Case: SETH NAND LAL AND ANOTHER Vs. STATE OF HARYANA AND OTHERS


Decision:
0[ds]The constitutional validity of Article 31-A has all along been upheld by this Court since Sankar Prasads [1952] 3 SCR 89 case and its validity was not put in issue hi Keshavananda Bharatis [1973] Suppl. SCR 1   case but the constitutional validity of Article 31C was sought to be canvassed by reference to Article 31A. Moreover, consequent upon the introduction of Article 31A in the Constitution in 1951 this Court has repelled the challenge to land reform laws as violative of fundamental rights conferred by Articles 14, 19 and 31 in The State of Bihar Vs. Sir Kameshwar Singh, . In our view, it is manifestly clear that the Principal Act (26 of 1972) together with all the amendments made therein which essentially is meant for imposition of ceiling on agricultural holdings and acquisition and distribution of the surplus area to landless and weaker, sections of the society is in substance and reality an enactment dealing with agrarian reform and squarely falls within Article 31A of the Constitution and as such will enjoy the immunity mentioned above.In the first place, there is no doubt that for the purposes of the Act the concept of family has been defined in an artificial manner as meaning husband, wife and their minor children and excludes major sons and unmarried daughters. Secondly, u/s 4(1) the primary unit of family is confined to five members, namely, husband, wife and their minor children upto three with reference to which permissible area has been prescribed, but u/s 4(2), the permissible area is said to increase by one-fifth of the permissible area of the primary unit for each additional member of the family, such as the fourth or fifth minor child etc. but subject to the maximum limit prescribed in the proviso, namely, the permissible area shall not exceed twice the permissible area of the primary unit of the family. Thirdly, in respect of each separate unit, namely, each adult son living with his parents the permissible area will be further increased up to the permissible area of the primary unit of a family u/s 4(3), provided that where the adult son also owns any land the same shall be taken into account for calculating the permissible area. In other words, in cases where the primary unit of family owns or holds land (say 54 acres under Clause (1) (c) of Section 4) and an adult son living with the family also owns or holds similar and of his own (say 54 acres) then the permissible area for the family (sic) be 108 acres after clubbing the two holdings u/s 4(3) and (sic) will be no question of any augmentation of area for the family (sic) in cases where the separate unit (adult son) owns or holds no land of his own but is living with the family the primary units holding gets augmented up to two units, that is to say, the family will be entitled to retain 108 acres and the balance will be surplus simply because the adult son is living with the family; but no such augmentation will occur if unmarried daughter or daughters are living with the family or if the adult son is living away separately from the family.15. It is not possible to accept the contention of Mr. Tarkunde for two reasons. It is true that provisions pertaining to artificial definition of family and the adoption of double standards for fixation of ceiling contained in the instant Act are similar to those which obtained in the Kerala Agrarian Relations Act, 1961 and the Madras Land Reforms (Fixation of Ceiling on land) Act, 1961, but even so, there are two distinguishing features which would make the ratio of those two decisions inapplicable to the instant case. In the first place, in both these decisions it was an admitted position that the concerned enactments were not governed by or protected under Article 31-A of the Constitution and it was in the absence of such protection that the attack to the material provisions of the enactments on the ground of violation of Article 14 was entertained by this Court. At page 833 of the Report in the first case, there is a categorical statement made to the effect that the concerned Act, so far as it affected the petitioners therein, was not protected under Article 31-A and it was open to assail it as violative of the rights conferred on them by Articles 14, 19 and 31 of the Constitution. Similarly, at page 84 of the Report in the second case, there is a statement to the similar effect that the Madras Act was not protected under Article 31-A of the Constitution and it was in that background that the Court considered the attack based on Article 14 on the two main provisions of the Act, relating to ceiling area u/s 5 and compensation u/s 50 read with Schedule III of the Act. In the instant case it cannot be disputed that the principal Act(26 of 1972) as amended subsequently is a piece of agrarian reform legislation squarely falling with Article 31-A of the Constitution and, therefore, the Act and the concerned provisions would be immune from attack based on Articles 14, 19 and 31 of the Constitution. Secondly, in both these decisions, no material by way of justification was put before the Court on behalf of the State for the adoption of the double standard in the matter of fixing the ceiling read with the artificial definition of the family which resulted in discriminatory results and this has been specifically mentioned by the Court in both the Judgments, while in the instant cast on behalf of the State of Haryana, as we shall indicate presently ample material has been produced before the Court justifying the adoption of the artificial definition of family and the double standard for fixing the ceiling negativing the violation of Article 14.On behalf of the State material in the form extracts from Reports of the Committee on Panel of land Reforms under Planning Commission, (January 1956), extracts from a note prepared in the Land Reforms Division of the Planning Commission (I960), extracts from Second Five Year Plan, Chapter 9 on Agrarian Land Reorganisation, extracts from the Report of the Committee on Ceiling on Land Holdings-Planning Commission (April 1961), extracts from Summary Record of Chief Ministers Conference on Land Reforms (26-27 September, 1970), extracts from Summary Record of Chief Ministers Conference on Land Reform (23rd July, 1972), and Guidelines drawn up on the basis of the conclusions of the Chief Ministers Conference (23rd July 1972), and extracts from Ceiling on Agricultural Holdings by P.S. Appu published by the Ministry of Agriculture, Government of India in 1972, has been placed before the Court from which it will appear that the State had applied its mind seriously to these questions : whether family should be adopted as a unit instead of an individual for applying ceiling on land holdings, what should be the size of the family, why artificial definition of the family should be adopted and why adoption of double standard-one for the primary unit of the family and another in respect of a separate unit when living with the family was left necessary, what type of and in what cases clubbing should be prescribed etc., and after going through this material we do find that all these questions were considered having regard to the social and economic realities of our rural life and with a view to nullifying the transfers effected in favour of close relations for the purpose of avoiding the impact of ceiling legislation.On the materials placed and the initial presumption of constitutionally, we find considerable force in this submission. It is, therefore, not possible to strike down an enactment particularly the enactment dealing with agrarian reform which has been put on the Statute Book with the avowed purpose of bringing about equality or rather reducing the inequality between the haves and the have nots, as being violative of Article 14 of the Constitution simply because it has failed to make a provision for what was regarded as an exceptional case or a rare contingency. In our view, the material furnished on behalf of the State Government by way of justification for adopting an artificial definition of family and a double standard for fixing ceiling is sufficient to repel the attack on these provisions under Article 14. However, before parting with this point we might like to observe that the State of Haryana should consider sympathetically the case of unmarried major daughters living with the family and for that matter even the case of a divorced daughter who has come back to the family by providing for addition of some more land to the permissible area of the primary unit of the family for each such unmarried major daughter or such divorced daughter which again could be subjected to some maximum limit or the State of Haryana may draw inspiration from a kindred legislation like West Bengal Land Reforms Act 1955 as amended by West Bengal (Land Reforms) amendment Act, 1972It was urged that since the husband has been given the right to furnish the declaration as also to make the selection of the lands within the permissible area which he desires to retain, the husband can, while making the selection, give away his wifes land as surplus, and this was discriminatory against wife who might lose her land declared as surplus. We do not find any substance in this contention. In the first place, the selection of permissible area which is desired to be retained will ordinarily be guided by the consideration of retaining the best quality land with the family, be it of the husband or of the wife or even of the minor children, and not by the consideration as to whose land should be sacrificed. But, apart from this aspect of the matter, its preciously to meet such situation that Section 11(2) has been enacted which provides that the land so retained as permissible area of family and the separate unit shall be owned or held by the members of the family and also separate unit in the same proportion in which they owned or held land before the selection of the permissible area., In other, words, if out of sheer cussedness, the husband were to select his land which he desires to retain as the permissible area and gives away his wifes land as surplus, he will do so at his peril, for in the land so retained as permissible area he and his wife shall have a share in the same proportion in which they owned or held their lands before the selection of the permissible area. In our view, therefore, there is no question of, any discrimination resulting to the wife from the right of selection being given to the husband u/s 9(4)(c) of the Act.Here again, if the husbands behavior is guided by self-interest, as it would normally be, he would be indulging in the type of activity complained of at his own peril for he would not only be putting his own land into jeopardy of litigation but also lose the wifes land which will become surplus and vest in the State Government. The challenge to the aforesaid provisions under Article 14 must fail.19. As pointed out earlier, it is Section 7 of the Act which imposes a ceiling on agricultural land by providing that no person shall be entitled to hold, whether as a landowner or as a tenant or as a mortgagee with possession or partly in one capacity or partly in other, land within the State of Haryana exceeding the permissible area on or after the appointed day (24.1.1971). Permissible area u/s 3(1) means the extent of land specified as such) in Section 4. For the purpose of determination of permissible area Section 4(1) divides land into three categories and prescribes the permissible area in respect of each of the said categories and, as indicated earlier, it is 7.25 hectares (=18 acres) for category u/s 4(1) (a), 10.9 hectares (=27 acres) for category u/s 4(1) (bf (styled B category land Under Rule 2) and 21.8 hectares (=54 acres) for category u/s 4(1)(c) (styled C category land Under Rule 2). Section 4(5) further sub-divides land falling u/s 4(1)(a) into two classes : (i) land under irrigation from a canal or State tubewell (styled A category land Under Rule 2) and (ii) land under irrigation from privately owned tubewells, pumping sets, etc. (styled AA category land Under Rule 2) and the inter relation between these two classes is indicated in Section 4(5)It is impossible to accept this contention for the simple reason that fixation of the extent of permissible area has been actually done by Section 4(1) itself inasmuch as the said provision apart from dividing land into three categories prescribes and fixes the extent of permissible area in respect of each of the three categories, the extent being mentioned against each and it is merely the basis of evaluation to be made for determining the permissible area that is left for being prescribed by rules. The contention is, therefore, devoid of any substance.20. It was next contended by him that Rule 5 (2) (a) goes beyond Section 4(1) of the Act inasmuch as by its application it produces the effect of reducing the permissible area of a person from 21.8 hectares (=54 acres) to only 13.88 hectares (=34 acres) as would be clear from illustration No. 1 given Under Rule 5 (2) (a) and as such the rule is ultra vires Section 4(1). He also urged that prescribed manner was to be found both in Rule 5(1) and 5(2) but in its working Rule 5(2) does the reverse of what Rule 5(1) lays down. In our view these contentions proceed on a misconception of the functional role of these rules and a misunderstanding regarding the correct import of the first illustration given Under Rule 5(2)(a).21. At the outset we may say that it is fairly clear that the three categories into which Section 4(1) divides land for determination of permissible area are mutually exclusive and ordinarily if a land-holder is able to establish that the land held by him exclusively falls within one or the other category his permissible area would get straightaway determined by the extent specified in the section against each category and it is only when a land-holder has lands of more than one category that his permissible area shall have to be determined on the basis of evaluation to be made in the prescribed manner u/s 4(4) read with Rules 5(1) and 5(2). This is made clear by the opening words of Rule 5(1), namely, the land held by a person shall be evaluated by converting various categories into C category land according to the following formula. In other words, Rules 5(1) and 5(2) come into play only when a land-holder is holding lands of various categories. Further, it cannot be disputed that prescribed manner is to be found in both the rules, namely, Rules 5(1) and 5(2) and not merely in one or the other, but it is clear that the two rules deal with different topics and operate in different fields; whereas Rule 5(1) indicates the inter relation between different categories of land by prescribing the equating formula, Rule 5(2) provides for mathematical formula for arriving at the correct figures of different categories of lands by reference to irrigation intensity ratio specified against each of the Government canals or tubewells mentioned in the Schedule as also in case of lands irrigated by private tubewells and pumping sets but it is not correct to say that while furnishing illustrations Under Rule 5(2), Rule 5(1) has been ignored; in fact, the first illustration given Under Rule 5(2) (a) while applying the mathematical formula takes into consideration the inter-relation mentioned in Rule 5(1) and there is no question of Rule 5(2) (a) in its application doing reverse of what Rule 5(1) lays down. Further, if the first illustration given below Rule 5 (2) (a) is carefully analysed it will be clear there is nothing like Rule 5 (2) (a) going beyond Section 4(1) of the-Act as contended and there is no question of reducing the permissible area of a person from 21,8 hectares to only 13.88 hectares as suggested. In that illustration certain basic facts are assumed to exist, namely, the person is holding 25 hectares of land commanded for irrigation by a perennial canal the irrigation intensity ratio whereof is 57% and on these facts the illustration works out his permissible area. First by applying the mathematical formula given in Rule 5 (2) (a) the extent of A category land is computed at 7.12 hectares. (Incidentally the very fact that 25 hectares of land commanded for irrigation by a perennial canal having the irrigation intensity ratio of 57% can comprise A category land upto 7.12 hectares negatives the other contention of counsel for the appellants that to have A category land the canal must have intensity ratio of 200% per annum or to have B category land the canal must have intensity ratio of 100% per annum or that any land irrigated by a canal having less than 100% per annum intensity ratio must be categorised as C category land.) Therefore, after deducting 7.12 hectares as A category land out of 25 hectares, the balance 17.88 hectares is said to be C category land. Then by applying the equating formula in Rule 5(1) his entire holding of 25 hectares is converted into notional C category land (7.12X3 would give 21.36 to which 17.88 is added) which comes to 39.24. But in reality he holds only 25 hectares. Therefore, by applying the rule of three his permissible area in C category land would be 13.88 hectares and the balance of 11.12 hectares is declared to be surplus. There is no reduction of C category land from 21.8 hectares to 13.88 hectares as contended, for if out of 25 hectares 21.8 hectares were to be allowed to the land-holder as C category land by invoking Section 4(1) or only Rule 5(1) that will be ignoring the fact that out of his total holding an area to the extent of 7.12 hectares has the potential of A category land and, therefore, giving him 21.8 hectares as C category land would be clearly wrong. In our view, therefore, there is no substance in any of the challenges made to Rule 5(2) of the Haryana Ceiling on Land Holdings Rules, 1973.We find that the amount payable for such surplus land that vests in the State Government is to be calculated at the rates shown in the Table given below Section 16(1) and it is clear that the rates are based on the actual quality of the soil and its yield and the same cannot be said to be illusory. In any case no materials have been placed before us from which we could infer that the rates shown in the Table lead to illusory compensation.Section 18(1) and (2) provide for an appeal, review and revision of the orders of the prescribed authority and the position was that prior to 1976 there was no fetter placed on the appellate/revisional remedy by the statute. However, by the amendments made by Haryana Act No. 40 of 1976, Sub-sections (7) and (8) were added and the newly inserted Sub-section (7) for the first tune imposed a condition that all appeals under Sub-section (1) or Sub-section (2) and revisions under Sub-section (4) would be entertained only on the appellant or the petitioner depositing with the appellate or the revisional authority a sum equal to 30 times the land holdings tax payable in respect of the disputed surplus area. Under Sub-section (8) it was provided that if the appellant or the petitioner coining against the order declaring the land surplus failed in his appeal or revision, he shall be liable to pay for the period he has at any time been in possession of the land declared surplus to which he was not entitled under the law, a licence fee equal to 30 times the land holdings tax recoverable in respect of this area. On 6th June, 1978, the Act was further amended by Amending Act 18 of 1978 whereby the rigour of the condition imposed under Sub-section (7) was reduced by permitting the appellant or the petitioner to furnish a bank guarantee for the requisite amount as an alternative to making cash deposit and while retaining Sub-section (8) in its original form, a new Sub-section (9) inserted under which it has been provided that if the appeal or revision succeeds, the amount deposited or the bank guarantee furnished shall be refunded or released, as the case may be but if the appeal or revision fails the deposit or the guarantee shall be adjusted against the licence fee recoverable under Sub-section (8). In the High Court, two contentions were urged: first, that Section 18(1) and (2), as originally enacted in 1972, gave an unrestricted and unconditional right of appeal and revision against the orders of the prescribed authority or the appellate authority but by inserting Sub-sections (7) and (8) by Act 40 of 1976, a fetter was put on this unrestricted right which was unconstitutional; secondly, even the mellowing down of the condition by Act 18 of 1978 did not have the effect of removing the vice of unconstitutionality, inasmuch as even the conditions imposed under the amended Sub-section (7) were so onerous in nature that they either virtually took away the vested right of appeal or in any event rendered it illusory. Both these contentions were rejected by the High Court and in our view rightly.24. It is well settled by several decisions of this Court that the right of appeal is a creature of a statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory (vide the latest decision in The Anant Mills Co. Ltd. Vs. State of Gujarat and Others, .It is not possible to accept this contention for more than one reason. In the first place, the object of imposing the condition is obviously to prevent frivolous appeals and revision that impede the implementation of the ceiling policy; secondly, having; regard to Sub-sections (8) and (9). it is clear that the cash deposit or bank guarantee is not by way of any exaction but in the nature of securing mesne profits from the person who is ultimately found to be in unlawful possession of the land; thirdly, the deposit or the guarantee is co-related to the land holdings tax (30 times the tax) which, we are informed, varies in the State of Haryana around a paltry amount of Rs. 8/- per acre annually; fourthly, the deposit to be made or bank guarantee to be furnished is confined to the land holdings tax payable in respect of the disputed area i.e. the area or part thereof which is declared surplus after leaving the permissible area to the appellant or petitioner. Having regard to these aspects, particularly the meagre rate of the annual land tax payable, the fetter imposed on the right of appeal/revision, even in the absence of a provision conferring discretion on the appellate/revisional authority to relax or waive the condition, cannot be regarded as onerous or unreasonable. The challenge to Section 18(7.) must, therefore, fail.25. It may be stated that relying on Kunjukutty Sahib, etc., etc. Vs. The State of Kerala and Another, case counsel for the appellants also challenged Section 8(3) of the Act on the ground that it violates the second proviso to Article 31-A. The Act including said provision having been included in the Ninth Schedule will receive the protection of Art, 31-B and since the challenge to the constitutional validity of Article 31-B is being separately dealt with it is unnecessary to deal with the contention here.