on No 29 of 1953
Petition under article 32 of the Constitution of India praying that the Court of Wards Ajmer be ordered to forbear from carrying on the superintendence of the istimrari estate and other properties of the petitioner and for restoration of possession and management of the said estate and properties
JB Dadachanji and H C Sogain for the appellant
MC Setalvad A ttorney General for India Bhava Datta Sharma with him for the respondents
May 15
The Judgment of the Court was delivered by MAHAJAN J
This is a petition under article 32 of the Constitution seeking relief against alleged infringement of certain fundamental rights of the petitioner and arises in these circumstances
The petitioner owns an  istimrari estate in the State of Ajmer under an istimrari sanad granted to his ancestor in the year 1875
He enjoys therein a life interest with an obligation to perform certain duties as prescribed by the Ajmer Land and Revenue Regulation 11 of 1877
The Deputy Commissioner of Ajmer who is the Court of Wards constituted under the Ajmer Government Wards Regulation I of 1888 took over possession and assumed superintendence of the said estate on the 18th September 1952 purporting to act under sections 6 and 7 of the Regulation read with section 112 of the Ajmer Tenancy and Land Records Act 1950 XLII of 1950 and hence this petition for a writ of mandamus or one in the nature thereof or for the issue 1051 of a direction to the Court of Wards for restoration of possession of the estate and for an order directing it to forbear from carrying on the superintendence of the estate
The order made by the Court of Wards on the 18th September 1952 is impugned as being void and of no effect whatever because it is alleged that the statutory provisions under which it is purported to have been made contravene the provisions of Part III of the Constitution and take away and abridge the petitioner s rights guaranteed by article 19 1 f of the Constitution
Section 112 of Act XLII of 1950 is one of a group of 7 sections in Chapter X of the Act which deals with the subject of  Compensation and Penalties 
The section prescribes penalties for habitual infringement of rights of tenants and reads thus  If a landlord habitually infringes the rights of a tenant under this Act he shall notwithstanding anything in section 7 of the Ajmer Government Wards Regulation 1888 I of 1888 be deemed to be a landlord who is disqualified to manage his own property  within the meaning of section 6 of the said Regulation and his property shall be liable to be taken under the superintendence of the Court of Wards 
The preceding section 110 is in these terms If a landholder or his agent collects from a tenant any lag or neg he shall be deemed to have committed an offence of extortion within the meaning of the Indian Penal Code Act XLV of 186O Just as section II 0 declares an illegal exaction by a landlord to be an offence under the Indian Penal Code in like manner section 112 declares a landlord who habitually infringes the rights of a tenant  a person disqualified to manage his own property  within the meaning of section 6 of Regulation I of 1888 the consequence being that his property becomes liable to be taken over by the Court of Wards
The section is an ingenious and novel device to punish landlords who habitually infringe the rights of tenants
It authorizes 1052 the use for punitive purposes of the machinery of Regulation I of 1888 enacted to make better provision for the superintendence of Government Wards in AjmerMerwara
By force of the declaration in section 112 of the Act landlords who habitually infringe the rights of the tenants fall within the category of persons incapable of managing their own property and come within the ambit of section 6 of the Regulation which is in these terms  The Court of Wards may with the previous sanction of the Chief Commissioner assume the superintendence of the property of any landholder who is disqualified to manage his own property 
The result therefore of the combined operation of sec tion 112 of Act XLII of 1950 and of the provisions of Regulation I of 1888 is that the Court of Wards can in its own discretion and on its subjective determination assume the superintendence of the property of a landlord who habitually infringes the rights of his tenants
The condition precedent to such assumption of superintendence is the previous sanction of the Chief Commissioner the giving of which is also a matter entirely resting on his discretion
Section 27 of Regulation I of 1888 provides that  the exercise of any discretion conferred on the Court of Wards or the Chief Commissioner by this Regulation shall not be called in question in any civil court 
It was conceded by the learned Attorney General appearing for the State of Ajmere that there was nothing in the contents of either Act XLII of 1950 or Regulation I of 1888 which provided a machinery for determining the question whether a certain landlord was a person who was habitually infringing the rights of his tenants
Under Regulation I of 1888 the assumption by the Court of Wards of the superintendence of the property of a disqualified proprietor depends merely on the subjective determination of the Deputy Commissioner or the Commissioner or of the Chief Commissioner and the exercise of this discretion cannot be questioned in any manner in a civil court
Act XLII of 1950 says nothing whatsoever on this subject
1053 The contention that the provisions of section 112 of Act XLII of 1950 read with the provisions of Regulation I of 1888 infringe the fundamental right of the petitioner guaranteed by article 19 1 f of the Constitution is in our opinion well founded and does not require any elaborate discussion
The petitioner s right to hold the istimrari estate and his power of disposal over it stand abridged by the act of the Court of Wards authorized by these provisions
His right to manage the estate and enjoy possession thereof stands suspended indefinitely and until the time that the Court of Wards chooses to withdraw its superintendence of the property of the petitioner
During this period he can only receive such sums of money for his expenses as the Court of Wards decides in its discretion to allow
Thus the provisions of section 112 of Act XLII of 1950 clearly abridge the fundamental right of the petitioner under article 19 1 f and are to that extent void
The learned Attorney General canvassed for the validity of the provisions of section 112 on three grounds
He contended that the determination of the question whether a certain landholder was a person who habitually infringed the rights of his tenants did not depend on the opinion of the Court of Wards but was a matter that could be agitated and canvassed in a civil court
It was said that there were no words in the section from which it could be inferred that the determination of this fact depended on the subjective determination of the Court of Wards
It was emphasized that the section had not used the familiar language in its opinion or words like that which are usually employed to indicate whether a matter depends on the subjective determination of an authority or whether it can be agitated in a civil court
This contention in our opinion is not well founded
As already pointed out Act XLII of 1950 has prescribed no machinery for the determination of the question whether a landlord is guilty of habitually infringing the rights of his tenants and rightly so because section II 2 of the Act is merely of a declaratory character and 1054 declares such a landlord as being under a disability and suffering from an infirmity
This declaration becomes operative and effective only when the Court of Wards in its discretion decides to assume superintendence of the property of such a proprietor
In other words when the Deputy Commissioner or the Commissioner or the Chief Commissioner is of the opinion that such a proprietor should be deprived of possession of his property this determination then operates to the prejudice of the landlord but he cannot challenge the exercise of the discretion by these officers in view of the provisions of section 27 of Regulation I of 1888
The result then is that by the subjective determination of the Court of Wards both the questions whether a particular person habitually infringes the rights of his tenants and whether his property should be taken over by the Court of Wards stand settled and the landlord cannot have recourse to a civil court on these questions
The learned Attorney General was not able to draw our attention to any provision in the Court of Wards Act or in Act XLII of 1950 which enabled the landlord held to be a habitual infringer of the rights of his tenants to have recourse to a civil court to test the correctness of the determination made by the Court of Wards
The provisions of Regulation of 1888 clearly indicate the contrary
Next it was argued that the provisions of section 112 amount to reasonable restrictions on the exercise of the right conferred by article 19 1 f of the Constitution on a citizen and these restrictions are in the interests of the general public
In our judgment this
argument also is not sound
As indicated above the provisions of section 112 of Act XLII of 1950 are penal in nature and are intended by way of punishment of a landlord who habitually infringes the rights of his tenants
He is punished by being placed at the mercy of the Court of Wards and by being made subject to the stringent provisions of Regulation I of 1888
An enactment which prescribes a punishment or penalty for bad behaviour or for misconduct of a landlord cannot possibly be regarded as restriction on a fundamental 1055 right
Indeed a punishment is not a restriction
This was frankly conceded by the learned Attorney General
It is still more difficult to regard such a provision as a reasonable restriction on the fundamental right
When a law deprives a person of possession of his property for an indefinite period of time merely on the subjective determination of an executive officer such a law can on no construction of the word reasonable be described as coming within that expression because it completely negatives the fundamental right by making its enjoyment depend on the mere pleasure and discretion of the executive the citizen affected having no right to have recourse for establishing the contrary in a civil court
Section 112 of Act XLII of 1950 cannot therefore be held valid as coming within the scope of article 19 5 of the Constitution
Lastly it was contended by the learned AttorneyGeneral that section 112 was valid by reason of the curative provisions of article 31 A of the Constitution
That article validates laws which would otherwise contravene the fundamental right in article 312 of the Constitution but its operation is restricted to laws providing for acquisition of estates etc
It runs as follows  Notwithstanding anything in the foregoing provi sions of this Part no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part 
Section II 2 of Act XLII of 1950 intended to regulate the rights of landlords and tenants is obviously not a law providing for  the acquisition by the State  of the estates of the landlords or of any rights in those estates
It is also not a law providing for the extinguishment or modification of any such rights
The learned Attorney General laid emphasis on the word modification  used in article 31 A That word in 1056 the context of the article only means a modification of the proprietary right of a citizen like an extinguishment of that right and can not include within its ambit a mere suspension of the right of management of estate for a time definite or indefinite
Historically speaking article 31 A which has relation to article 312 of the Constitution has no relevancy whatsoever to the law enacted in section 112 of the Act XLII of 1950
For the reasons given above we are of the opinion that the law enacted in section 112 of Act XLII of 1950 is not saved either by clause 5 of article 19 or by article 31 A of the Constitution
It manifestly infringes the fundamental right of the petitioner guaranteed by article 19 1 f of the Constitution
That being so the petitioner is entitled to a direction that possession of his estate be restored to him
We accordingly direct the Court of Wards Ajmer Merwara constituted under the Ajmer Government Wards Regulation I of 1888 to forbear from carrying on superin tendence of the petitioner s istimrari estate and the other properties taken possession of and to restore their possession to the petitioner
The petitioner will have the costs of this petition
Petition allowed
Agent for the petitioner  I N Shroff


Summary:
Section 112 of the Ajmer Tenancy and Land Records Act XLII of 1950 provided that if a landlord habitually infringes the rights of a tenant under this Act he shall notwithstanding any thing in section 7 of the Ajmer Government Wards Regulation 1888 I of 1888 be deemed to be a landlord who is disqualified to manage his own property  within the meaning of section 6 of the said Regulation and his property shall be liable to be taken under the superintendence of the Court of Wards
 Section 6 of Regulation I of 1888 provided that the Court of Wards may with the previous sanction of the Chief Commissioner assume the superintendence of the property of any landholder who is disqualified to manage his property
The petitioner whose estate was taken over by the Court of Wards under the above mentioned provisions of law applied for relief under article 32 of the Constitution for restoration of his estate and other appropriate reliefs Held 1 that the result of the combined operation of section 112 of Act XLII of 1950 and the provisions of sections 6 and 7 of Regulation I of 1888 was that the Court of Wards could in its own discretion and on its subjective determination assume the superintendence of the property of a landlord who habitually infringed the rights of his tenants and the exercise of the discretion of the Court of Wards cannot be questioned in a civil court section 112 of Act XLII of 1950 read with the provisions of Regulation I of 1888 therefore infringed the fundamental rights of the petitioner guaranteed by article 19 1 of the Constitution and was to that extent void ii the provisions of section 112 cannot be regarded as a  reasonable restriction imposed in the interests of the general public on the exercise of the right conferred by article 19 1 f because they completely negatived the right by making its enjoyment depend on the mere discretion of the executive 136 1050 iiithat section 112 was not validated by article 31 A of the Constitution as it was not a law providing for the acquisition by the State of any estate or of any rights therein or for the extinction or modification of any such rights within the meaning of article 31 A
The word modification in the context of article 31 A only means a modfication of the proprietary right of a citizen like an extinguishment of that right and cannot include within its ambit a mere suspension of the right of management of the estate for a time definite or indefinite