24
The Judgment of the Court was delivered by 108 WANCHOO J
These seventy one appeals on certificates granted by the Judicial Commissioner of Vindhya Pradesh arise out of seventy petitions under article 226 of the Constitution filed before that Court challenging the constitutionality of the Vindhya Pradesh Abolition of Jagirs and Land Reforms Act No XI of 1952 hereinafter called the Act
They were disposed of by a common judgment by the Judicial Commissioner
We shall also dispose of these appeals by a common judgment
Seventy Nos 40 to 109 out of these appeals are by the State of Vindhya Pradesh now Madhya Pradesh while one No 110 is by the Brijindar Singh a jagirdar
The case of the petitioners in the Court of the Judicial Commissioner was that the Act was unconstitutional as various provisions in it placed an unreasonable restriction on the exercise of the fundamental rights guaranteed to the petitioners under Part III of the Constitution
The Judicial Commissioner held that the Act was constitutional except for three provisions thereof namely section 221 section 37 and cl
4 e of the Schedule to the Act
The seventy appeals by the State are with respect to this part of the order declaring these three provisions unconstitutional
The appeal of Brijindar Singh is against that part of the order by which the rest of the Act was held constitutional
We shall first deal with the appeal of Brijindar singh
Learned counsel for Brijindar Singh was unable and in our opinion rightly to challenge the constitutionality of the Act as a whole in view of article 31 A of the Constitution and the decisions of this court in The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh 1 Visweshwar Rao vs The State of Madhya Pradesh 2 Raja Suriya Pal Singh vs The state of UP 3 K C Gajapati Narayan Deo vs The State of Orissa 4 Thakur Amar Singhji vs The State of Rajasthan 5 Raja Bhairebendra Narayan Bhup vs he State of Assam 6 Sri Ram Ram Narain vs The state of Bombay 7 Raghubir Singh vs The State of Ajmer now Rajasthan 8 and Atma Ram vs The State of Punjab 9 relating to similar legislation in the 1 2 3 4 1954 SCR i 5  6 1956 SCR 303
7 1939 SUPPL
1SC R 499 8 1959 Suppl
1 SCR 478 9 1959 Suppl
1 SCR 748
109 States of Bihar Madhya Pradesh Uttar Pradesh Orissa Rajasthan Assam Bombay Ajmer and Punjab
It is not necessary therefore to examine the provisions of the Act in detail
In the circumstances Appeal No 110 is dismissed but as it was not pressed we think it right that the parties should bear their own costs of this appeal
Now we turn to the appeals by the State
The object of the Act is to resume jagir lands
5 provides for the appointment of a date for the resumption of any class of jagir land by notification and power is given to the State Government to fix different dates for different classes of jagir lands
6 provides for the consequences of such resumption
Sec 7 however lays down that notwithstanding anything contained in section 6 certain lands will remain in possession of jagirdars and cl
a thereof is material and may be quoted here  The jagirdar shall continue to remain in possession of his sir and khudkasht to the extent and subject to the conditions and restrictions specified in Ch
 Sec 10 and the subsequent sections appearing in Ch
III of the Act provide for compensation and the Schedule provides the manner in which the compensation shall be computed
Then comes Ch
IV which deals with sir and khudkasht lands
20 provides for an application by the jagirdar for allotment of land for personal cultivation
21 provides for an enquiry by the Tahsildar on such application in the prescribed manner and the allotment of land and the issue of a patta thereof to the jagirdar having regard to the remaining provisions of the Chapter
Then comes section 22 which may be quoted in full  1 A jagirdar shall be allotted all sir and khudkasht lands which he was cultivating personally for a continuous period of three years immediately preceding the date of resumption
 2 A jagirdar whose jagir lands have been resumed under this Act a who is not allotted any sir or khudkasht land under sub section 1 or 110 b who had been allotted any such land which is less than the minimum area may if he applies in this behalf be allotted any other sir or khudkasht land in his personal cultivation at the date of resumption or where there is no such land or sufficient area of such land any unoccupied cultivable waste land in the jagir land subject to availability of such land so that i in a case falling under cl
a the total area allotted to him under this sub section is equal to the minimum area and ii in a case falling under cl
b the area allotted to him under this sub section together with the area allotted under sub section 1 is equal to the minimum area
Explanation In this sub section the expression minimum means ten per cent
of the total cultivated land in the jagir land at the date of resumption or 30 acres whichever is greater Provided that in no case the minimum area shall exceed 250 acres Chapter V deals with rights of tenants grove holders and occupants in jagir land and confers certain benefits on them
Chapter VI provides for the machinery and the procedure for carrying out the purposes of the Act
The last section 42 gives power to the State Government to make rules to carry out the purposes of the Act
The learned Judicial Commissioner has held that section 221 is a colourable piece of legislation
The scheme of section 22 is to give effect to section 7a by which certain lands were allowed to remain in the possession of the jagirdar
Section 221 lays down that all sir and khudkasht lands which a jagirdar was cultivating personally for a continuous period of three years immediately preceding the date of resumption shall be allotted to him by the Tahsildar
Sub section 2 provides for those cases where there is no land which can be allotted to a jagirdar under sub section
1 or where the land which can be allotted to him under sub sec tion 1 is less than the minimum area as defined in the section
In such a case the jagirdar can be allotted any other sir or khudkasht land in his personal culti 111 vation at the date of resumption upto the minimum area
Where however the minimum is not reached even after such allotment the jagirdar can be allotted under sub section
2 any unoccupied cultivable waste land in the jagir subject to availability of such land upto that area
The minimum area means ten per cent
of the total cultivated area in the jagir at the date of resumption or 30 acres whichever is greater subject to the proviso that in no case the minimum area shall exceed 250 acres
In other words section 22 1 provides that in the first instance the jagirdar will get all his sir and khudkasht land which he had been cultivating for three years continuously before the date of resumption
If however there is no such land or if the land of this kind allotted to a jagirdar is less than the minimum area he will be entitled to further allotment out of the sir or khudkasht land in his possession for less than three years to make up the minimum area
Lastly if the minimum area is not made up even by allotment of such land which has been in the jagirdar s possession for less than three years he will be entitled to allotment of unoccupied cultivable waste land subject to availability of such land to make up the minimum area but the provisions of sub section
2 are subject to a minimum of 250 acres
We have not been able to understand how these provisions can be called a piece of colourable legislation
The learned Judicial Commissioner seems to be of the view that as a period of three years  continuous cultivation is made a condition of allotment under section 221 there is discrimination between jagirdars and other occupants of land in whose case section 281 provides that every person who is entered in the revenue record as an occupant of any jagir land at the date of resumption shall be deemed to be pattadar tenant in respect of such land which shall be assessed at the village rate
The learned Judicial Commissioner was not unconscions of the provisions of article 31 A which lays down that no such legislation would be struck down on the ground of discrimination under article 14
He however thought that this was an extra condition which had been imposed so that the jagirdar mightbe deprived of as much sir and khudkasht land as possible subject 112 to the minimum and that this was done to create in convenience to the jagirdars whom the legislature did not like
He therefore thought that such legislation was altogether outside the power of the legislature and was invalid as a colourable piece of legislation
In the first place we cannot see how any discrimination can arise in circumstances like this for the jagirdars are obviously one class while the occupants of lands other than jagirdars belong to another class
Secondly even if it could be held that jagirdars and other occupants of land stood in the same class and there was discrimination under section 221 as compared to section 281 such discrimination could not be a ground for striking down section 221 in view of the specific constitutional provision in article 31 A
It was because of this difficulty that the learned Judicial Commissioner did not strike down section 221 on the ground of discrimination but held that it was a colourable piece of legislation
What is a colourable piece of legislation has been laid down by this Court in K 0
Gajapati Narayan Deo vs The State of Orissa 1
It was pointed there that  The question whether a law was a colourable legislation and as such void did not depend on the motive or bona fides of the legislature in passing the law but upon the competency of the legislature to pass that particular law and what the courts have to determine in such cases is whether though the legislature has purported to act within the limits of its powers it has in substance and reality transgressed those powers the transgression being veiled by what appears on proper examination to be a mere pretence or disguise
The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly
 Applying this principle it is obvious that the Vindhya Pradesh legislature in this case had full competence to make this provision under Entry 18 List II of the Seventh Schedule
There is no question here of transgressing those powers and veiling the transgression under a pretence or disguise
We do not think it was proper for the Judicial Commisisioner to 1 1954 SCR 1 113 ascribe motives to the legislature as he seems to have done by saying that the provision was made for creating inconvenience to a class whom the legislature did not like
Nor do we think that there is any force in the argument that article 31 A has no application to provisions dealing with allotment of land for sections 7 and 22 of the Act work out the scheme of acquisition of estates and are incidental provisions which are equally protected under that Article along with the main provisions contained in sections 5 and 6 of the Act see Raghubir Singh vs The State of Ajmer now Rajasthan 1
The provisions of section 22 as a whole provide a scheme for carrying out the intention of the legislature expressed in section 7a of the Act and are in our opinion perfectly constitutional
We now turn to section 37 of the Act
That section appears in the procedural part of the Act and is as follows  1 No civil court shall have jurisdiction to settle decide or deal with any question which is by or under this Act required to be settled decided or dealt with by the Tahsildar the Deputy Commissioner the Land Reform Commissioner or the Board of Revenue
2 Except as otherwise provided in this Act no order of a Tahsildar a Deputy Commissioner the Land Reform Commissioner or the Board of Revenue under this Act shall be called in question in any court
 Sub section
1 thus takes away the jurisdiction of the civil court to decide any matter which under the Act is to be decided by the Tahsildar the Deputy Commissioner the Land Reform Commissioner or the Board of Revenue
Sub section
2 provides that no order passed by any of these authorities shall be called in question in any court
The learned Judicial Commissioner has held this section invalid on the ground that itis repugnant to section 9 of the Code of Civil Procedure inasmuch as it takes away the jurisdiction of the civil court which it has under that section
9 lays down that the civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred
1 1959 Suppl 1 CR 478 therefore gives jurisdiction to civil courts to try all suits of a civil nature excepting those which are expressly or impliedly barred by any other law
The provision of section 37 is an express bar to the matters dealt with in the Act being agitated in civil courts
The learned Judicial Commissioner seems to think that section 9 takes away the power of the legislature of a Part State like Vindhya Pradesh to legislate with respect to the jurisdiction of courts
The power to the legislature is given by Entry 3 List 11 and cannot be affected by section 9 of the Code of Civil Procedure
As a matter of fact section 9 recognises that if a competent legislature passes a law barring the jurisdiction of a civil court the jurisdiction of the civil court to take cognizance of such suit even though of a civil nature is ousted
It was in our opinion unnecessary to go into section 22 of the Government of Part C States Act No XLIX of 1951 and compare it with article 254 of the Constitution in this connection
37 does not in any way affect section 9
All that it provides is that civil courts shall have no jurisdiction to hear certain matters of a civil nature and section 9 expressly recognizes that if such a provision is made by any law the jurisdiction of the civil courts will disappear
There is thus no question of any repugnancy between section 9 of the Code of Civil Procedure and section 37 of the Act
The legislature in this case had power to make a provision like section 37 and once it did so the last part of section 9 will apply and the jurisdiction of the civil courts will become barred by virtue of section 9 read with section 37 of the Act
The decision of the Judicial Commissioner there
fore that section 37 is ultra vires the powers of the Vindhya Pradesh legislature is not correct
Lastly we come to el
4 e of the Schedule
The Schedule provides for the method of computing compensation
Clause 3 lays down the manner in which the gross income of a jagirdar shall be arrived at
Clause 4 lays down how net income will be arrived at after making certain deductions
One of these deductions is in sub cl
e of this Clause which is as follows Where the jagirdar is allotted any sir
or khudkasht or other land or any grove under this Act an 115 amount equal to the valuation of rent for such land or grove for the basic year at the current settlement rates less the land revenue paid by him in respect of such land and grove in the basic year to be ascertained in such manner as may be prescribed
 This sub clause is in fact a contra entry to sub cl
b i of cl
The method of calculation provided by these two clauses is that the gross income is first arrived at without taking into account the land which remains with the jagirdar under section 7 a
Thereafter in order to arrive at the net income for the purpose of compensation the rent for sir and khudkasht land which remains with the jagirdar is taken into account and its value determined under el
3 b i minus the revenue payable in respect thereof
This is then deducted from the gross income for the reason that this land remains with the jagirdar
The learned Judicial Commissioner thinks that the arithmetical result of this provision is that so far as these lands are concerned the landlord has lost his proprietary interest and has to pay rent to the government but at the same time gets no compensation
it should however be noted that though the landlord may have to pay rent in future for the land remaining with him he does not pay any revenue which was payable by him so far with respect to such land
In the circumstances it cannot be said that he has been deprived of the proprietary interest without any compensation for he is relieved of the charge of paying land revenue which has also been taken into account in arriving at the net assets for that purpose and that is all that he can expect considering that the land remains in his possession for all other purposes
We are therefore of opinion that there is nothing unconstitutional in el
4 e of the Schedule
We therefore dismiss Appeal No 110 but order parties to bear their own costs
We allow Appeals Nos
40 to 109 and hold that section 22 1 section 37 and cl
4 e of the Schedule are valid and constitutional
As the respondents in these appeals have not seriously contested them we order parties to bear their own costs
Appeal No 110 dissmissed
Appeals Nos
40 to 109 allowed


Summary:
The first respondent filed an election petition for an order that the election of the appellant be declared void on the ground that the appellant had committed the corrupt practice under section 1235 of the Representation of the People Act 1951 in that he had hired a tractor for conveying women electors from their houses to places of polling and back
By an amendment application the first respondent gave particulars about the conveying of voters but he did not give any particulars regarding the contract of hiring nor did the appellant ask for such particulars
At the trial the first respondent led evidence in respect of the contract of hiring and the appellant raised no objection to the relevance of that evidence
The Election Tribunal dismissed the petition but on appeal the High Court held the charge proved and declared the election of the appellant void
The appellant contended that the election petition ought to have been dismissed because particulars of the contract of hiring which was an essential ingredient of the corrupt practice had not been given
Held per Sinha Lc
J jafer Imam K N Wanchoo and J C Shah jj that the corrupt practice under s I235 was the conveying of electors to and from the polling station and not the contract of hiring
If the election petition gave particulars about the use of a vehicle for conveying of electors to  and from the polling station the failure to give particulars of the contract of hiring as distinguished from the fact of hiring did not render the petition defective
An election petition was not liable to be 92 dismissed in limine merely because full particulars of a corrupt practice alleged were not set out
If an objection was taken and the Tribunal was of the view that full particulars had not been set out the petitioner had to be given an opportunity to amend or amplify the particulars
It was only in the event of noncompliance with the order to supply the particulars that the charge which remained vague could be struck out
Besides in the present case no material prejudice was caused to the appellant by the absence of the particulars of the contract of hiring
Sarkar J
Under section 1235 the hiring of the vehicle for conveyance of electors was an essential element of the corrupt practice and it was necessary to give particulars of the contract of hiring
But the failure to give such particulars did not render the petition liable to be dismissed
Section 83 of the Act did not provide for the dismissal of the petition for failure to furnish particulars nor did section 903 empower the Tribunal to dismiss a petition for non compliance with the provisions of section 83
The appellant was entitled to apply for particulars but he did not do so he could not at a later stage complain about the absence of the particulars