l Appeals Nos 1132 1164 1976 794 Appeals by Special Leave from the Judgment and Order dated 13 8 76 of the Bombay High Court Nagpur Bench in SCA Nos
1758 1481 213075 358 35976 2089 1456 1818 1823 1824 1950 195175 5376 80376 144075 34076 1449 1452 139475 40 771 1431 1531 153276 1652 162275 120 126 428 610 1317 183175 respective ly and Civil Appeal No 1307 of 1976 From the Judgment and Order dated 2 9 1976 of the Allahabad High Court in Civil Misc
Writ No 925775 and Civil Appeals Nos
1040 of 1975 and 1220 1248 of 1976 From the Judgment and Order dated 14 2 74 and 1 1173 of the Punjab  Haryana High Court in Civil Writ Nos 3150 3145 3210 3254 3287 3288 3293 3456 3457 3458 63 3469 3470 3472 3547 3550 3564 3565 3568 362973 and 400474 and Special Leave Petition Civil Nos 3023 3027 3894
4026 4027 3177 3197 3203 3213 3358 3359 3392 3404 3477 3483 36613663 3059 3060 3487 3488 4047 3365 3377 3406 3434 34393464 3495 3511 3516 3517 3519 3529 3551 3645 3660 36803695 3719 3782 3787 3816 3843 3846 3853 3864 3867 3868 3696 3703 3199 3467 3476 3524 3537 3597 3621 3889 3893  3899 390276  VM Tarkunde CAs
1132  1147 section N Khardekar in CAs
1132  1133 Ms Vallabh Das Mohta in CA
115676 Dr NM Ghatate section Balakrishnan AM Bapat in CAs
1132  1147 for the appellants in CAs
1132 1136 1147  1150 64
SB Wad  Mrs Jayashree Wad for the Appellants in CAs
1137 1146 1148 49
Niren De Attorney General in CAs
1132  1137 Ms MM Kazi  MN Shroff for the Respondents Niren De Attorney General RN Sachthey for the Attorney General in CAs
1132 1307  1040
K Rajendra Chowdhary for the interveners Ms Shankar Balaji Jagtap Madan Lal Fakir Chand Dudheida and Chandrab han Roopchand Dakale in CA
1132
LN Sinha Sol
OP Rana CA
No 1307 of 1976 for the Appellants
section Markendaya for the Respondents in CAs
104075  12201248 of 1976  LN Sinha Sol
Genl 1 section Wasu Advocate General Punjab OP Sharma Mrs N Uppal and Miss Musum Chaudhary for the Appellants
795 VM Tarkunde in CA
1223 Ms KP Bhandari
JB Dadachanji and DN Mishra For the Respondents in CAs
1223 122576
Mr VM Tarkunde for Mrs Gita Bhadur Ms
KP Bhandari JB Dadachanji MM Ahuja  DN Mishra for the Interveners Mrs Gita Bhadur Brij Bhushan Shinghal Smt
Led Amol Kaur Mrs Uma Shinghal in CA
KL Jagga DD Sharma Sant Singh in CAs
1220 48 and 1040
RN Sachthey State of Haryana
For the Petitioners in SLPs
Civil  Naunit Lal and Miss Lalita Kohli SLPs
3023 27 3894  4026 27
SB Wad and Mrs Jayashree Wad SLPs
3177 97 3207 13 3358 59 3392 3404 3477 3483 3661 3663 3059 69 3487 88  404776  319976
Vallabh Das Mohta NM Ghatate and section Balakrishnan SLPs
3365 77 3406 34 3439 64 3495 3511 3516 17 3519 3529 51 3645 3660 3680 95 3719 82 3787 3816 3843 46 385364 3867 68 of 1976
KB Rohtagi MK Garg and MM Kashyan SLPs
3696370376
AG Ratnaparkhi SLPs
3467 347676
VN Ganpule SLPs
Civil Nos 3524 2776
MS Gupta  BB Marwal SLPs
Civil Nos 3597 362176
RA Gupta SLPs
Civil Nos 3889 9376
Mrs section Bhandare MS Narasimhan AK Mathur A K Sharma and KC Sharma SLPs
Civil Nos 3899 390276
The Judgments of AN Ray CJ MH Beg PN Bhagwati and PN Shinghal JJ were delivered by Bhagwati J VR Krishna Iyer J gave a separate Opinion
BHAGWATI J This is a group of appeals preferred by certain landholders in the State of Maharashtra against the judgment of the Bombay High Court upholding the constitu tional validity of the Maharashtra Agricultural Lands Ceiling of Holdings Act 1961 hereinafter referred to as the Principal Act as amended by the Maharashtra Agricultur al Lands Lowering of Ceiling of Holdings Amendment Act 1972 hereinafter referred to as the Maharashtra Act 21 of 1975 the Maharashtra Agricultural Lands Lowering of Ceiling of Holdings Amendment Act 1975 hereinafter referred to as  Maharashtra Act 47 of 1975  and the Maharashtra Agricultural Lands Ceiling of Holdings Amend ment Act 1975 hereinafter referred 10 as Maharashtra Act 2 of 1976
The Principal Act was enacted 3 206SCI77 796 by the Maharashtra Legislature in implementation of the Directive Principles of State Policy contained in clauses b and c of article 39 of the Constitution
It imposed a maximum ceiling on the holding of agricultural land in the State of Maharashtra and provided for the acquisition of land held in excess of the ceiling and for the distribution of such excess land to landless and other persons
During the subsequent years various amendments were made in the Principal Act from time to time and the Principal Act as amended upto that date was included in the Ninth Schedule by the Constitution Seventeenth Amendment Act 1964
Thereafter certain further amendments were made in the Principal Act and the amending Acts were also included in the Ninth Schedule as a result of the Constitution Thirty ninth Amendment Act 1975
Then came three major amending Acts which according to the appellants introduced the vice of unconstitutionality in the Principal Act
Maharashtra Act 21 of 1975 effected radical amendments in the Principal Act by lowering ceiling on agricultural holding and creating an artificial family unit for fixing ceiling on holding of agricultural land
This amending Act was followed by Maha rashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 which affected certain further changes in the Principal Act but these are not very material for the purpose of the present appeals
Since these three amending Acts were enacted after the Constitution Thirty ninth Amendment Act 1975 they were included in the Ninth Schedule along with certain other enactments by the Constitution Fortieth Amendment Act 1976
The result was that the Principal Act as amend ed by all the subsequent amending Acts including Maharashtra Act 21 of 1975 Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 was protected against invalidation under article 31 B
The appellants are landholders in the State of Maharash tra and since the effect of the provisions of the Principal Act as amended by Maharashtra Act 21 of 1975 Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 was to expro priate a part of the lands belonging to them they pre ferred writ petitions in the High Court of Bombay challeng ing the constitutional validity of the Principal Act as amended by these amending Acts on various grounds
It is not necessary for the purpose of the present appeals to set out the different grounds on which the constitutional chal lenge was based since none of these grounds has been pressed before us save one based on contravention of the second proviso to cl
1 of article 31A the only contention that has been urged before us on behalf of the appellants is that the Principal Act as it stands after its amendment by Maharashtra Act 21 of 1975 Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 is void in so far as it creates an artificial family unit and fixes a ceiling on holding of land by such family unit since it is violative of the second proviso to
clause 1 of article 31A and is not saved by the immunising provision enacted in article 31 B
This contention was also urged before the High Court but it was negatived on the ground that article 3lB afforded complete immunity to the provisions of the Principal Act
We may make it clear at this stage that for the sake of conven ience when we hereafter refer to the Act we mean the Principal Act as amended by Maharashtra Act 21 of 1975 Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976
797 The appellants in the present appeals assail this view taken by the High Court and the only question which therefore arises for consideration is as to
whether the impugned Act in so far as it creates an artificial concept of family unit for fixing ceiling on holding of land by such family unit is in conflict with the second proviso to clause 1 of Article 31A and if it is whether it is protected under Article 31 B  Though logically the first part of the
question as to infraction of the second proviso
to clause 1  of Article 31A should receive our consideration earlier in point of time it would be convenient first to examine the second part of the question for if we are of the view that Article 31 B immunises the Principal Act against attack on the ground of violation of the second proviso to Article 31A it would become unnecessary to consider wheth er in fact there is any infraction of the second proviso to clause 1 of Article 31A
But before we examine the scope and applicability of Article 3lB in the present case it would be desirable to refer to a few relevant provisions of the Principal Act
The Preamble and the long title of the Principal Act show that it was enacted to impose a maximum ceiling on the holding of agricultural land in the State of Maharashtra and to provide for the acquisition of land held in excess of ceiling and for the distribution of such land to landless and other persons with a view to
securing the distribution of agricultural land in a manner which would best subserve the common
good of the people
Section 2 contains various definitions of which only one is material namely that contained in subsection 11A
That sub section defines family unit to mean a family unit as explained in section 4
Section 3 imposes a prohibition on holding of land in excess of ceiling area and so far as material it reads as follows 31  Subject to the provisions of this Chapter and Chapter III no person or family unit shall after the com mencement date hold land in excess of the ceiling area as determined in the manner hereinafter provided
2 All land held by a person or as the case may be a family
unit whether in this State or any other part of India in excess of the ceiling area shall notwithstanding anything contained in any law for the time being in force or usage be deemed tobe surplus land and shall be dealt with in the manner hereinafter provided for surplus land
In determining surplus land from the holding of a per son or as the case may be of a family unit the fact that the person or any member of the family unit has died on or after the commencement date or any date subsequent to the date on which the holding exceeds the ceiling area but before the declaration of surplus land is made in respect of that holding shall be ignored and accordingly the surplus land shall be determined as if that person or as the case may be the member of a family unit had not died
 798 What shall be regarded as land held by a family unit is laid down in section 4 sub section  1  which provides 4 All land held by each member of a family unit whether jointly or separately shall for the purposes of determining the ceiling area of the family unit be deemed to be held by the family unit
Then there is an explanation to this sub section which explains a family unit  to mean a a person and his spouse or more than one spouse and their minor sons and minor unmarried daughters if any or b where any spouse is dead the surviving spouse or spouses and the minor sons and minor unmarried daughters or c where the spouses are dead the minor sons and miner unmarried daughters of such deceased spouses
 Section 5 sub section 1 read with the First Schedule provides for different ceilings for different classes of lands in the various districts and talukas of the State and sub sections 2 and 3 lay down the method of computation of the ceiling area where different classes of lands are held by a person or a family Unit
Then follows section 6 which is in the following terms Where a family unit consists of mem bers which exceed five in number the family unit shall be entitled to hold land exceeding the ceiling area to the extent of one fifth of the ceiling area for each member in excess of five so however that the total holding shall not exceed twice the ceiling area and in such case in relation to the holding of such family unit such area shall be deemed to be the ceiling area
 This is followed by sections 8 to 11A which deal with re strictions on transfers and acquisitions and consequences of contraventions and sections 12 to 21A which provide inter alia for holding an enquiry for determination of land held in excess of the ceiling area and making of a declaration by the Collector stating his decision on the total area of land which is in excess of the ceiling area and the area de scription and full particulars of the land which is delimit ed as surplus land
Sub section 4 of section 21 provides that us soon as may be after the announcement of the decla ration the Collector shall take in the prescribed manner possession of the land which is delimited as surplus and the surplus land shall with effect from the date on which possession is taken be deemed to be acquired by the State Government for the purposes of the Act and shall accordingly vest without further assurance and free from all encum brances in the State Government
Sections 21 to 26 provide for determination and payment of compensation for the sur plus land acquired by the State Government
Then follow provisions in sections 27 to 29 in regard to distribution of surplus land
These provisions require the State 799 Government to distribute the surplus land
in certain order of priority with a view
to carrying out the purposes of the legislation
Sections 30 to 36 lay down the procedure for holding inquiries under the Act and also provide for appeal mechanism
These are followed by certain miscellaneous provisions in sections 37 to 49 which are not material for the purpose of the present appeals
It will be seen from this brief resume of the relevant provisions of the Act that there are two units recognised by the Act for the purpose of fixing ceiling on holding of agricultural land
One is person  which by its definition in section 2 sub section 22 includes a family and fam ily  by virtue of section 2 sub section 11  includes a Hindu Undivided family and in the case of other persons a group or unit the members of which by custom or usage are joint in estates of possession or residence and the other is family unit as defined in the Explanation to section 4 sub section 1
So far as the applicability of the Act to
a person  is concerned there is no conceptual difficulty for any person natural or artificial can hold land and if the land held by such person is in excess of the ceiling laid down in section 5 sub section 1  read with the First Schedule the surplus land would vest in the State Govern ment
But the Act has created an artificial family unit  and a person and his spouse and their minor sons and minor unmarried daughters are clubbed together for the purpose of constituting a family unit and all lands held by each member of the family unit whether jointly or separately are aggregated together and by a fiction of law deemed to be held by the family unit
We have described the family unit as contemplated in the Act as an artificial legal conception because in quite a few cases it would be different from the family as known in ordinary parlance the latter would include even major sons and unmarried daughters which the former by its definition does not
It is clear from the scheme of the Act that for the purpose of determining wheth er land is held in excess of the ceiling area a family unit is taken as a unit and the limitation of ceiling area is applied in relation to the land deemed to be held by such family unit and in such a case each individual member of the family unit is not treated as a separate unit for the purpose of applicability of the limitation of ceiling
The land held by each member of the family unit is fictionally treated as land held by the family unit and to the aggregate of such land which is deemed to be held by the family unit the limitation of the ceiling area is applied
This feature of clubbing together the land held by each member of family unit for the purpose of applying the limi tation of ceiling
area it may be noted was introduced by the amendments made by Maharashtra Act 21 of 1976 almost fourteen years after the Principal Act was enacted and it is interesting to notice the reasons why it had to be done
The necessity for wide ranging radical land reforms in order to improve our rural economy was acutely realised when on attaining independence we became free to mould our destinies
With that end in view immediately after independence the legislatures of the country started enact ing laws for bringing about agrarian reform as a part of the process of socio economic reconstruction
The imposition of ceiling on agricultural holdings was found necessary as a part 800 of the scheme of agrarian reform because it was calculated to remove undue balance in society resulting from landless class on the one hand and concentration of land in the hands of a few on the  other
The concept of socio economic justice embodied in the Constitution in fact rendered the imposition of ceiling inevitable as this step was symbolic of new social ideas1 The growth of monopolistic ten dencies in land ownership had to be arrested if the optimum area was to be made available to the largest number of people
The Panel on Land Reform set up by the Planning Commission in 1955 therefrom unanimously accepted the principle that there should be an absolute limit to the amount of land which any individual might hold and observed that the policy of imposition of ceiling should be able to
make contribution towards achieving the following objec tives 1 meeting the widespread desire to possess land ii reducing glaring inequalities in ownership and use of land iii reducing inequalities in agricultural income and iv enlarging the sphere of selfemployment
The Second Five Year Plan also pointed out In the conditions of India large dis parities in the distribution of wealth and income are inconsistent with economic progress in any sector
This consideration applies with even greater force land
The area of land available for cultivation is necessarily limited
In the past rights in land were the principal factor which determined both social status and economic opportunity for different groups in the rural population
For building up a progressive rural economy it is essential that dissimilarities in the ownership of land should be greatly reduced
and added that this step would go a long way  to afford opportunities to
land less sections of the rural population to gain in social Status and to feel a sense of opportunity equally with other sections of the community
 It is emphatic that in the conditions which prevail in rural India the possession of some land in itself would be an immunity against abject poverty and would ensure for the owner some minimum resources to fall back upon and his economic and social condition would also improve on account of his owning some land which he can call as his own
The Agricultural Labour Enquiry conducted in the 1960s showed that the average of per capita income of an agricultural labourer with land was much more than the average or per capita income of an agricultural labourer without land
The policy of imposing ceiling on agricultural holdings was therefore initiated in the country with the twin objectives of changing the skewed distribution of agricul tural land ownership in the country and making some land available for distribution among the landless
It was in implementation of this policy that the Principal Act was passed by the Maharashtra Legislature in 1961
The ceiling which was initially fixed was found to be rather high and it had therefore to be lowered by 1 India Progress of Land Reforms 1955 p 19
801 subsequent amendments
But until the enactment of Maharash tra Act 21 of 1976 ceiling was made applicable only to holding of agricultural at lands by individuals
However it was felt that if the ceiling law was to be really effec tive it was necessary to take the family as a unit for the purpose of applying the ceiling
There were two main rea sons which inclined the legislature to this view
One was that in the context of the social and cultural realities of Indian rural life family is the real operative unit in land ownership as in land management and therefore in the fixing of the ceiling the aggregate area held by all the numbers of the family should be taken into account1 and the other was that taking the family as a unit and imposing ceiling on the aggregate land held by all the members of the family acted as a disincentive to effect mala fide transfers in the names of close relations such as wife minor sons and unmarried daughters with a view to bringing the holdings within the ceiling and operated to nullify such transfers where they had been effected with a view to circumventing the ceiling imposed on land holding
Maharashtra Act 21 of 1975 therefore introduced the con cept of family unit and fixed ceiling on holding of agricul tural land by the family unit
The question is whether the Act in so far as it makes this radical provision is pro tected under Article 31 B even if it is found to violate the second proviso to clause 1 of Article 31A
The determination of this question turns on the true interpretation of Article 31 B and its applicability in relation to the second proviso to clause 1 of Article 31A Article 31A clause 1 provides that notwithstand ing anything contained in Article 13 no law falling within any of the categories specified in sub clauses a to e shall be deemed to be void on the ground that it is incon sistent with or takes away
or abridges any of the rights conferred by Article 14 Article 19 or Article 31Then follow two provisions which are in the following terms Provided that where such law is a law made by the Legislature of a State the provisions of this Article shall not apply thereto
unless such law having been reserved for the consideration of the President has received his assent  Provided further than where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his per sonal cultivation it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure stranding thereon or appurtenant thereto unless the law relating to acquiring of such land building or structure provides for payments of compensation at a rate which shall not be less than the market value thereof
 Article 31A together with the first proviso was added in the Constitution by the Constitution First Amendment Act 1951 while the 1 Report of the Committee on Size of Holdings  set up by the Panel on Land Reforms
802 second proviso was introduced by the Constitution Seven teenth Amendment Act 1964
Article 31 B was also intro duced in the Constitution at the same time as Article 31A and it reads as follows 31 B
Without prejudice to
the generality of the provisions contained in article 31A none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such Act Regulation or provision is inconsistent with or takes away of abridges any of the rights conferred by any provisions of this Part and notwithstanding any judg ment decree or order of any court or tribunal to the contrary each of the said Acts and Regulations shall subject to the power of any competent Legislature to repeal or amend it continue in force
 The argument of the appellants was that on a true con struction of the language of Article 31 B a post Constitu tion enactment such as the Act is protected from invalida tion only when it rakes away or abridges any of the rights conferred by any provision of Part III and not when it merely transgresses a restriction on legislative competence imposed by any provision of that part and is therefore inconsistent with any provision
The later ground of vali dation during curing generally any inconsistency with any provision of Part III is available only in case of pre Constitution legislation
What is therefore to be seen in the present case is whether any right is conferred by the second proviso to clause 1 of Article 31A which has been taken away or abridged by the Act for then alone can the Act which is a post Constitution enactment earn the immuni ty given by Article 31 B
The appellants contended that the second proviso to clause 1 of Article
31A does not confer any fundamental right but merely imposes a limitation on the legislative competence of the legislature and therefore Article 31 B does not exonerate the Act from its obligation to conform with the requirement of the second proviso to clause 1  of Article 31A
We do not think this contention is well founded
It is plainly erroneous
It flies in the face of the express language of Article 31 B and also ig nores the true meaning and effect of the second proviso to clause  1  of Article 31 A Whilst interpreting Article 31 B it is necessary to bear in mind the object and purpose of the enactment of that Article by the Constitution First Amendment Act 1951
This article was introduced in the Constitution within almost eighteen months of the commencement of the Constitu tion because it was found that agrarian reform legislation was running into rough weather and the policy of agrarian reform was being frustrated
Without a dynamic programme of agrarian reform it was not possible to change the face of rural India and to upgrade the standard of living of the large masses of people living in the villages
In fact the promise of agrarian reform is implicit in the Preamble and the Directive Principles of State Policy and it is one of the economic foundations of the Constitution
It was therefore felt that laws enacted for the purpose of bringing about agrarian reform in its widest sense agrarian reform which would be 803 directed against gross inequalities in land ownership disincentives to production and desparate backwardness of rural life and which would cover not only abolition of intermediary tenures zamindaris and the like but restructur ing of village life itself taking in its broad embrace the entire rural population should be saved from invalidation
It was with this end in view that Article 31 B was intro duced in the Constitution along with Article 31A
The object and purpose of introducing Articles 31A and 31 B was to protect agrarian reform legislation from invalida tion
We shall consider the provisions of Article 31A a little later when we examine the true meaning and effect of the second proviso to clause 1 of that article
But so far as Article 31 B is concerned it is clear on its plain terms that it saves from invalidation an enactment specified in the Ninth Schedule even if it happens to be inconsistent with or takes away or abridges any of the rights conferred by any provisions of Part III
It is immaterial whether such enactment is inconsistent with any provisions of Part III or takes away or abridges any of the rights conferred by any such provisions for both infirmi ties are cured
by Article 31 B
The words such Act Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part in Article 31 B are clearly an echo of the language of clauses 1 and 2 of Article 13 and they have obviously been employed because the enactment specified in the Ninth Schedule may be pre Constitution as well as post Constitution laws
But it would not be right to introduce an artificial dichotomy in Article 31 B by correlating the first part of the expression namely is inconsistent with any  provisions of this Part and confining its applicability to pre Constitution legislation and correlat ing and confining the applicability of the other part of the expression namely takes away or abridges any of the rights conferred by any provisions of this Part to post Constitution legislation
That would be a highly unnatural construction unjustified by the language of Article 31 B
Both the parts of the expression on a plain natural con struction of the language of Article 31 B apply equally to
post Constitution legislation as welt as pre Constitu tion legislation
It must be remembered that the aim and objective of Article 31 B is to make the most comprehensive provision for saving agrarian reform legislation from invalidation on the ground of infraction of any provision in Part 111 and it must therefore
be so interpreted as to have the necessary sweep and coverage
It is an elemen tary rule of construction that a statutory provision must always be interpreted in a manner which would suppress the mischief and advance the remedy and carry out the object and purpose of the legislation
Moreover we must not forget
as pointed out by Mr Justice Holmes that it is the Con stitution that we are expanding
Our Constitution has a social purpose and an economic mission and every article of the Constitution must
therefore
be construed so as to advance the social purpose and fulfil the economic mission it seeks to accomplish
The Court must place an expansive interpretation on the language of Article 31 B so as to carry out the object and purpose of enacting that article
We must in the circumstances hold that Article 31 B is sufficiently wide to protect legislation not only where it takes away or abridges any the fights conferred by any provisions of Part III but also where it 804 is inconsistent with any such provisions
It must follow a fortiori that even if the second proviso to clause 1 of Article 31A is construed as not conferring any fundamental right but merely imposing a restriction on legislative competence the Act in so far as it contravenes or is inconsistent with the second proviso to clause 1 of arti cle 31A would still be saved from invalidation by Article 31 B
But we are clearly of the view that the second proviso to clause1 of Article 31A does confer a fundamental right
This conclusion is inevitable if we look at the conspectus of the provisions contained in Article 31 and 31A
These provisions occur under the heading Right to Property and they define and delimit the right to property guarantied under Part III of the Constitution
Article 31 clause 1 protects property against deprivation by executive action which is not supported by law
It is couched in negative language but as pointed out by SR Das J in State of Bihar vs Kameshwar Singh1   it con fers a fundamental right in so far as it protects private property from State action
The only limitation put upon the State action is the requirement that the authority of law is pre requisite for the exercise of its power to de prive a person of his property
This confers some protec tion on the owner in that he will not be deprived of his property save by authority of law and this protection is the measure of the fundamental right
It is to emphasise this immunity from State action as a fundamental right that  the clause has been worded in negative languageArticle 31 clause 1 thus by giving limited immunity from State action confers a fundamental right
Clause 2 of Article 31 then proceeds to impose limitation on the exercise of legislative power by providing that no property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for acquisition or requisitioning of property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law
This clause is also couched in negative language but it confers a funda mental right of property on an individual by declaring that his property shall not be liable to be compulsorily acquired or requisitioned except for a public purpose and the law which authorises such acquisition or requisitioning must provide for payment of an amount which may be either fixed by such law or which may be determined in accordance with the principles and given in the manner specified in such law
The limitation imposed on the power of the legisla ture to make a law authorising acquisition or requisitioning of property is the measure of the fundamental right con ferred by the clause
It was for this reason pointed out by this Court in RC Copper vs Union of India2 The function of the two clauses clauses 1 and 2 of Article 31 is to impose limitations on the power of the State and to declare the corresponding guarantee of the individual to his right to property
Limitation on the power of the State and the guarantee of right are plainly complementary Emphasis supplied
Article 31A 1 at 988 2   at 569
805 carves out an exception to the applicability of Article 31 and also Articles 14 and 19 and immunises certain categories of agrarian reform legislation from attack on the ground that they violate any of these three articles
Even if any agrarian reform legislation falling within the specified categories infringes Articles 14 19 and 31 it would not be invalid
Having regard to the high objective of bringing about agrarian reform in the country with a view tO improving the life conditions of the common man such agrarian reform legislation is not required to meet the challenge of any of these three articles
But in order to earn this immunity the first proviso requires that such agrarian reform legislation when made by a State must re ceive the assent of the President
That is a condition for the applicability of the exception contained in Article 31 A
Then follows the second proviso which enacts an exception to this exception
It says that even where a law makes any provision for acquisition by the State
of any estate and thus falls within one of the categories specified in Arti cle 31A it would not qualify for immunity under me provi sions of that article if it seeks to acquire any portion of the land held by a person under his personal cultivation which is within the ceiling limit applicable to him under any law for the time being in force and such a law in order to be valid would have to provide for payment of compensa tion at a rate which shall not be less than the market value of the land sought to be acquired
This provision is also couched in negative language like clauses 1 and 2 of Article 31 and it imposes a fetter on the exercise of the legislative power of the State by providing that the State shall not be entitled to make a law authorising acquisition of land held  by a person under his personal cultivation within the ceiling limit applicable to him unless the law provides for payment of compensation at a rate not less than the market value
This limitation on the legislative power of the State is the measure of the fundamental right con ferred on the owner of the land
It is by imposing limita tion on the exercise of legislative power that protection is given to the owner in respect of the land held by him under his personal cultivation within the ceiling limit
Restric tion on legislative competence and conferment of right on the holder of land within the ceiling limit are complemen tary to each other
They are merely two different facets of the same provision
What is limitation of legislative power from the point of view of the State is conferment of right from the point of view of the holder of land within the ceiling limit
The former secures the latter
The second proviso in effect guarantees protection to the holder against acquisition of that portion of his land which is within the ceiling limit except on payment of the market value of such land
It will thus be seen that the second proviso clearly confers a right of property on a person holding land under his personal cultivation
This interpretation was however assailed by the appellants on the ground that it would convert the second proviso
into a substantive provision and that would be contrary to the well recognised canon of construction that a proviso must be read so
as to
carve out from the main provision something which would otherwise fall within it
Now it is true that the proper function of a proviso is to except or qualify some thing enacted in the substantive clause which but for the provision would be within that clause but ultimately as pointed out by this 806 Court in Ishverlal Thakorelal Almaula vs Motibai Naglib hai1  the question is one of interpretation of  the proviso and there is no rule that the proviso must always be restricted to the ambit of the main enactment
Here the intention of the legislature in enacting the second proviso is very clear and that is to ensure payment of full market value as compensation to a person in personal culti vation of his land where a portion of the land within the ceiling limit applicable to him is acquired by the State Government
But for the second proviso even if a law authorising acquisition of land within the ceiling limit did not provide for payment of compensation it would be pro tected from invalidation under Article 31A
That was not a result which the Parliament favoured
Parliament was anx ious to protect the interest of the small holder the common man who holds land within the ceiling limit and therefore enacted the second proviso requiring that a law which permits acquisition of land within the ceiling limit must provide for compensation at a rate not less than the market value
The second proviso in fact restores the right of property with added vigour in case of small holdings of land
it goes much further than Article 31 clause 2 and provides a larger protection in that clause 2 of Article 31
merely requires that a law authorising acquisition should fix an amount to be paid for the acquisition or specify the principles in accordance with which the amount may be determined and the manner in which it may
be given and this may be very much less than the market value while the second proviso insists that at the least full market value must be paid for the acquisition
Thus there can be no doubt that the second proviso confers a right and this right is higher than the one under clause 2 of Article 31 on a person in respect of such portion of land under his personal cultivation as is within the ceiling limit applicable to him and if the Act by creating an artificial concept of a family unit and fixing ceiling on holding of agricultural land by such family unit enables land within the  ceiling limit to be acquired without payment of full market value it would be taking away or abridging the right conferred by the second proviso
In that event too it would be protected by Article 31 B since it is included in the Ninth Schedule
Before we part with this contention based on Article 31 B we must refer to one other argument advanced on behalf of the appellants with a view to repelling the
applicabili ty of Article 31 B
The appellants leaned heavily on the Explanation to
section 3 of the Constitution Seventeenth Amendment Act 1964 and urged that this Explanation shows that an acquisition made in contravention of the second proviso to clause 1 of Article 31A is void and does not have the protection of Article 31 B even if the law under which such acquisition is made is included in the Ninth Schedule
We do not think this contention is well rounded and in fact not much argument is needed to negative it
The Constitution Seventeenth Amendment Act 1964 was enacted by the Parliament with a view to
expanding the scope of Article 31A by enlarging the meaning of the expression 1 1966 1 SCR 367 at 373
807 estate  and while doing so the parliament added the second proviso to clause 1 of Article 31A
The Ninth Schedule was also amended by including certain State enact ments relating to agrarian reform in order to remove any uncertainty or doubt that may arise in regard to their validity
One of the State enactments included in the Ninth Schedule by this amendment was the  Rajasthan Tenancy Act 1955 which was added as Entry 55
Section 3 which amended the Ninth Schedule carried the following Explanation Explanation
Any acquisition made under the Rajasthan Tenancy Act 1955 Rajas than Act 111 of 1955 in contravention of the second proviso to clause 1 of article 31A shall to the extent of the contravention be void
 This Explanation contended the appellants explained the scope and effect of the inclusion of an enactment in the Ninth Schedule vis a vis contravention of the second proviso to clause 1 of Article 31A and indicated the parliamentary intent that such inclusion is not intended to save the enactment from the invalidating consequence of the contravention
It was urged that by taking the illustra tion of the Rajasthan Tenancy Act
 1955 the Explanation sought to explain and clarify that Article 31 B is not intended to be construed as validating contravention of the second proviso to clause 1  of Article 31A
This contention which seeks to treat the Explanation as illus trative in character is clearly fallacious
It is true that the orthodox function of an explanation is to explain the meaning and effect of the main provision to which it is an explanation and to Clear up any doubt or ambiguity in it
But ultimately it is the intention of the legislature which is paramount and mere use of a label cannot control or deflect such intention
It must be remembered that the legislature has different ways of expressing itself and in the last analysis the words used by the legislature alone are the true repository of the intent of the legislature and they must be construed having regard to the context and setting in which they occur
Therefore even though the provision in question has been called an Explanation we must construe it according to its plain language and not on any a priori considerations
The Explanation does no more than provide that so far as the Rajasthan Tenancy Act 1955 is concerned if any acquisition is made under it in contravention of the second proviso to clause 1 of Article 31A it shall to the extent of the contravention be void
Obviously this Explanation was rendered neces sary because otherwise acquisition under the Rajasthan Tenancy Act 1955 even if in contravention of the second proviso to clause 1 of Article 31A would have been valid under Article 31 B and that result the Parliament did not wish to produce
It was manifestly not the intention of the Parliament that acquisition made under any enactment included in the Ninth Schedule should be void where it conflicts with the second proviso to clause 1 of Article 31A and that Article 31 B should not protect it from inval idation
If such had been the intention of the Parliament it would have been expressed in clear and unambiguous terms by providing that an acquisition made under any enactment included in the Ninth Schedule in contraven 808 tion of the second proviso to clause 1 of Article 31A shall to the extent of the contravention be void
Parlia ment would not have resorted to the device of picking out one legislation from the enactments specified in the Ninth Schedule and declared only in relation to that legislation that any acquisition made under it in contravention of the second proviso to clause  1  of Article 31A shall be void
The Explanation in our view far from supporting the con struction contended for on behalf of the appellants mili tates against it
We may also in the passing refer to the view taken by the Allahabad High Court in regard to the true meaning and effect of Article 31 B in relation to the second proviso to clause 1  of Article 31A
The Alla habad High Court took the view in a decision given on 14th November 1975 which is the subject matter of Civil Appeal No 1307 of 1976 in this Court that the second proviso to clause 1 of Article 31A places restriction only on executive action and not on legislative action and since Article 31 B validates merely enactments specified in the Ninth Schedule and not the executive action taken under those enactments the placing of the Act in the Ninth Schedule does not dispense with the requirement that executive action taken by the State in the shape of acqui sition under the Act should conform to
the restriction set out in the second proviso to clause 1 of Article 31A
This view taken by the Allahabad High Court is a little difficult to understand
The protection afforded by the second proviso to clause 1 of Article 31A is undoubtedly against acquisition by the
State but this protection is secured by imposing limitation on exercise of legislative power and it is the law under the authority of which the acquisition is made which has to conform to the requirement of this proviso
If the law authorising acquisition does not conform with this requirement it would be void and the acquisition made under it would be unlawful but for Article 31 B
It is indeed difficult to see how the law authorising acquisition can be valid and yet acquisition mane under it can be void as offending the second proviso to clause 1 of Article 31A
The view taken by the Allahabad High Court is plainly erroneous and must be rejected
We are therefore of the view that even if the Act in so far as it introduces an artificial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit is violative of the second proviso to clause 1 of Article 31A it is protected by Article 31 B by reason of its inclusion in the Ninth Schedule
We may point out that the same view has been taken by this Court in a decision given in regard to the constitutional validity of the Gujarat Agricultural Land Ceiling Act 27 of 1961 in Hasmukhlal Dayabhai vs State of Gujarat1
This view taken by us in regard to the applicability of Article 31 B renders it unnecessary to consider whether in fact the Act is violative of the second proviso to clause 1 of Article 31A
But 1  809 since full and detailed arguments were advanced before us on this question we do not think it would be right if we refrain from expressing our opinion upon it
We fail to see how any violation of the seconded proviso
to clause 1 of Article 31A is at all involved in so far as the Act creates an artificial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit
The inhibition imposed by the second proviso
to clause 1 of Article 31A is against acquisition by the
State of any portion of land held by a person under his personal cultiva tion which is within the ceiling limit applicable to him unless the law relating to such acquisition provides for payment of full market value as compensation
There are two basic conditions which must exist before this inhibition is attracted
One is that land must be
held by a person under his personal cultivation and the other is that there must be a ceiling limit applicable to such person
Where these two conditions are satisfied the State is prohibited from acquiring any portion of the land within the ceiling limit unless the law authorising such acquisition provides for payment of compensation at a rate not less than the market value
Now in the present case the Act has created an artificial concept of a family unit and aggregated the land held by each member of the family unit for the purpose of applying the limitation of ceiling areas
It could not be disputed by the appellants that the State Legislature had legislative competence to do so
The only argument advanced on behalf of the appellants was that this device adopted by the State Legislature of clubbing together the land held by each member of the family unit and supplying the limitation of ceiling area to the aggregation of such land would in many cases have the effect of taking away without payment of full market value as compensation the land held by the wife or minor son minor unmarried daughter even though it is within the ceiling area applicable to the wife or minor son or minor was married daughter and hence the Act in so far as it adopted this device falls foul of the second proviso to clause 1 of Article 31A
But this argument ignores the scheme determination of ceiling area adopted in the Act
There are as already pointed out by us two units recognised by the Act for the purpose of fixing ceil ing on holding of agricultural land
One is person  and the other is family unit 
Where there is a family unit as defined in the Explanation to clauses 1 to section 4 it has to be taken as a unit for the purpose of determining whether land is held in excess of the ceiling area and for this purpose all land held by each member of the family unit whether jointly or separately is required to be aggregated and it is deemed to be held by the family unit
There an individual member of the family unit is not re garded as a unit for the purposes of applying the limitation of ceiling area
The ceiling limit in such a case is ap plicable only to the family unit and not to an individual member of the family unit
It would not therefore be possible to
say in the case of an individual member of the family unit that when any land held by him under his per sonal cultivation is taken over by the State under the Act by reason of the land deemed to be held by the family unit being in excess of the ceiling limit applicable to the family unit the acquisition is of any land within the ceiling limit 810 applicable to him and hence in such a case there would be no question of any violation of the provision enacted in the second proviso to clause 1 of Articles 31A in so far  as the land held by him is concerned
It may be that by reason of the creation of an artificial concept of a family unit and the clubbing together of the land held by each member of the family unit one or more of the members of the family unit may lose the land held by them but that cannot be helped because having regard to the social and economic realities of our rural life and with a view to nullifying transfers affected in favour of close relations for the purpose of avoiding the impact of ceiling legislation a family unit has been taken by the State Legislature as a unit for the applicability of the limitation of ceiling area
It is possible that by reason of this provision some genuine holders of land may suffer some women and minors may lose the land legitimately belonging to them but that is inevitable when major schemes of agrarian reform are adopted for wiping out socio economic injustice
It must be remembered that the legislature can only deal with the generality of cases and it cannot possibly make provision for every kind of exceptional situation
Otherwise the law would be as loaded with qualifications and exceptions that it will cases to be intelligible and become of fertile source of mischief
Moreover it is entirely for the legis lature to decide what policy to adopt for the purpose of restructuring the agrarian system and the Court cannot assume the role of an economic adviser or censor competent to pronounce upon the wisdom of such policy
That would be a matter outside the orbit of judicial review being a blend of policy politics and economics ordinarily beyond the expertise and proper function of the Court
We must accord ingly hold that the Act does not conflict with the second proviso to clause 1 of Article 31A and cannot be held to be bad on that account
The result is that the appeals fail and are dismissed with costs
There is to be only one set of costs
There is also a batch of special leave petitions before us and since they raise only one question namely that relating to the constitutional validity of the Act they too must be reject ed
CA 1307 of 1976
BHAGWATI J
This appeal by the State of Uttar Pradesh is directed against a judgment delivered bY a Division Bench of the High Court of Allahabad answering four questions referred to it for its opinion by a Single Judge of that High Court in Civil Miscellaneous Writ Petition No 9257 of 1975
These four questions arise out of challenge to the constitutional validity of certain provisions of UP Act No 1 of 1971 as amended by UP Act No 18 of 1973 and UP Act No 2 of 1975 hereinafter referred to
as the amended UP Imposition of Ceiling on Land Holdings Act and they are in the following terms 1
Whether the acquisition of land under personal cultivation as surplus after ignoring sale deed under section 56 of the UP Imposition of Ceiling on Land Holdings Act is violative of second Proviso to Article 31 A 1  of the Constitution  811 2
Whether ignoring transfer made after 24th January 1971 other than those excepted under Proviso to section 56 of the both in relation to the determination of ceiling and surplus area would amount to acquiring any portion of land under personal cultivation within the ceiling limit applicable to a person under the ceiling law for the time being in force  3
Whether in spite of the protection afforded by Article 31 B of the Constitution by virtue of inclusion of UP Act 1 of 1971 and the two amending Acts namely UP Act No 18 of 1973 and UP Act No 2 of 1975 in the IX SCHEDULE to the Constitution compli ance would still be necessary of the provi sions of second proviso to Article 31 A1 of the Constitution  4
Whether in spite of protection having been given under Article 31 C of the Consti tution to UP Act No 18 of 1973 and UP No 2 of 1975 by virtue of a declaration made in section 2 of each of these Acts that these Acts are for giving effect to the policy of the State towards securing the principles specified in clauses b and c of Article 39 of the Constitution is it still necessary to comply with the provisions of the second proviso to Article 31 A 1  of the Constitu tion  The first two questions were answered by the High Court against the State by holding that section 5 sub section 6 of the amended UP Imposition of Ceiling of Land Holdings Act is violative of the second proviso to clause 1  of Article 31A of the Constitution inasmuch as it provides for ignoring all transfers of land made after 24th January 1971 save those excepted under the proviso to that sub section and thereby authorises acquisition of land held by a person under personal cultivation within the ceiling limit applicable to him
The High Court also an swered the third question against the State on the view that article 31 B does not dispense with the requirement that an acquisition made by the State even if it be under an enactment specified in the Ninth Schedule should conform with the second proviso to clause 1 of Article 31A and if the acquisition is violative of that proviso it would be void notwithstanding that the enactment under which it is made is included in the Ninth Schedule
The fourth question was also answered in the same way by holding that the protection given under Article 31C of the Constitution does not extend to violation of the second proviso to clause 1 of Article 31A
The answer given by the High Court to the fourth question is not challenged in the present appeal but the correctness of the answers given to the first three questions is seriously assailed before us by the State
We will first deal with the third question since it is obvious that if the answer to that question is in favour of the State and it is 4 206SCI77 812 held that Act
31 B protects an enactment included in the Ninth Schedule even from attack on the ground of violation of the second proviso to clause 1 of article 31A it would become unnecessary to consider the first two questions which raise the issue whether section 5 subsection 6 of the amended UP Imposition of Ceiling on Land Holdings Act is violative of that proviso for even if it is it would be protected by article 31 B in view of the fact that UP Act No 1 of 1971 as also
the two subsequent amending Acts namely UP Act No 18 of 1973 and UP Act No 2 of 1975 are included in the Ninth Schedule to the Constitution
Now so far as the third question is concerned we have already held in a judgment delivered today in Civil Appeals 1132 1164 of 1976 arising under the Maharashtra Agricultural Lands Ceiling of Holdings Act 1961 that article 31 B affords complete immunity to an enactment included in the Ninth Schedule against violation of the second proviso to clause 1 of article 31A and such an enactment is protected from invalidation on that ground
Having regard to this decision the answer to the third question must be given in favour of the State and it must be held that section 5 sub section 6 of the amended UP Imposition of Ceiling on Land Holdings Act even if it contravenes the second proviso to clause 1 of Article 31A a matter on which we do not wish to express any opinion since it is unnecessary to do so in validated
under Article 31 B We accordingly allow the appeal set aside the order of the High Court in so far as it answers the first three questions against the State and hold that section 5 sub section 6 of the UP Imposition of Ceiling on Land Hold ings Act iS valid and its constitutionality cannot be assailed by reason of the immunity enacted in Article 31 B The respondent will pay the costs of the appeal to the State
1040 of 1975 etc
BHAGWATI
These appeals by the State of Punjab are directed against a judgment of the High Court of Punjab and Haryana declaring certain provisions of the Punjab Land Reforms Act 1972 unconstitutional on the ground that they violate the second proviso to clause 1  of Article 31A of the Constitution
The constitutional validi ty of the whole Act was challenged in the writ petitions giving rise to these two appeals but the High Court nega tived the challenge and upheld the constitutional validity of the Act save in regard to those provisions which create an artificial concept of a family and provide for clubbing together of land held by each member of the family for the purpose of applying the limitation of permissible area
We will briefly refer to these provisions which have been struck down by the High Court as constitutionally in valid
Section 3 is the definition section and clause 10 of that section define person  to include inter alia a family
The expression family  is defined in clause 4 of section 3 by saying that family  in relation to a person means the person the wife or husband as the case may be of such person and his or her minor children other than a married minor daughter
It is obviously an artifi cial definition of family because family as known in ordi nary parlance would include not only minor children but also major sons and unmarried daughters whereas 813 Family  as defined here excludes major sons and unmarried daughters
Section 4 sub section 1 provides that subject to the provisions of section 5 no person shall own or hold land as landowner or tenant or partly as land owner and partly as tenant in excess of the permissible area and sub section 2 of that section lays down what shall be the permissible area in respect of different classes of land
There is proviso
ii to sub section 2 of section 4 which says that where the number of members of a family exceeds five the permissible area shah be increased by one fifth of the permissible area for each member in excess of five subject to the condition that additional land shall be allowed for not more than three such members
Sub sec tion 4 of Sec 4 has two clauses which reads as fol lows a Where a person is a member of a registered cooperative farming society his share in the land held by such society togeth er with his other land if any or if such person is a member of a family together with the land held by every member of the family shall be taken into account for determining the permissible area b where a person is a member of a fami ly the land held by such person together with the land held by every other member of the family whether individually or jointly shall be taken into account for determining the permissible area
 It will thus be seen that under the provisions of the Act the land held by each member of a family as defined in section 3 clause 4 whether individually or jointly is required to be pooled together and taken into account for determining the applicability of the permissible area
The argument of the respondents which found favour with the High Court was that these provisions are violative of the second proviso to clause 1 of Article 31A inasmuch as they permit acquisition of land held by a member of a family under his personal cultivation though it might be within the permissible area for an individual without payment of full market value as compensation and
hence they are constitutionally invalid
This view taken by the High Court is assailed
in the present appeals before this Court
Now it may be pointed out straightaway that when the High Court delivered its judgment on 14th February 1974 the Punjab Land Reforms Act 1972 was not included in the Ninth Schedule and hence it was not possible for the State to invoke the protection of Article 31 B
But subsequently the Act has been included in the Ninth Schedule as Entry 78 by the Constitution Thirty fourth Amendment Act 1974 and hence it is now entitled to the immunity conferred by Article 31 B We had occasion to consider a similar ques tion arising under the Maharashtra Agricultural Lands  Ceiling of Holdings Act 1961 where also an artificial concept of a family unit is created and lands held by each member of the family unit are aggregated together for the purpose of applying the limitation of 814 ceiling area
The relevant provisions of the Maharashtra Agricultural Lands Ceiling of Holdings Act 1961 are in fact almost identical with the impugned provisions of the Punjab Land Reforms Act 1972 While dealing with the constitutional validity of the Maharashtra Agricultural Lands Ceiling of Holdings Act 1961 in Civil Appeals Nos 1132 1164 of 1976 we have pointed out in a judgment delivered today that these provisions introducing the con cept of a family unit and clubbing together lands held by each member of the family unit and applying the limitation of ceiling area in reference to the aggregation of such lands are not violative of the second proviso to clause 1 of Article 31A and even if they were they are protected by Article 31 B
The reasoning which has prevailed with us for sustaining the validity of the provisions of the Maharash tra Agricultural Lands Ceiling of Holdings Act 1961 must apply equally in the present cases arising under the Punjab Land Reforms Act 1972 and we must hold that the impugned provisions of the Punjab Land Reforms Act 1972 are not in conflict with the second proviso to clause 1 of Article 31A and in any event they are protected from inval idation under Article 31 B We may point out that the same view has been taken by this Court in regard to the constitutional validity of the relevant provisions of the Gujarat Agricultural Land Ceil ing Act 27 of 1961 in Hansmukhlal vs State of Gujarat1 The relevant provisions of the Punjab Land Reforms Act 1972 are almost the same as those of the Gujarat Agricultural Land Ceiling Act 27 of 1961 which were upheld as constitu tionally valid in Hansmukhlal s case supra
We accordingly negative the challenge to the constitu tional validity of the Punjab Land Reforms Act 1972 and hold that it does not suffer from any of the constitutional infirmities alleged in the writ petitions
The appeals are accordingly allowed with costs in favour of the appel lant
There will be only one set of costs
KRISHNA IYER J Legal challenges to the constitution ality of agrarian transformation through legislation die hard in our divided society as is evidenced by this ava lanche of appeals by special leave from the High Courts of Maharashtra Punjab and Allahabad
The naive expectation that new incarnations in court of dead confrontations be tween land legislation and the Constitution may be finally laid to rest by a larger than legal discussion has pressured me into writing a separate opinion where concurrence with my learned brethren should have spared this seemingly otiose exercise
Although the majuscule argumentation which has marked the formidable forensics of this litigation at the High Court level has ranged over large issues Shri Tarkunde who led the main arguments for one side has discriminating ly dwindled down his submissions before us to two minuscule issues which nevertheless arm of lethal moment if accept ed
The recurrence of attacks on the vires of land reform laws evenafter being impregnably barricaded by the Ninth 1  815 Schedule constrains me to set out at some length the broad perspective which courts must possess in such confrontation situations
Our Constitution is tryst with destiny pream bled with Inscent solemnity in the words Justice social economic and political 
The three great branches of Gov ernment as creatures of the Constitution must remember this promise in their functional role and forget it at their peril for to do so will be a betrayal of those high values and goals which this nation set for itself in its objectives Resolution and whose elaborate summation is in Part IV of the paramount parchment
The history of our country s struggle for independence was the story of a battle between the forces of socio economic exploitation and the masses of deprived people of varying degrees and the Constitution sets the new sights of the nation
To miss the burning economics and imperative politics of the Fundamental Law and to focus fatuously on legal logomachy and pettifogging casuistry is to play truant with its messiahnism and to defeat the sweep of its humanism
Once we grasp the dharma of the Constitution the new orientation for the karma of adjudica tion becomes clear
Our rounding fathers aware of our social realities and the inner workings of history and human relations forged our fighting faith integrating justice in its social economic and political aspects
While contem plating the meaning of the Articles of the Organic law the Supreme Court shall not disown Social Justice
We must realise the vital role in Indian economic inde pendence that the land question plays before approaching the constitutional issues urged before us
The caste system and religious bigotry seek sanctuary in the land system
Social status syndrome resisting the egalitarian recipe of the Constitution is the result of the hierarchi cal agrarian organisation
The harijan serfdom or dalit proletarianism can never be dissolved without a radical redistribution of land ownership
Development strategies income diffusion programmes and employment opportunities why even the full realisation of the social and economic potential of the green revolution  demand agrarian reform
Michael Cepede Professor and Independent Chairman of the FAO Council after studying the link between the green revolution and land reforms has concluded   land reform far from being incompatible with the Green Revolution is essential to its successful continuation
In any case unless the new techniques are quickly made available to peasant farmers the social situation will before
long become explosive
If land workers are thwarted in their expectation of jobs under the Green Revolution they will have no alternative but to migrate to a hopeless existence in the suburban shanty towns
As an Indian friend once said to me unless the peasant is allowed to participate fairly soon in the Green Revolution it will quickly change colour
If it is to remain green 816 workers on the land must no longer be exploit ed as they are now there must be a structural reform which means first and foremost land reform The Green Revolution and Employment by Michael CEPEDE International Labour Review Vol
105 1972 P 1 The intimate bond between poverty and hierarchy in agrarian societies the impact of the social framework of agriculture on the castesystem the inhibition of feudal tenures on the productive energies of the peasantry are subjects which have been studied by cultural anthropologists sociologists and economists and in consequence the Constitution has included agrarian reform as a crucial component of the New Order
In a recent publication by the Institute of Economic Growth the inter connection between land reform class structure and the powerelite has been high lighted The significance of land reform is obvious if one keeps in view the predominantly agrarian character of most Asian Countries
The majority of populations in the Asian region live in villages where land constitutes not only the main source of livelihood but also the basis of social stratification power structure family organisation and belief systems
Land reform which is intended to promote changes in inland relations is bound to exercise a far reaching influence not only on the pattern of agricultural trans formation but of rural transformation as a whole
It should be borne in mind that changes in land relations are not only propellers of socio economic change they are also recipro cally influenced by changes in the economic technological social political and ideologi cal spheres
Analysis of the impact of land reforms therefore has to be attempted with an awareness of development in the total social situation
Further countries in Asia exihibit many points of similarity as well as of divergence in respect of land reform pro grammes and their impact on socio economic changes Studies in Asian Social Development McGraw Hill Publishing Co Ltd p 5
Small wonder that the framers of the Constitution were stirred by the proposition that freedom in village India become s free  only when the agrarian community comes into its own and this necessitates radically re drawing the rural real estate map
A sensitied awareness of this background is essential while assessing the legal merit of the submis sions made by Shri Tarkunde which has fatal potential vis a vis the three impugned legislations in question
We are directly concerned in considering the crowd of appeals from the three High Courts with articles 31A1 and 31 B which  In its present shape it was recast by the Constitution Fourth Amendment Act
817 came into the Constitution shortly after and as the very First Amendment to the Constitution
The relevance of land reforms and their forensic inviolability was then stressed in Parliament by the Prime Minister who moved the Bill in this behalf
He explained the quintessential aspect of the problem
I quote it here because the voice of Parliament belights when played back the words of the Articles to better appreciate their import and amplitude Shri Jawaharlal Nehru 
When I think of this Article
article 31 the whole gamut of pictures comes up before my mind because this article deals with the abolition of the za mindari system with land laws and agrarian reform  
Now  a survey of the world today a survey of Asia today will lead any intelligent person to see that the basic and the primary problem is the land problem today in Asia as in India
And every day of delay adds to the difficulties and dangers apart from being an injustice in itself 
I am not going into the justice or injustice of but am looking at it purely from the point of view of stability
Of course it you go into the justice or injustice you have to take a longer view not the justice of today but the justice of yesterday also
We do not want anyone to suffer
But inevitably in big social changes some people have to suffer
We have to think in term s of large schemes of social engineering not petty reforms but of big schemes
like that  
Even in the last three years or so some very important measures passed by State Assemblies and the rest have been held up
No doubt as I said the interpretation of the Court must be accepted as right but you I and the country has to wait with social and economic condi tions sOcial and economic upheavals and we are responsible for them
How are we to meet them  How are we to meet this challenge of the times  Therefore we have to think in terms of these big changes land changes and the like and therefore we thought it best to propose additional articles 31A and 3lB and  in addition to that there is a Schedule at tached of a number of Acts passed by State Legislatures same of which have been chal lenged or might be challenged and we thought it best to save them from long delays and these difficulties so that this process of change which has been initiated by the States should go ahead Constitution First Amendment Bill Debates d16 5 51
We now know the high seriousness and wide sweep of the constitutional provisions falling for construction
The purpose of article 3lB is conferment of total immunity from challenge on the score of violation of Part III
The words used are as comprehensive as English 818 language permits
And there is no justification
to narrow down the pervasive operation of the protection once we agree that the legislation relates to agrarian reforms
I have right at the outset hammered home the strategic significance of land reforms in the planned development of our resources the restoration of the dignity and equality of the individual and the consolidation of our economic freedom
No land reforms no social justice
And so the framers of the Constitution finding the fearful prospect of agrarian re structuring being threatened by fundamental rights  archery decided to armour such reform programmes with the sheath of invulnerability viz the Ninth Schedule plus article 3lB Once included in this Schedule no land reform law shah be arrowed down by use of Part III
A complete protection was the object of the 1st Amendment and to blunt the edge of this purpose by interpretative tinker ing with legalistic skills is to cave in or assist unwit tingly the slowing down of the process which is the key to social transformation
The listening posts of the constitu tional court are located not in little grammar nor in lexicography nor even in pedantic reading of Provisos and Explanations based on vintage rules but in the profound forces which have led to the provision and in the compre hensive concern expressed in the wide language used
While any argument in Court has to be decided on a study of the meaning of the words of the statute vis a vis the constitu tional provisions the very great stakes of the country in agrarian legislation which we have been at pains to emphasize enjoin upon the Judges the need to bestow the closest circumspection in evaluating invalidatory conten tions
Every presumption in favour of validity seman tics permitting every interpretation upholding vires possibility existing must meet with the approval of the Court
Of course if any of the provisions of the Act tested by the relevant constitutional clause admits of no reconciliation the Act must fail though since the Court has its functional limitation in rescuing a legislature out of its linguistic folly
I may here briefly set out the circumstances which account for these appeals
Maybe I may also state pithily the nature of the attempted constitutional invasion on the legislative provisions
The appellants have arrived in three batches
The first set of appeals is by landlords from Maharashtra whose challenge of the Maharashtra Agricul tural Lands Ceiling on Holdings Act 1961 Act No 27 of 1961  as amended especially sections 4 and 5 proved ineffec tual in the High Court and they seek better fortune by urging some of the same arguments more sharply in this Court
The next bunch of appeals is by the State of Punjab which complains about the High Court s conclusion of unconstitutionality of section 51 of the Punjab Land Reforms Act 1972
The third group is by the State of UP some of the provision s of whose land
reform law have been declared ultra vires by the High Court and the aggrieved State contests that ratiocination as horrendously wrong
For easy reference hereafter I will abbreviate the three statutes as the Maharashtra Act the Punjab Act and the UP Act
The provisions under attack are substantially 819 similar in nature and the arguments before us likewise have been more or less identical
One common feature of all the three enactments is that they are all included in the Ninth Schedule to the Constitution although it must be stated that the Punjab Act at the time the High Court decided the case had not been so included
Since the three Acts enjoy the immunity ensured by article 31 B the examina tion by this Court of the questions mooted has to be on that footing
That Chinese Wall of protection still leaves vulnerable chinks according to Shri Tarkunde and his major offensive is based on the second proviso to article 31 A1
He derives from the proviso thereto a legislative incompe tency if some mandated conditions implied therein are not fulfilled and the failure to comply with this requirement by all three Acts spells their invalidity
The broad spectrum attack in the High Courts based on many grounds having been given up we may focus first on the relevant portions of articles 31 A and 31 B and the Ninth schedule before coming to the specific sections of the Acts which allegedly violate with fatal impact the constitu tional prescriptions or prohibitions
Shri Tarkunde himself followed this line in his argument
Speaking generally the gravamen of the charge in all the three instances is in creating an ersatz person  or artificial family for the purposes of the Acts contrary to the implicit requirement of the 2nd proviso to article 31A1 and in presenting a curious ceiling limit for such a fami ly  regarding lands in personal cultivation
We will con sider this principal argument closely
Article 31 B reads thus 31 B Validation of certain Acts and Regula tions Without prejudice tO the generality of the provisions contained in Article 31 A none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void on the ground that such Act Regulation or provision is inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part and notwithstanding any judgment decree or order of any court or tribunal to the con trary each of the said Acts and Regulations shall subject to the power of any competent Legislature to repeal or amend it continue in force
 Its obvious object is to save land reform laws from being shot down by the constitutional missiles of Part III
Conceding this counsel argues that what is repulsed is attack based on rights under Part III but other infirmities are not cured by article 3lB
One such infirmity legislative incompetency is the foundation of hiss argument
Before critically appraising a contention one must sympathise with the submission
So we may read article 31A1 to the extent relevant 820 31A Saving of laws providing for acquisition of estates etc  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 extin guishment 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 c the amalgamation of two or more corpo rations either in the public interest or in order to secure the proper management of any of the corporation or d the extinguishment or modification of any rights of managing agents secretaries and treasurers managing directors directors or managers of corporations or of any voting fights of shareholders thereof or e the extinguishment or modifications of any rights accruing by virtue of any agree ment lease or licence for the purpose of searching for or winning any mineral or mineral oil or the premature termination or cancellation of any such agreement lease or licence shall be deemed to be void on the ground that it is inconsistent with or taken away or abridges any of the rights conferred by Arti cle 14 Article 19 or Article 31 Provided that where such law is a law made by the Legislature of a State the provisions of this article shall not apply thereto unless such law having been reserved for the consideration of the President has received his assent Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto unless the law relating to the acquisition of such land building or structure provides for payment of compensation at a rate which shall not be less than the market value thereof
 All the Acts relate to the acquisition by the State of estates in the sense that surplus lands above the ceiling limit are taken away 821 by the State
While this is permissible notwithstanding any violation of articles 14 19 and 31 the second proviso to article 31A1 by a negative prescription imposes legislative incompetence in certain circumstances
Shri Tarkunde reads the proviso in a manner not so easy to follow
Even so to understand the argument one has to follow counsel s chain of reasoning
Firstly he persuades us that where any land is held by a person in hi s actual cultivation the State cannot acquire any portion of such land as
is within the ceiling limit applicable to him under any law unless the law relating to the acquisition of such land provides for pay ment of compensation at a rate not less than the market value thereof
He is right
In none of these Acts is compensation on that scale payable
The next question is whether the acquisition of land is below the ceiling limit
To make good this part of his argument he calls in aid article 367
That Article im ports the application of the  for the interpretation of the words used in the Constitu tion and so the expression person  used in article 31A Second Proviso must bear the meaning assigned to it by section 212 of the 
Counsel states that the Acts in question define family  and family unit  in a bizarre manner by providing for ceiling limit for family unit  incongruously with the natural concept of family but fabricated in the foundry of the statutes the laws have violated the ceiling for the individuals comprising the family
By reading sections 41 and 5 of the Maharashtra Act and section 41 and section 5 read with r 54 of the Punjab Act counsel tried to make good his contention that there was a flagrant departure from the concept of person  as defined in section 212 of the 
By doing this the legislature treated one person s separate land as land of the family unit and deprived the wife and minor child of the right to hold lands within the ceiling limit
By this recondite reasoning Shri Tarkunde urged that the legislature had transgressed the limits of their competency which rendered the legislations void not because any funda mental right in had been flouted but because the limitation on legislative competency written into the second proviso to article 31 A had been breached
Counsel fought shy of reading into the 2nd proviso to article 31A1 a fundamental right conferred on persons holding lands below the ceiling limit in personal cultivation
This legalist dexterity became necessary because article 3lB on its plain and plenary terms was a sovereign remedy against all abridgement of or inconsistencies with fundamen tal rights under The sweep of this provision the paramount purpose it was designed to serve and the
ampli tude of its language versus the narrowness of the construc tion put the desperate interpretative crevices created frustrative of its main object and the reliance on the structure of article 13 to understand the anatomy of article 31B this was the gut issue on which most of the debate centred
Equally importantly whether the prescription in the said 2nd proviso was a guaranteed fundamental right expressed in emphatic negative and as an exception to an exception or was it solely a limitation on legislative power without creating a corresponding right in any person this too occupied the centre of the stage
822 The Punjab and Haryana High Court in the judgment under appeal has ventured the view that the provision relating to family  and fixation of land ceiling for such units is not agrarian reform
This extreme dictum discloses the easy possibility of judicial solecism when courts wear legal blinkers while adjudging questions of agronomics national reconstruction arid sociological programmes in the setting of developing countries
Professional innocence of current economics anthropology and sociology in essen tials while rendering constitutional verdicts on develop mental law s is forensic guilt
In State of Kerala  Anr
vs Silk Manufacturing Wvg
 Co Ltd etc1 the considerable amplitude of agrarian reform in developing countries has been explained
If India lives in her villages if a huge majority of its people live or starve on agriculture and under agrestic sub culture every thing that promotes rural regeneration and the welfare of the agricultural community is agrarian reform
This being the conceptual sweep of the expression all reasonable strategies for the limitation of holdings and maximization of surplus lands for distribution to the land less and designing a hopeful rural future obviously fall within the expanding projects of agrarian reform
To argue more is to labour the obvious and to interpret liberally is an obligation to the Constitution
Assuming that the legislations in question are measures of agrarian reform and they are We have to dissect and discover the nature of the objection based on the 2nd provi so to article 31 1 and decide whether the protective wings of article 3lB are wide enough to take in these legislations and repel the imputed infirmity
article 3lB categorically states that  none of the Acts specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void on any conceivable ground rooted in Part III
Even if such Act or provision is inconsistent with any provision of Part 111 it shall not be invalidated
Even if such Act or provision takes away or abridges any of the rights conferred by any provisions of Part III it shah continue in force
In short no matter what the grounds are if they are traceable to Part Iii in whatever form they fail in the presence of article 3lB
No master of English legal diction could have used so tersely such protean words which in their potent totality bang bar and bolt the door against every possible invalidatory sally based on Part III
And Article 31A1 being in Part III Shri Tarkunde s 2nd proviso  bullet cannot hit the target
Nor are we impressed with the cute argument that the phrase ology of article 3lB must be correlated to article 13 and read with a truncated connotation
Legal legerdemain is of no avail where larger constitutional interests are at stake
Shri Tarkunde concedes that if we read the 2nd proviso to article 31A1 as conferring a fundamental right on every person in personal cultivation of land below the ceiling limit
article 3lB is an effective answer to his contention
And so he has striven to make the point that what the said proviso does is not to confer a right but to clamp down a limitation on legislative competence
The proviso 1 1974 1 SCR67
823 according to counsel imposes an embargo
on the legislature against enacting for acquisition of lands below the ceiling limit without providing for payment of compensation at a rate which shall not be less than the market value thereof
The fallacy of this submission lies in its being a half truth confounded for the whole truth
Every fundamental right from the view point of the individual gives a right and from the Standpoint of the State is a restraint
Whether the manner of expression used is in positive terms or negatively whether the statutory technique of a proviso saving clause exception or explanation is used or a direct interdict is imposed the substantive content is what matters
So studied many of the Articles in Part III worded in a variety of ways arm the affected individual with a right and pro tanto prohibit the legislature and the executive from enacting or acting contra
Every right of A is a limitation on B in a universe of law and order
The learned Attorney General expanded on the functional plurality of a proviso and on what is a fundamental right from the individual s angle being a limitation on power from the legislative angle
Cases were cited passages were blue pencilled and text books were relied on
Even self evident propositions wear perplexingly erudite looks when learned precedents and excerpts from classics play upon them
It is Simple enough to say that there may be singular situations where legislative incompetence may exist without a corresponding individual right but in the generality of cases it is otherwise
Jurisprudential possibilities apart in the concrete case before us there is a clearly enunciated fundamental right garbed as an exception to an exception or as a proviso carved cut of a general saving provision
It needs no subtlety to see that under the rubric Right to Property  a skein of rights and limitations on rights has been wound in articles 31 to 31C
Together they are the meas ure of the fundamental right to property in its macro form and micro notes
So understood the scheme is plain
A large right to property protected by law against depriva tion compulsory acquisition only on constitutional condi tions saving of agrarian and some other laws from these constitutional constraints followed by creation through a proviso of an oasis where acquisition can be made only by payment of compensation at or above market value such is the pattern woven by the complex of clauses
A great right is created in favour of owners to get compensation at not less than the market value if lands within the ceiling limit and in personal cultivation are acquired by the State
This is a fundamental right and is a creature of the 2nd provi so to article 31A1
An independent provision may occasion ally incarnate as a humble proviso
I am not therefore inclined to pursue Shri Tarkunde s trail in reading the rulings which set out the proper office of a proviso although it is absolutely plain that in the context setting and purpose of a provision even a proviso may function as an independent clause
Likewise the artificiality imputed to family unit  and family  in the two statutes and the anomalies and injus tices which may possibly flow from them also do not arise for consideration since we have 824 taken the scope of article 3lB to be Wider than contended for
Moreover in any land reform measure where the maximum surplus pool of land for social distribution is the aim drastic interference with the existing rights and room for real individual grievances are inevitable
The new order claims a high price from the old and pragmatic strategies to organise land reforms may involve definitional unortho doxy if the target group is to be reached
Socio economic legislation is social realism in action not bookish perfec tion as social scientists will attest
I hold that the Maharashtra the Punjab and the UP Acts are not unconstitutional taking the constructive view that article 31 B vis a vis agrarian reforms is a larger testament of vision and values in action and a bridge be tween individual right and collective good
The Nagpur Bench has spurred with counsel s many submis sions most of which have been wisely abandoned here and has ultimately upheld the legislation
The Punjab High Court has ventured to hold that the law is bad for reasons repeat ed before us and repelled by us unanimously
The Allahabad judgment has shown noetic naivete and novel legal logic in condemning the provisions to death on grounds which the counsel cared to espouse before us
The reason for this lies in the womb of obvious surmise
While interpretative opportunities are still open for courts in the application of land legislation
the requiem of the unconstitutionality of agrarian reform laws has by now been sung
Nevertheless the crowing event of egalitarian legisla tion is not so much constitutional success as effective emacation
The distance between the statute book and the landless tiller is tantalisingly long and for this implemen tation hiatus the executive not the judicative wing will hold itself socially accountable hereafter
May be it will be spurred with responsible spread trasucending reform rhetoric
I agree that the Maharashtra appeals be dismissed and the other two batches be allowed
SR Maharashtra appeals dismissed UP  Punjab appeals allowed


Summary:
Punjab Land Reforms Act 1972 included in the protec tive umbrella of the Ninth Schedule subsequent to the decision of the High Court declaring certain provisions thereof as unconstitutional article 3lB being retrospective is entitled to the immunity conferred by it
UP Imposition of Ceiling on Land Holdings Act Act No 1 1971 as amended by Act No 18 of 1973 and Act No 2 of 1975 all included in the Ninth Schedule The question whether section 56 is violative of second proviso to clause 1 of article 31A of the Constitution cannot be assailed by reason immunity enacted in article 31B The Maharashtra Agricultural Lands Ceiling of Holdings Act 1961 which was enacted in implementation of the Direc tive Principles of State Policy contained in clauses b and c of article 39 of the Constitution imposed a maximum ceiling on the holding of agricultural land in the State of Maha rashtra and provided for the acquisition of land held in excess of the ceiling and for the distribution of such excess land to landless and other persons with a view to securing the distribution of agricultural land in a manner which would best observe the common good of the people
Maharashtra Amendment Act 21 of 1975 effected radical amend ments in the principal Act by lowering the ceiling on agri cultural holding and created a concept of artificial family unit for fixing ceiling on holdings of agricultural land
The person as defined in s222 rw s211 and his spouse and their minor daughters were clubbed together for the purpose of constituting a family unit as defined in the Explanation to s4 sub section 1 and all lands held by each member of the family unit whether jointly or separately were aggregated together and by a fiction of law deemed to be held by the family unit
The appellant landlords in the State of Maharashtra preferred writ petitions in the High Court of Bombay chal lenging the constitutional validity of the Principal Act as amended on various grounds since the effect of the provi sions of the principal Act as amended by the three Maharash tra Acts viz 21 of 1975 47 of 1975 and 2 of 1976 was to expropriate a part of the lands belonging to concept of family unit and fixed a ceiling on holding of land by such family unit it was violative of the second proviso to clause 1 article 31A and was not saved by the immunising provision enacted in article 3lB
The High Court dismissed them
The main contention was that in so far as the Act created an artificial 791 the petition holding that article 3lB afforded complete immunity to the provisions of the principal Act
In appeal by special leave to this Court the appellant contended 1 On a true construction of article 31B a post constitution enactment such as the Act is protected from invalidation only when it merely transgresses a restriction on legislative competence imposed by any provision of that Part and is therefore inconsistent with such provision
The larger ground of validation curing generally any incon sistency with any provision of Part III is available only in case of pre constitution legislation
ii The second proviso to clause 1 of article 37A does not confer any Funda mental Right but merely imposes a limitationon the legisla tive competence of the legislature and therefore article 3lB does not exonerate the Act from its obligation to conform with the requirements of the second proviso to clause 1 of article 31
iii To interpret the second proviso as conferring a Fundamental Right would convert the second proviso into a substantive provision and that would be contrary to the well recognised canon of construction that a proviso must be read so as to carve out from the main provision something which would otherwise fall with it and iv The Explanation to s3 of the Constitution Seven teenth Amendment Act 1964 shows that an acquisition made in contravention of the second proviso to clause i of Act
31A is void and does not have the protection of article 3lB even if the law under which such acquisition is made is included in the Ninth Schedule
Dismissing the appeals the Court Held Per Bhagwati J for himself and on behalf of Ray CJ Beg and Shinghal JJ 1 The Maharashtra Agricultural Lands Ceiling of Holdings Act 1961 as amended by Maharashtra Acts 21 of 1975 Maha rashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 in so far as it creates an artificial concept of family unit and fixes a ceiling on holding of land by such family unit does not conflict with the second proviso to clause 1 of article 31A 810 E 2 It would not be possible to say in the ease of an individual member of the family unit that when any land held by him under his personal cultivation is taken over by the State under the Act by reason of the land deemed to be held by the family unit being in excess of the ceiling limit applicable to the family unit the acquisition is of any land within the ceiling limit applicable to him and hence in such a ease there would be no question of any violation of the provision enacted in the second proviso to clause 1 of article 31A in so far as the land held by him is concerned
It may be that by reason of the creation of an artificial concept of a family unit one or more members of the family unit may lose the land held by them but that cannot be helped because having regard to the social and economic realities of our rural life and with a view to nullifying transfers effected in favour of close relations for the purpose of avoiding the impact of ceiling legislation a family unit has been taken by the State Legislature as a unit for the applicability of the limitation of ceiling area
809 H 810 A B 3 Even if the Act in so far as it introduces an arti ficial concept of a family unit and fixes ceiling on holding of agricultural land by such family unit is violative of the second proviso to clause 1 of article 31A it is protected by article 31B by reason of its inclusion in the Ninth Schedule
808 F G Hasmukhlal Dayabhai vs State of Gujarat  followed
4 It is an elementary rule of construction that a statutory provision must always be interpreted in a manner which would suppress the mischief and advance the remedy and carry out the object and purpose of the legislation
Our Constitution has a social purpose and an economic mission and every Article of the Constitution must therefore
be construed so as to advance the social purpose and fulfil the economic mission it seeks to accomplish
803 F G 5 The aim and objective of article 3lB is to make the most comprehensive provision for saving agrarian reform legislation from invalidation on the ground of infraction of any provision in Part III and it must therefore be so inter preted as to have the necessary sweep and coverage
An expansive interpretation must be placed on the language of article 31B so to carry out the object and purpose of enacting that Article
803 F H 792 6 Article 3lB is sufficiently wide to protect legisla tion not only where it takes away or abridges any of the rights conferred by any provisions of Part but also where it is inconsistent with any such provisions
803 H 804 A 7 The words such Act Regulation or provision is incon sistent with or takes away or abridges any of the rights conferred by any provision of this Part in article 31B are clearly an echo of the language of clauses 1 and 2 of article 13 and they have obviously been employed because the enactments Specified in the Ninth Schedule may be pre con stitution as well as post constitution laws
But it would not be right to introduce an artificial dichotomy in article 3lB by correlating the first part of the expression namely is inconsistent with  any provisions of this Part and confining its applicability to pre constitution legislation and correlating and confining the applicability of the other Part of the expression namely takes away or abridges any of the rights conferred by any provisions of this Part to post constitution legislation
Both the parts of the expression on a plain natural construction of the language of article 3lB apply equally to post constitution legislation as well as pre constitution legislation
803 D F 8 The Second Proviso to clause 1 of article 31A does confer a Fundamental Right
The second proviso to article 31A confers a right higher than the one under clause 2 of article 31 on a person in respect of such portion of land under his personal cultivation as is within the ceiling limit applica ble to him and if the Act by creating an artificial concept of a family unit and fixing ceiling on holding of agricul tural lands by such family unit enables land within the ceiling limit to be acquired without payment of full market value it would be taking away or abridging the right conferred by the second proviso but it would be protected by article 31 B 804
B 806 E 9 The second proviso to clause 1 of article 31A is also couched in the negative language like clauses 1 and 2 of article 31 and it imposes a fetter on the exercise of the legislative power of the State by providing that the State shall not be entitled to make a law authorising acquisition of land held by a person under his personal cultivation within the ceiling limit applicable to him unless the law provides for payment of compensation at a rate not less than the market value
This limitation on the legislative power of the State is the measure of the fundamental right conferred on the owner of the land
It is by imposing limi tation on the exercise of legislative power that protection is given to the owner in respect of the land held by him under his personal cultivation within the ceiling limit
805 D E State of Bihar vs Kameshwar Singh  986 RC Cooper vs Union of India   569 reiter ated
10 Restriction on legislative competence and conferment of right on the holder of land within the ceiling limit are complementary to each other
They are merely two different facets of the same provision
What is limitation of legislative power from the point of view of the State is conferment of right from the point of view of holder of land within the ceiling limit
The former secures the latter
The second proviso in effect guarantees protection to the holder against acquisition of that portion of the land which is within the ceiling limit except on payment of the market value of such land
The second proviso clearly con fers a right to property on a person holding land under his personal cultivation
805F G 11 The Explanation to section 3 of the Constitution Seventeenth Amendment Act 1964 does no more than provide that so far as the Rajasthan Tenancy Act 1955 is concerned if any acquisition is made under it in contravention of the second proviso to clause 1 of  article 31A it shall to the extent of contravention be void
Obviously this Explanation was rendered necessary because otherwise acquisition under the Rajasthan Act 1955 even if in contravention of thee second proviso to clause 1 of article 31A would have been valid under article 31B and that result the parliament did not wish to produce
It was manifestly not the intention of Parliament that acquisition made under any enactment included in the Ninth Schedule should be void where if conflicts with the second proviso to clause I of article 31A and that article 3lB should not protect it from invalida tion
806 G 807 F H 793 12 It is true that the orthodox function of an expla nation is to explain the meaning and effect of the main provision to which it is an explanation and to clear up any doubt or ambiguity in it but ultimately it is the intention of the legislature which is paramount and mere use of a label cannot control or deflect such intention
807 D E 13 It is true that the proper function of a proviso is to except or qualify something enacted in the substantive clause which but for the proviso would be within that clause
The question is one of interpretation of the proviso and there is no rule that the proviso must always be restricted to the ambit of the main enactment
805 H 806A Ishwarlal Thakarlal Almania vs Motabhai Nagjibhai 1966 1 SCR 367 373 followed
CA 104076
14 The inclusion of the Punjab Land Reforms Act 1972 in the Ninth Schedule as entry 78 by the ConstitutionThirty Fourth Amendment Act 1974 subsequent to the decision of the High Court entitles it to the immuni ty conferred by article 3lB
It does not suffer from any of the constitutional infirmities alleged in the writ petition
814 C E Hasmukhlal vs State of Gujarat   applied
CA 130776
15 Section 5 sub section 6of the UP Impositionof Ceiling on Land Holdings Act is valid and its constitutional validity cannot be assailed by reason of the immunity enact ed in article 3lB Section 56 even if it contravenes second proviso to clause 1 of article 31A is validated under article 3lB by virtue of inclusion under the protective umbrel la of the Ninth Schedule812 C E Per Krishna Iyer J concurring 1 The Maharashtra the Punjab and the UP Acts are not unconstitutional taking the constructive view that article 31 B vis a vis agrarian reforms is a larger testament of vision and values in action and a bridge between individual right and collective good
824 B C 2 The purpose of article 31 B is conferment of total immunity from challenge on the score of violation of Part HI
The words used are as comprehensive as English lan guage permits
No land reform law shall be narrowed down by use of Part III once included in the Ninth Schedule
No matter what the grounds are if they are traceable to Part III in whatever form they fail in the presence of article 3lB
No master of English legal diction could have used so tersely such protean words which in their potent totality bang bar and bolt the door against every possible invalida tory sally based on Part III
It is not correct to argue that the phraseology of article 3lB must be correlated to article 13 and read with a truncated connotation
817 H 822 E F G 3 Every Fundamental Right from the point of view of the individual gives a right and from the stand point of the State is a restraint
Whether the manner of expression used is in positive terms or negatively whether the statu tory technique of a proviso saving clause exception or explanation is used of  1 direct interdict is imposed the substantive content is what matters
Many of the Articles in Part III worded in a variety of ways arm the affected individual with a right and pro tanto prohibit the legisla ture and the executive from enacting or acting contra
823 A B 4 A great right is created in favour of owners to get compensation at not less than the market value if lands within the ceiling limit and in personal cultivation are acquired by the State
This is a fundamental right and is a creature of the 2nd proviso to article 31 A1
An independ ent provision may occasionally incarnate as a humble provi so
823 F G 5 It is absolutely plain that in the context setting and purpose of a provision even a proviso may function as an independent clause
823 G