DATTATRAYA GOVJND MAHAJAN & ORS. ETC. v.

STATE OF MAHARASHTRA & ANR.

January 27, 1977

[A. N. RAY, C.J., M. H. BEG, P. N. BHAGWATI, V. R. KRISHNA IYER

AND P. N. SH!NGHAL, JJ.]

Maliaraslitra Agricultural LaT1ds (Ceiling of Holdings) Act. 1961 as ame11ded /1y the Maharashtra Agric11lt11ral Lands (LoweriT1g of Ceiling of Holdings) AmeT1dment Acts 1972 and 1975 (Maharaslitra Act~ 21 of 1975 and 47 cf 1975 and 2 of 1976)-Ss. 2(11A), 2(22), 3.4.5.(1) rlw Schedule I and Sectio11 6 Principal Act and the \'Grious amending Acts, placed in tl1e Ninth Schedule- Whether the Act as amended, in so far as it creates an artificial family unit and fixes a ceili111< on holding of land by sucli family unit is void and violatfre of the second proviso to clause (I) of Art. 31A and not sal'ed by tl1' i11111111nisi11g provision enacted in A rt. 3 lB.

Constitutio11 of !11dia, 1950-Art. 31H, interpretation of.

Constitution of India, 1950-Art. 3l(A)(l), Second prol'iso-Wheth, r co11fer.s a Funda111en1al Right. • Constitution of Lndia 1950 (Seienteenth Amendment) A ct, 1964, S. 3-Exr:lanation----Construction of.

Interpretation of Statutes-Construction of a "pro1'i.\o" to a section or clause in an PllGCf!JU'llf.

Punjab Land Reforms Act, 1972 included in the protectilc umbrella uf rile iVi11th Schedule, subsequent to the decision of the Jligll Court declaring certain

provisions thereof as unconstitutional~A rt. 31 lJ b:!ing retrospectiie is entitled to the iJnn1unity conferred by it. '

U.P. lmpMition of Ceiling Oil Land Holdings Acr (Act Nu. l) 1971 as amended by Act No. 18 of 1973 and Act No. 2 of 1975, all i11c/11dcd in the Ninth Schedule-The question, "'hether s.5(6) is violarii•c of second provi.w to clause (l) of Art. 31A'. of the Constitution cannot be assailed by reawn of inununity {'flaC!Pd in .Art. 31R.

The Maharashtra Agricultural Lands (Ceiling of Holdings) Act, J 961 which \Vas enacted in in1plementation of the Directive Principles of State Policy contained in clauses (b) and ( c) of Art. 39 of the Constitution 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 with a Yiew to securin:;

the distribution of agricultural land in a manner wJ:!ich would best observe the common good of the people.

Maharashtra Amendment Act 21 of 1975 effected radical amendments in the principal Act by lowering the ceiling on agricultunil holding and created a concept of artificial family unit for fixing ceiling on. holdings of agricultural land.

The person as defined in s.2(22) r/w. s.2(ll) a1; d his spouse and their minor daughters were clubbed together for the purpose of constituting a family unit as defined in the Explanation to s.4 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 fl''lit!Om in the High Court of Bombay challenging the constitutional validity of the Principal Act, as amended on various grounds since the effect of the provisions of the pricipal Act as amended by the three Maharashtra Acts, viz. 21 of 197 5, 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 (l) Art. 3 IA and was not saved by the immunising provision enacted in Art. 31 B.

The High Court dismissed them.

The main contention was that in so far as the Act created an artifici"I

,. "

... ..,-__ --=---.. •

.. l

D. G. MAHAJAN 1'. MAHARASHTRA (Bhagwati, J.) 791

the petition holding that Art. 31B 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 Art. '3 lB a pOBt 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 •ny inconsistency with any provision of PJ!rt Ill is available only in case of pre-constitution legislation. (ii) The second proviso to clause ( 1) of Art. 37 A does not confer any Fundamental Right but merely imposes a !imitation on the .legislative competence of the legislature and, therefore, Art. 31 B does not exonerate the Act from its obligation to conform with the requirements of the second proviso to clause Jl) of Art. 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 \vell-recognised canon of construction that a proviso n1ust be read so as to carve out from the inaln pr6vision somtthing which would otherwise fall with it and (iv) The Explanation to s.3 of the Constitution (Seventeenth Amendment) Act. 1964 shows that an acquisition n1ade in contraention of the second proviso to clause (i) of Art. 31A is void and does not have the protection of Art. 31B, even if the law under which such acquisition is made is included in the Ninth Schedule.

Dismissing the appeals, the Court, Held : Per Bhagwati. ). (for himself and on behal[ of Ray, C. J .. Beg and Shing.hal, JJ.) (I) The Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 196 I as amended by Maharashtra Acts 21 of 1975, Maharnshtra Act 47 of 1975 and Maharashtra Act 2. '?f 1976 in s_o far as it creates an artificial concept of family

unit and fixes a ce1lmg on holdmg of land by such family unit, does not conflict with the second proviso to clause (1) of Art. 31A. [810 El ·

 (2) It would not be possible to say in the case 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

liim" and hence in such a case there would be no question of any violation of the provision enacted in the second proviso to clause (I) of Art. 3 !A 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 'lmit may lose the land held by them, but that cannot be helped, because having regard to the social and eco'nomic 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-Bl

(3) Even if the Act, in so far as it introduces an artificial concept of a family unit and fix-es ceiling on holding of agricultural land by 'such family unit, is violative of the second proviso to clause (I) of Art. 31A it is protected by Art. 318, by reason of its inclusion in the Ninth Schedule.

[808 F-G] Hasmukh/al Dayab/wi v. State of Gujarat [1977] 1 SCR 103 followed. ( 4) It is an elementary rule of construction that a statutory pro".isiop must al ways be interpreted in a manner which would suppress the m1schwf 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 obi<:ctive of Art. lB _is to mae th~ m?st comprehenshc provision for saving agra~1n rform leg1slat10~ from mvahdat10n on 1:be ground of infraction of any prov1s10n m Part III and 1t must therefore be so mterpreted as to have the necessary sweep and coverage.

An expansive _interpretation must be placed on the language of Art. 31 B so to carry out the obJect and purpose of enacting that Article.

[803 F-H]

~I\.

(6) Article 31.B is sufficiently wide to protect legislation not c•.U)' where it takes away or abridges any of the rights conferred by any provisions of Part Ill but also where it is inconsistent with any such provisions.

[803 H, 804 A]

( 7) The words "such Act, Regulation or provision is inconsistent with or lakes away or abridges any of the rights conferred by ani provision of this Part" m Art.3 lB are clearly an echo of the language of clauses ( 1) and (2) of Art. 13 and they have obviously been employed because the enactments specified Ill th". Ninth Schedule may be pre-constitution as well as post-constitution laws.

But, it _woud not be right to introduce an artificial dichotomy in Art. 31 B by correlatmg the first part of the expression namely, "is inconsistent wirh ..... . ani: pr_ovisions of this . Part" and confining its applicability to pre-constitution legtSlat10n and correlatmg and confining the applicability of the other Part of che expression namely "takes away or abridges ; my of the richtsconferred by; any provisions of this Part" to post constitution legislation.

Hoth the parts of the expression, on a plain natural construction of the langua"c o; Art. 3 lB apply equally to post-constitution legislation as well as pre-c0nstit~1tion

legislation.

[803 D-F] .

(8) The Second Proviso to clause (1) of Art. 3 !A does confer a Fundamental Right.

The second proviso to Art. 3 lA confers a right higher than the one under clause (2) of Art. 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 te Act by reating an artificial concept of a family unit nnd fixing ceiling on holdmg of agricultural 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 Art. 31-B.

[804 B, 806 E]

(9) The second proviso to clause (1) of Art. 31A is also couched in the negative language like clauses (1) and (2) of Art. 31 and it imposes a fetter on the exercise of the legislative power of the State by providing. that the Sta1e shall not be entitled to make a Jaw 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 fundament&l right conferred on the owner of the land.

It is by imposing limitation 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 v. Ka111es/1war Singh [1952] SCR 889 @ 986; R. C. Cooper

v. U11io11 of India [1970] SCR 530 @ 569, reiterated.

(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 !imit.ation of legislative power from the point of view of the State is conferment of nght 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 secon.d proviso clearly confers a right to property on a person holding land under his personal cultivation. r805 F-Gl

(11) The Explanation to s. 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 ( l) of Art. 3 lA, it shall, to the extent of contraventon be void. Obviously this Explanation was rendered necessary, because otherwise, acquisition under the Rajasthan Act, 1955, even if in cont.ravention of the second provise to clause (l) of Art. 3 lA y.1ould have been valtd under _.it. 31 B snd that result the Parliament did not wish to produce.

It was mamtestly fiOl 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 (1) 0f Art. 3 lA and that Art.

31 B should not protect it from invalidation. [806 G, 807 F-Hl

' lo(

• .,

Ii>. G. MAHA.JAN v. MAHARASHTRA (Bhagwaii, J.) 793

(1_2 J It is true that the orthodox function of an 'explanation is to explain the meamng and effect of the main provisif>n 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 clefiect such intention.

[807 D-E]

( 13} It is true that the proper. function of a. proviso is to except or qualify something enacted m the substanhve clause, which, but for the proviso would be within that clause.

The question is one of interpretation of the provfao and there is no rule that the proviso must always be restricted to the ambit of th main enactment.

(805-H, 806A]

Ishwarlal Thakarlal A/111a11ia v. Motablwi Nagjibliai (1966] 1 SCR 367 @; 373, followed.

C. A. 1040176.

(14) The inclusion of the Punjab Land Reforms Act, 1972, in the Ninth Schedule as entry 78 by the Constitution (Thirty Fourth Amendment) Act, 1974 subsequent to the decision of the High Court entitles it to the immunity conferred by Art. 3JB. It does not suffer from any of the constitutional infirmities alleg ed in the writ petition.

[814 C-E] Hasmllklilal v. State of Gujarat (1977) I SCR 103, applied.

C.A. 1307176.

(15) Section 5, sub-section (6) of the U.P. Imposition of Ceiling on Lrnd Holdings Act is valid and its constitutional validity cannot be assailed by reason of the immunity enacted in Art.

3JB.

Section 5(6), even if it contravenes the second proviso to clause (l) of Art. 31A is validated under Art. 31B by virtue of inclusion under the protective umbrella of the Ninth Schedule.

[~12 C-E Per .Krishna Iyer, J. (concurring)

(l) The Maharashtra, the Punjab and the 1.J.P. Acts are not unconstitutional taking the constructive view that Art. 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] E

(2) The purpose of Art. 31-B is conferment of total immunity from challenge on the score. of violation of Part ill.

The words used are as comprehensive as English language 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 Art. 3 lB. No master of English legal diction could have med, 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.

It is not correct to argue that the phraseology of Art. 3 lB must be correlated to Art. 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.

Wbethcr the manner of expression used is in positive terms or negatively, whether the >; tatutory technique of a proviso, saving clause, exception or explanation, is used or a direct interdict is imposed, the substantive content is what matters.

Many of the Articles in Part HI worded in a variety of ways, arm the affectod individua _ with a right and pro tanto _prohibit the legislature and the execntivc fron1 cn<Jcting or acting contra. [823 A-Bl ( 4) A great right is created in favour of owners to get compernation '1t net less than the market value if lands withiii the ceiling limit and in pec, on; il cultivation are acquired by the State.

This is a fundamental right and is a crenturo of the 2nd proviso to Art. 31-A(l).

An independent provision may occasionall) incarnate as a humble proviso. [823 F-G]

(5) It is absolutely plain that in the context setting and purpose of a provi sion even a proviso may function as an independent clause.

[823 G]

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos : 1132-1164 of 1976

_ (Appeals by Special Leave from the Judgement and Order dated 13-8-76 of the Bombay High Court (Nagpur Bench) in S.C.A. Nos. 1758, 1481, 2130/75, 358, 359/76, 2089, 1456, 1818, 1823, 1824, 1950, 1951/75, 53/76, 803/76, 1440/75, 340/76, 1449, 1452, 1394/75, 40, 771; 1431, 1531, 1532/76, 1652, 1622/75, 120, 126, 428, 610, 1317, 1831/75 respectively) 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. 9257 /75) and

Civil Appeals Nos. 1040 of 1975 and 1220-1248 of 1976

(From the Judgement and Order dated 14-2-74 and 1-11-73. 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, 3629/73 and 4004/74) and

Special Leave Petition (Civil Nos. 3023-30.n, 3894. 4026-4027. 3177-3197, 3203-3213, 3358-3359, 3392-3404, 3477-3483, 3661- 3663, 3059-3060, 3487-3488, 4047, 3365-3377, 3406-3434, 3439- 3464, 3495-3511, 3516-3517, 3519, 3529-3551, 3645-3660, 3680- 3695, 3719-3782, 3787-3816, 3843-3846, 3853-3864, 3867-3868, 3696-3703, 3199, 3467-3476, 3524-3537, 3597-3621, 3889-3893, & 3899-3902/76.

V. M. Tarkunde, (CAs. 1132 &

1147), S. N.

Klwrdekar, in CAs. 1132 & 1133 M/s. Vallabh Das Mohta, in CA .. 1156176, Dr ..

N. M. Ghatate, S. Balakrishnan & A. M. Bapat, in CAs. 1132 & 1147 for the appellants in CAs. 1132-1136, 114 7 & 1150-64.

S. B. Wan & Mrs. Jayashree Wad, for the Appellants in CAs. 1137-1146, 1148-49.

Niren De, Attornev General in CAs. 1132 & 1137, M/s. M. M.

Kazi & M. N. Shroff, for the Respondents

Niren De, Attorney General, R. N. Sachthey, for the Attorney General in CAs. 1132, 1307 & 1040.

K. Rajendra Chowdhary, for the interveners M/s. Shankar Balaji Jagtap, Madan Lal Fakir Chand Dudheida and Chandrabhan Roop• chand Dalw!e (in CA. 1132). ·

L. N. Sinha, Sol. Genl. 0. P. Rana, CA. No. 1307 of 1976, for the Appellants.

S. Markendaya, for the Respondents in CAs. Nos. 1040/75 & 1220- 1248 of 1976 :-

H L. N. Sinha, Sol. Genl., (!. S. Wasu, Advocate General, Punjab)

0. P. Shanna, Mrs. N. Uppal and Miss Mus11111 Chaudhary, for the Appellants.

• •

D. G. MAHAJAN v. MAHARASHTRA (Bhagwuii, J.) 795

V. M. Tarkunde, in CA. 1223-(M/s. K. P. Bhandari. J. B.

A Dudachanji and'D. N. Mishra, For the Respondents in CAs. Nos. 1223 .&1225 /76.

Mr. V. M. Tarkunde, for Mrs. Gita Bhadur---!Yl/s. K. P. Bhandari, J. B. Dadachanji, M. M. Ahuja & D. N. Mishra, for the Interveners .Mrs. Gita Bhadur, Brij Bhushan Shinghal, Smt. Lal A mol Kaur, Mrs .

.Uma Shinghal in CA. 1220.

K. L. Jagga, D. D. Sharma, Sant Singh in CAs. 1220-48 and 1040.

R. N. Sachthey, State of Haryana.

For the Petitioners in: S.L.Ps. (Civil)

Naunit Lal and Miss Lulita Kohli, SLPs. Nos. 3023-27, 3894 & c 4026-27.

S. B. Wad and Mrs: Jayashree Wad, SLPs. Nos. 3177-97, 3207-13, .3358-59, 3392-3404, 3477-3483, 3661-3663, 3059--69, 3487-88 & 4047/76 & 3199/76.

Vallabh Das Mohta, N. M. Ghatate and S. Balakfishnan, 'SLPs. Nos. 3365-77, 3406-34, 3439-64, 3495-3511, 3516-17, 3519, D 3529-51, 3645-3660, 3680-95, 3719-82, 3787, 3816, 3843-46, 3853- 64, 3867-68 of 1976.

K. B. Rohtagi, M. K. Garg and M. M. Kashyan, SLPs. Nos. 3696- 3703 /76.

A. G. Ratnaparkhi, SLPs. Nos. 3467-3476/76.

E V. N. Ganpule, SLPs. (Civil) Nos. 3524-27 /76.

M. S. Gupta,& B. B. Marwal, SLPs. (Civil) Nos. 3597-3621/76.

R. A. Gupta, SLPs. (Civil) Nos. 3889-93/76.

Mrs. S. Bhandare, M. S. Narasimhan, A. K. Mathur, A. K.

Sharma and K. C. Sharma, SLPs. (Civil) Nos. 3899"-3902/76.

The Judgments of A. N. Ray, C.J., M. H. Beg, P. N. Bhagwati and P. N. Shinghal, JJ. were delivered by Bhagwati, J., V. R. 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 constitutional validity of the Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 (hereinafter referred to as the Principal Act) as amended by the Maharashtra Agricultural Lanas (Lowering of Ceiling of Holdings) (Amendment) Act, 1972 (hereinafter referred to as the Maharashtra Act 21 o' 1975), the Mah•arashtra Agricultural Lands (Lowering of Ceiling of Holdings) (Amendment) Act, 1975 (hereinafter referred to as :Maharashtra Act 4 7 of 1975) and the Maharashtra Agricultural Land,;

(Ceiling of Holdings) {Amendment) Act, 1975 (hereinafter referred to as Maharashtra Act 2 of 1976).

The Principal Act was enacted

3-206SCJ/77

7 96

SUPREME COURT REPQRTS

[1977) 2 S.C.R.

by e Maharashtra 1:-egislature in implementation of the Directive Pnnc1ples of State Policy _contained in clauses (b) and (c) of Art. 3<} of the Constitution.

It imposed a maximum ceiling on the holding of agricultural land in the St>ate 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 ,\.mendment) 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 (Thirtyninth 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 <; fleeted 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 fol- _ lowed by Maharashtra 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 Nmth Schedule along with certain other enactments by the Constitution (Fortieth Amendment) Act, 1976.

The result was that the Principal Act, as amended 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 Art. 31-B.

The appellants are landholders in the State of Maharashtra and

ince the effect of the prvisions of the Principal Act, as ame'lded by Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 was to expropriate a part of the lands telonging to them, they preferred writ petitions in the High Coult of

; Bombay challenging 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 challenge 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 Art. 3 lA.

The only contention that has been urged before us on behalf of the appellant> is that the Principal Act, as it stands after its amendment by Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and Mahara>htra 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 fumily unit, since it is violative of the second proviso to clause ( 1) of Art. 3 lA and. is nor saved by the immunising provision enacted in Art. 31-B.

Tnis contention was also urged before the High Court but it was negatived on the ground that Art. 3 lB afforded complete immunity to the provisions of the Principal Act.

We may make it clear at this stage that for the sake of convenience, 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.

'II

D. G. MAHAJAN v. MAHARASHTRA (Bhagwati, J.) 79 7

1be •appellants in the present appeals assail this view taken by the A 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 3 lA 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 (I) of Article 3 lA should B receive our consi_deration earlier in point of time, it would be convenient first to exa.mine 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 whether 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 31B in C 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 D land to landless and other persons with a view to securing the distribution of agricajtural land in a manner which would best subserve the common good of the people.

Sectio_n 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 E reads as follows :

"3 (1) Subject_ to the provisions of this Chapter and Chapter III, no person or family unit shall, after the o:.>mmencenient 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 to be surplus land, and shall be dealt with in the manner hereinafter provided (or surplus land.

In determining surplus land from the holding of a person or as the case may be, of a family unit, the fact that the' person or any member of the fa1nily unit bas died (on or after the commencement date or any date subsequent to the da-te on which the holding exceeds the ceiling area, but

before the declaration of surplus land is made in respect of H that holding) shall be ignored; and accordingly, the surplus land sh-all be determined as if that person, or as the case may be, the member of a family unit had not died."

A \Vhat ohall 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 .:ictermining... 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 'famiiy unil' 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 m.inor sons and minor unmarried daughters; or

( c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses."

Sec.:tion 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 members 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 meinber 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 1 lA which de-al with ri: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, description and full particulars of the land which is delimited as surplus land.

Sub-section ( 4) of section 21 provides that •as soon as may be after the announcement of the declaration, 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 wh'.ch possession is taken, be deemed to be acquired by the State Government for the purposes of the Act and sh•all accordingly vest, without further assurance and free from all cncnmbrances, in the State Government.

Sections 21 to 26 provide for determination and payment of compensation for the surplus 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

D. G. MAHAJAN v. MAHARASHTl{A (Bhagwati, J.) 799

Government to distribute the surplus land in certain order of priority with a view to carrying out the purposes of the leg:slation.

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 tht ther~. are two uits recognised by the Act for the purpose of fixmg ce1lmg on holdmg of agricultural !•and.

One is 'person' which by its definition in section 2, sub-section (22) includes a family and 'family' by virtue of section 2, sub-section ( 11) includys 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 St•ate Government. . But the Act has created an artificial 'family unit' and a person and his spouse and their minor sons and minqr 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 togther 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 a> 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 whether 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 a:s 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 tpe 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 Emitation

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 lal)d reforms in order to improve our rural econo1t1y was acutely realised. w?n, on .attaining independence, we became free to mould our dest1111e.s.

With that end in view, immediately after independence, the leg1s!atures of the H country started enacting laws for bringing about a.ranan ref?rm a.s a part of the process of socio-economic reconstruction.

The 1mpos1tion of ceiling on agricultural holdings was found necessary as a part

of the scheme of agrarian reform because it was calculated to remove undue balance in society resulting from landless dass 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 ideas. ('1) The growth of monopolistic tendencies m 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 objectives :

(1) meeting the widespread desire to possess land; (ii) reducing glaring inequahties 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 disparities in the distribution of wealth and income are inconsistent with economic progess 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 hoth social status and economic opportunity for different groups in the rural population.

For building up a progressive rural economy, it is essentia!l 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 landless sections of the rural population to gain in social st>atus 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.

Ihe 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 agricultural land ownership in the country and making some land available for distribntion among the landless.

It was in implementation of this policy that the Principal Act was passed by the l\faharashtra 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-Proi:ress of Lqnd Reforms 1955, p. 19.

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D. G. MAHAJAN v. MAHARASHTRA (Bhagwati, J.) 8 0 1

subsequent amendments.

But until the enactment of Maharashtra Act 21 of 1976, ceilifl:g 'Ys made applicable only to holding of agricultural at lands by md1v1duals.

However, it was felt that if the ceiling law was to be really effective, it was necessary to take the fumily as a unit for the purpose of applying the ceiling.

There were two main reasons 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 account"(1) 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 agricultural land by the family unit.

The question is whether the Act, in so far as it makes this mdical provision, is protected 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, notwithsmnding anything contained in Article 13, no law falling wit:llin any of the categories specified in sub-clauses (a) to { e), 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 Article 14, Article 19 or Article 31.

Then 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 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 smnding thereon or appurtenant thereto, unless the law relating to acquiring of srich land, building or structure, provides for payments of compens•ation at a rate which shall not be less than the market value thereof."

Article 31A together with the first proviso was added in the Consti- H tution• by the Constitution (First Amendment) Act, 1951, while the

(!) Report of the Committee on 'Size of Holdings' set up by the Panel on Land Reforms.

second proviso was introduced by the Constitution (Seventeenth.

Amendment) Act, 1964.

Article 31-B was also introduced in the Constitution at the same time as Article 3 lA and it reads as follows :

"31-B.

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 thfs Part, and notwithstanding any judgment, 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 construction of the language of Article 31-B a post-Constitution enactment such as the Act, is protected from invalidation only when it takes away or abridges any of the rights conferred by any provision of Part Ill 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 validation 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 immunity given by Article 31-B. The appellan13 contended that the second proviso to clause (1) of Article 3 lA 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 3 lA.

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 ignores 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 mina the object and purpose of the e1iactment 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 Constitution, beoause 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 agr::irian reform, it was not possible to change the face of rural India anrl to uograde the standard of living of the large masses of people living in the villages.

In fact the promise of agrarian reform is imp11cit 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

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I}, G. MAHAJ;\N v. MAHARASHTRA (Bhagwati, J.) 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 z•amindaris and the like but restructuring of village life itself taking in its broad embrace the entire rural population-should be saved from invalidation.

It was with this end in v'iew that Article 31-B was introduced in the

onstituion alC'.ng with Article 3 lA.

The object and purpose of

mtr.odumg Articl_es 3.lA. and 31-B was to protect agrarian reform leg1slat10n from mvahdation.

We shall consider the provisions of Article 31 A a little later when we. examine rhe 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 Pmt III".

It is immaterial whether such enactment is inconsistent with any provis!ons of Part III or takes away or abridges any of the rights conferre:d by any such provisions, for both infirmities are cured by Article 31-B.

The words "such Act, Regulation or provision is inconsistent wiih or takes away or abridges any of the rights conferred by, any ]JrOYisions 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 correla_ting 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.

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 construction of the language of Article 31-B, apply equally to post-Constitution legislation as well as pre-Constitution legislation.

It must be remembered that the aim and objective of Article 31-B is to make the most comprehensive provision for sa\•ing agrarian reform legislation from invalidation on the ground of infracyion of any provision in Part lll and it must, therefore, be so interpreted as to have the necessary sweep and coverage.

It is an elementary rule of construction that a statutory provision must always be interpreted in a manner which wo_uld suppress the mischief and advance the remedy and carry out the ob1ect and purpose of the legislation.

Moreover, we must not forget. as pointed out by Mr. Justice Holmes, that it is the Constitution that we are expounding.

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 accomp:ish.

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 nt only where it takes away or abridges any f the rights conferred by any provisions of Part III, but also where it

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 restnction on legislative competence, the Act, in so far as it contrayenes or is inconsistent with the second proviso to clause ( 1) of article 31A would still be saved from invalidation hy Article 31-B.

But we are clearly of the view that the second proviso to clause ( 1). o~ f\rtile 3 ~A does confer a fundamental right.

This conclusio~ is nev1ta_ble 1f we look at the conspectus of the provisions contamcd m Article 31 and 3 lA. These provisions occur under the heading "Right to Property" and they define and delimit the right to property guaranted 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 S.R. Das, J., in State of Bihar

v. Kameshwar Singh(')" it confers 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 deprive a person of his property.

This confers some protection 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 language''.

Article 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 fundamental 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 ;:icquisition 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 legislature to make a law authorising acquisition or requisitioning of property is the measure of the fundamental right conferred by the clause.

It was for this reason pointed out by this Court in R. C. Copper v. Union of Tndia(') : "The function of the two clauses--dauses (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 3 lA

(1) [1952] S.C.R. 889 at 988.

2) [1970] 3 S.C.R. 530 at 569.

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D. <!I. MAHAJAN v. MAHARASHTRA (Bhagwati, !.) 805

carves out an exception to the applicability of Article 31-and also A Articles 14 and 19-and immunises certain categories or 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 tci improving the life conditions of the common man, such agrarian reform legis- B lation is not required to meet the chat:enge 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 receive the assent of the President.

That is a condition for the applicability of the exception contained in Article 31A. 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 C State. of any estate and thus falls within one of the categories" specified in Article 31A, it would not qualify for immunity under the provisions of that article, if it seeks to acquire any portion of the land held by a person under his personal cutivation 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 compensation at a rate which shall not be less than D 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 E 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 limitation on the exercise of legislative power that protectfon is given to the owner in respect of the land held by him under his personal cultivation within the ceiling limit.

Restriction on legislative competence and conferment of right on the holder of land within the ceiling limit are complementary to F each other. They are merely two different facets of the same provision.

What is limitatio°' of legislative power from the point of view of the State is conferment of right from the p_oint 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 l:•mit except on payment of the market value of such land.

It G 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 recogn;•sed 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 H true that .the proper function of a proviso is to except or qualify something enacted in the substanti•ve clause, which, but for the provision would be within tliat clause but ultimately, as pointed out by this

Court in Ishverlal Thakorelal Almaula v.

Motibai Nagjibhai (') "-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 toi ensure payment of full market value as compensation to a person in personal cultivation of his land where a portion 0£ the land within the ceil}ng limit applicable to him is acquired by the State Government.

But for the second proviso, even if a law authorising acquisition of land with'.n the ceiling limit diJ not provide for payment of compensation, it would be protected from invalidation under Article 3 lA.

That was not a result which the Parliament favoured.

Parliament was anxious 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 wh:t:h 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 requi•res 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 1H 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 h:•s personal cultivation as is within the ceiling limit applicable to him and if the Act, by creating an artificial concept of a family unit anCI fixing ceiling on holding of agricultural land by such family unit, enables land within the ceiling lim:'t to be acquired without payment of full market value, it would be taking away or abridging Jhe 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 Articje 31-B, we must refer to one other argument advanced ori behalf of the appellants with a view to repelling the applicability of Article 31-B: The appellants leaned heavily on the Explanation to sect:'On 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 3 lA is void and does not have the protection of Article 31-B, even if the law under which such acqu;•sition is made is included in the Ninth Schedule.

We do not think this contention is well founded and in fact not much argument is needed to negative it.

The Constitution (Seventeenth Amend.ment) Act, 1964 was enacted by the Parliament with a view to expanding the scope of Article 31 A by enlarging the meaning of the expressi'On

(1) [1966] I S.C.R. 367 at 373.

D. G. MAHAJAN v. MAHARASHTRA (Bhagwati, J.) 807

'estate' and while doing so, the Parliament added the second proviso to clause ( 1) of Article 3 lA.

The Ninth Schedule was also amended by including certain State enactments 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 Rajasthari Tenancy Act, 1955 which was added as Entry 55.

Section 3 which amended th~ Ninth Schedule carried the following Explanation :

"Explanation.-Any acquisition made under the Rajasthan Tenancy Act, 1955 (Rajasthan Act III of 1955), in contravention of the second proviso to clause ( 1 ) of article 31A shall, _to the extent of the contraventi•on, 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 t_he second proviso to clause ( l) of Article 3 lA 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 illustration of the Rajaf; than Tenancy Act, 1955, the Explanation sought to explain and clarify that Article 31-B is not i•ntended to be construed as validating

contravention of the second proviso to clause ( l) of Article 3 lA.

This contention, which seeks to treat the Explanation as illustrative in character, is clearly fallacious. It is true that the orthodox function of an explanation is to explai•n 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 s 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 h•as 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 3 lA, it shall, to the extent of the contravention, be void.

Obviously, this Explanation was rendered necessary, because otherwise, acquisition under the Ra!jasthan Tenancy Act, 1955, even if in contravent:•; m of the second proviso to clause

(l) 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 acquis:•tion 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 invalidation. 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, i•n contravention of the second proviso to clause (1) of Article 31A shall, to the extent of the contravention, be void.

Parliament would not have resorted to the device of p; tcking out one legislation fro!Jl the enach ments 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 3 lA shall be void. The Explanation, i'n our view, far from supporting the construction contended for on behalf of the appellants, militates 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 (l) of Article_

31A.

The Allahabad High Court took the view i•n 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 Artitcle 31-B validates merely enactments specified in the Ninth Schedule' and not the executive action taken under those enactments, the plaing of the Act in the Ninth Schedule does not dispense with the requirement that executive action taken by the State in the shape of acquisition under the Act should conform to the restriction set out in the second proviso to clause ( 1) of Article 3 lA.

This view taken by the Allahabad High Court is a little difficult to understand.

The protection afforded by the second proviso to clause (I) of Article 3 lA is undoubtedly against acqui'Sition 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 thi's 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 made under it can be void as offending the second proviso to clause ( 1) of Article 3 lA.

The view taken by the Allahabad High Court is plainly erroneous and must be rejected.

We are, therefore, of the viw 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 (I) of Article 3 lA, it is protected by Article 31-B by reason of i'ls 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) i•n Hasmukhlal Dayabhai v. State of Gujarat(').

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

(I) (1977) 1 S.C.R. 103.

D. G. MAHAJAN v. MAHARASHTRA (Bhagwati, J.) 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 expressi•ng our opinion upon it.

We fail to see how any violation of the second proviso to clause (1) of Article 3 lA 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 ,;•mposed by the second proviso to clause ( 1) of Article 3 lA is against acquisition by the .State of any portion of land held by. a person under his personal cultivation which is within the ceiling l;•mit applicable to him, unless the law relating to such acquisition provides for payment of full prnrket value as compensation.

There are two basic condit; x:ms 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 ha$ created an artificial concept of a family unit and aggregated the land held by each member of the family unit for the purpose of appplyi•ng 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 3 lA. Bu.t 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 ceiling on holding of agricultural land.

One ii> 'pe_rson' 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 cei'Ing 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 . G member of the family unit is not regarded as a unit for the purposes of applying the limitation of ceiling area.

The ceiling limit in such a case is applicable only to the family unit and not to an individual memb1::r of the famly 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 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 appli+cable to the family unit, the acquisition is of any land "within the ceiling limi'I:

810 Sfjl'Ri:oME COURT. REJ'>OkTS [1977] 2 s.C.R.

applicable to him" and hence in such a case there would be no question of any violation of the provision enacted ;•a the second proviso to clause ( 1) of Articles 31 A 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, hav;•ng 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 tak.(:n by the State Legislature as a unit for the applicab;'1ity 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-economc 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 quafa'ications and exceptions that it will cases to be intelligible and become of fertile source of mischief.

Moreover, it is entirely for the legislature to decide what policy to adopt for the purpose of restructuring the agrarian system arid 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 outs; i(le 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 accordingly hold that the Act does not conflict with the second proviso to clause ( 1) of Article 3 lA 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 petifams before us and since they raise only one. question, namely that relating to the constitutional validity of the Act, they too must be rejected.

C.A. 1307 of 1976.

IlHAGWATi, 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 197$.

These four questions arise out of challenge to the constitutional validity of certain provisions of U.P.

Act No. 1 of 1971 as amended by U.P. Act No. 18 of 1973 and U.P.

Act No. 2 of 1975 (here:•nafter referred to as the amended U.P.

Imposition of Ceiling on Land Holdings Act) and they are in the following terms :

"l. Whether the acquisition of land under personal cultivation as surplus after ignoring sale deed under section 5 ( 6) of the U.P. Imposition of Ceiling on Land Hold:•,1gs Act is violative of second Proviso to Article 31-A ( 1) of the Constitution ?

' !",

' f

. '

. D. G. MAHAJAN v. MAHARASHTRA (8hagwati, J.) 811

2. Whether ignoring transfer made after 24th January, 1971, other than those excepted under Proviso to section 5 ( 6) of the both in relation to the determination of ceiling and surplus area, would amount to acquiring any portion of land under personal cultivation withi•n 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 Arti-1

cle 31-B of the Constitution by virtue of inclusion of U.P. Act 1 of 1971 and the two amending Acts, namely, U.P. Act No. 18 of 1973 and, U.P. Act No. 2 of 1975, in the IX SCHEDULE to the Constitution, compfomce would still be necessary of the provisions of second proviso to Article 31-A(l) of the Constitution?

4. Whether, in spite of protection_ having been given under Article 31-C of the Constitution to U.P. Act No. 18 of 1973 and U.P. 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 thei 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(l) of the Constitution? -

The first two questions were answered by the High Court against the State by holding that section 5, sub-sectixm (6) of the amended U.P. 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-sectjon and thereby authorises acquisition of land held by a person under personal cultivation within the ceiling limit applicable to him.

The High Court also answered the third question against the State on the view that Art. 31-B does not dispense with the requirement that an acquisition made by the State en if it be under an enactment specified in the Ninth Schedule, should conform with the second proviso to clause ( 1 ) of Article 31 A and if the acquisition is violative of that provso, 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 31 C of the Consti tution does not extend to violatitm of the second proviso to clause

(1) of Article 3 lA.

The a!.Jswer 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 seri9usly assailed before us by the State.

We will first deal with the third qm$tion since it is obvious that if the answer to that question is in favour of the State and it is

•-206SCI/77

812 &UPllBMB COURT JlEPOllTS


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 Art. 31A, it would become unnecessary to consider the first two questit>ns which raise the issue whether section 5, subsection (6) of the amended U.P. Imposition of Ceiling on Land Holdings Act is violative of that proviso, for even if it is, it would be protected by Art. 31-B in view of the fact that U.P.

Ad No. 1 of 1971 as also the two subsequent amending Acts, namely, U.P. Act No. 18 of 1973 and U.P. Act No. 2 of ins, are filcluded 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 Art. 31-B affords complete immunity to an enactment included in the Ninth Schedule against violation of the second proviso to clause (1) of Art. 31A and such an enactment is protected from invalidation on that ground.

Having regard _to this decisron, 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

U.P. Imposition of Cei'ling on Land Holdings Act, even if it contravenes the second proviso to cluase ( 1 ) of Article 31 A--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 tho first three questrons against the State and hold that section 5, sub-section (6) of the U.P. Imposition of Ceiling on Land Holdings Act is valid and its constitutionality cannot be assailed by reason of the immunity enacted in Artit:le

31-B.

The respondent will pay the costs of the appeal to the State.

C.As. 1040 of 1975 etc.

BHAGWATI, J.

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 3 lA of the Constitution.

The constitutional validity of the whole Act was challenged in the writ petitions giving rise to these two appeals, but the High Court negatived the challenge and upheld the constitutional validity of tho Act save in regard to those provisrons 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 invalid. 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

dauhter. It is obviously an artificial definition of family becauc

fady, as known in ordinary parlance, would i'nclude not only minor chddren but also major sons and unmarried daughters, whrcas

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D. G. MAHA.TAN v. MAHARASHTRA (Bhagwati, J.) 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 land•

owner or tenant or partly as landowner and partly as tenant in excess of the permissible area and sub-secti'on (2) of that section lays down what shall be the permissible area in respect of different classes ot land.

There is proviso (ii) to sub-sectio~ (2) of section 4 which says that where the number of members of a family exceeds five, the permissible area shall be increased by one-fifth of the permissible areai for each member i'D. excess of five, subject to the condition that additional land shall be allowed for not more than three such members.

Sub-section 4 of Sec. 4 J:ias two clauss which reads as follows :

" (a) Where a person is a member of a registered cooperative farming society, his share in the land held by such society together 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 famiiy shall be taken into account for determining the permissible area;

. (b) where a person is a membe_r of a family, 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 E 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 appFcabiiity of the permissible area.

The argument of the respondents, which found favour wi'th the High Court, was that these provisions are violative of the second proviso to clause ( 1) of Article 3 lA inasmuch as they permit <icquisition of land held by a member of a family under his personal F cultivation, though it mi•ght be within the permissible area for an ipdividual, without payment of full market value as compensatitm and hence they are constitutionally invalid.

This view taken by the High Court is assailed in the present appeals before thls 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 and1 hence it was not possible for the State to invoke the protection of Article 31-B.

But subsequently the Act has been i'ncluded 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 question arising under the Maharashtrai Agritultural Lands (Ceilin3

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

ceiling area.

The relevant provisi'Ons of the Maharashtra Agriculural 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 introduci'ng the concept 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 violatve 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 Maharashtra Agricultural Lands (Ceili'ng 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 invalidation under Article 31-B.

V./e may poi1nt out that the same view has been taken by this Court in regard to the constitutional validity of the relevant provisions of the Gufarat Agricultural Land, Ceiling Act (27 of 1961) in Hansmukhlal v. State of Gujarat.(') 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 constitufamally valid in Hansmukhlal's case (supra).

We accordingly negative the challenge to the constitutional 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 appellant.

There will be only one set of costs.

KRISHNA IYER, J.-Legal challenges to the constitutionality ot agrarian transformation through legislation die hard in our divided society, as is evidenced by this avalanche 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 between 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 brefliren 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 discriminatingly dwindled down his submissions before us to two minuscule issues which, nevertheless, arm of lethal H moment, if accepted.

The recurrence of attacks on the vires of land reform laws, even after being impregnably barricaded by the Ninth

(1) [1977] l S.C.R. 103

J,;

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D. G. MAHA.TAN v. MAHARASHTRA (Krish11a Iyer, !.)

chcdul~, 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, preambled with Iuscent solemnity in the words 'Justice-social, economic and political'.

The three great branches of Government, as creatures of the Constitution must reember this promie in their functional role and forget it at their per!!, for. to d? so will b~ a btryal o~ thOse high values and goals :which this nation set for itself m 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 exploit<ition 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 grnsp the dharma of the Constitution, the new orientation for the karma of adjudication becomes clear.

Our founding 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 contemplating the meaning of the Articles of the Organic law, the Supreme Court shall not dis- -0wn Social Justice.

We must. realise the vital role in Indian economic independence that the. land quesJion plays before approaching the constitutional issues urged before us.

The caste system and religious bigotry seek sanctuary in the land system.

Social status syndrom~, resisting the egalitarian recipe of the. Constitution, is the result of the hierarchical agrarian organisation.

The harijan serfdom or dalit proletarianism can never be dissolved without a radical redistrfbution 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' demnd 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, i's essential to its successful continuzition.

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 te Green Rev_qlution, 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, unle'ss the peasant is allowed to participate fairly soon in the Green Revolution, it will quickly change colour.

If it is to remain green,

workers on the I_and must no longer be exploited 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 castcsystem, 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 rc<eent 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 stratifica-- tion 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 transformation but of rural transformation as a whole.

It should b~ borne in mind that changes in land relations are not only propellers of socio-economic change, they are also reciprocally influenced b}'.. changes in the economic, technological, social, political and ideological 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 welll as of divergence in respct of land reform. programmes and their impact on socio:e_cqno-_ mic changes."_ · - (Studies in Asian Social Development-McGraw-Hill Publishing Co., Ltd., p. 5).

sniall wonder thatthe -framers of i:he Constitution .were stirred by the proposition that freedom 'in village India becomes 'free' only -when the agrarian community comes into its own and this necessitates radically re-Qrawing the rural real estate map.

A sensitied awareness of this background is essential while assessing the legal merit of . the submissions made by Shri Tarkunde which has fatal potential vis-a-vis the three impugned legislations in question.

We are directly concerned, in con'sidering the crowd of appeals from the three :Wgh Courts, w.ith Arts. 31A(l) * and 31-B which

•In its present shape, it was recast by the Constitution (Fourth) Amendment Act.

...

.,.

D. G. MAHAJAN v. MAHARASHTRA (Krishna Iyer, J.) 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 behaH.

He explained the quintei.Sential aspect of the problem. I quote it here because the voice cif 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. (Art. 31) the whole gamut of pictures comes up before my mind, because this article deals with the abolition of the . zamindari system, with land laws and agrarian reform. . ...

Now, ... a survey of the world. today, a survey. 9f Asia. <.: today will lead any intelligent person to see that the basic and the primary problem is the land problem today in ia, as iu India.

And every day of delay adds to the difficulties and dangers apart fro~· being an iii.justice in itself. .....

I am not going irito the justice or injustice of but am looking at it purely from the point of view of stability. Of

course, if you go into. the justice or injustice, you have to take ll longer view, not the justice o'f today, but the justice of yesterday also ..

We do. no1;. want anyone to suffer.

But, ineviyibly in big social changes some people have to suffer.

We have to think in terms 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; u I said, the interprett.ion of the Qiurt~ must be accepted as right but you; land the country has to wai_t witb. social and economic conditions-social and economic upheavals.:.__and we are responsible for them.

How are we

.· to meet them? How are we to meet this challnge 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 ad9itional articles 31 A and. 31 B and in addition to that there is a Schedule attached of a number of Acts passed by State Legislatures, some of which have been challenged or might be challenged and we thqught it best to save them from long delays and these difficulties, §O that

J:his process of change which has been initiated by the States should gO" ahead."

(Constitution First Amendment Bill Debates, d/16-5-51) .

. We now know the high seriousness. and wide sweep of the constitutional provisions falling for construction.

The purpose of Art. 31B is. conferment of total immunity from challenge on the score of. violation of Part III. . The words used are as comprehensive as. Engli<; h

A 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.

.. 1!:

I have, right at thP. 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

1rospect of agrarian re-structuring being threatened by fundamental nghts' archery, decided to armour such reform programmes with the sheath of invulnerability viz., the Ninth Schedule plus Art.

31B.

Once included in this Schedule, no land reform law 'shall 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 tinkering with legalistic skills is to cave in or assist unwittingly the slowing down of the process which is the key to social transformation.

The listening posts of the constitutional court are located, not in little grammar nor in lexicography nor even in pedantic reading of Provisos and Expfanations based on vintage rules but in the profound forces which have led to the provision and in the comprehensive concern expressed i°' 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 constitutional 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 contentions. Every presumption in favour of validity, semantics 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 reconcillation, 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 Agricultural Lands (Ceiling on Holdings) Act, 1961 (Act No. 27 of

1961) as amended, (especially ss. 4 and 5) proved ineffectual in the High Court and they. seek better fortune by urging some of the same argument~ 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 s. 5 ( 1) of the Punjab Land Reforms Act, 1972.

The third group is by the State of U.P. some of the provisions 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 U.P. Act.

The provisions under attack are substantially

, . .

D; G. MAHAJAN v. MAHARASHTRA (Krishna Iyer, J.) 819

; similar in nature, and the argument's 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 Art. 31-B, the examination by this C9urt of the questions mooted has to be on that footirlg.

That Chinese Wall of protection still leaves vulnerable chinks, according to Shri Tarkunde, and his major offensive. is based on the second proviso to Art. 31-A(l). He derives from the proviso the.reto a legislative incompetency if some mandated conditions implied therein are not fulfilled and the failure to coinply with this requirement by all three Act's 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 Arts. 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 constitutional prescriptions or prohibitions. Shri Tarkunde him'self 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 Art. 31A( 1), and in presenting a curious ceiling limit for such a 'family' regarding lands in personal cultivation. We will consider this principal argument closely.

Article 31-B reads thus :

"31-B. Validation of certain Acts and Regulations :-

Without prejudice tO the generality of the provisions contained in Article 3 lA., 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 aiiy of the rights conferred by, any provisions of this Part, and @twithstanding any judgment, 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."

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 Art. 31B.

One such infirmity, legislative incompetency, is the foundation of his argument.

Before critically appraising a contention, one must sympathise with the submission.

So we may read Art. 31 A(l) to the extent relevanl ..

"3IA. 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 extinguishment or modification _ of any such rights, or . . ·(b) te 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 manage-· ment of the property, or · ·

(c) the amalgamation of two. or_ more corporations 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 rights of shareholders thereof, or

(e) the extinguis_hment or modifications of any rightli accruing by virtue of any agreement, 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 voi°d on the ground that it is inconsistent with, or taken away or abrids any of the rights conferred by Article 14, Article 19 or Article 31; ·

Provided that where such law is a law made by the Legislature o~ 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 furt!:ter that where any law makes any. provision for the acquisition by the State of any estate and where any land comprised therein is he!d by a person under his personal cultivation, it shall not be lawful for the J)tate 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 structur~, provides for payment of compensati_on at a rate which shall not be less than the market valye 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

~:~ . .. • ...

~ ..

~ > ~

D •. G. MAHAJAN v. MAHARASHTRA (Krishna Iyer, J.) 821

by the State.

While this is permissible, notwithstanding any violat- A ion of Arts. 14, 19 and 31, the second proviso to Art. 31A(l) 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 hiS actual cultivation, the State cannot acquire any portion of such land as is within the B ceiling limit applicable to him under any law unless the law relating to the acquisition of such land provides for payment 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 Lhe ceiling limit.

To make good this part of his argument, he calls in aid c Art. 367.

That Article imports the application of the General Clauses Act, 1897, for the interpretation of the words used in the Constitution and so the expression 'person' used in Art.

31A (Second Proviso) must bear the meaning assigned to it by s. 2(12) of the General Clauses Act. Counsel states that the Acts iiiquestion define 'family' and 'family unit' in a bizarre m.anner, by providing for ceiling limit for 'family unit' incongruously with the natural D 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 ss. 4(1) and 5 of the Ma!lEl.rashtra Act and s .. 4(1) and s. 5 read with r. 5 ( 4) 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 s. 2 (12) of the General Clauses Act. By doing this, the legislature treated one person's separate E 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 .fundamental right in Part III had been flouted but because the limitation on legislative competency written into the second proviso to Art .. 31A had been breached. F

Counsel fought s_hy of reading into the Znd proiso to Art. 31A(l) a fundamtental. right. conferred on persons. holding lands below the ceiling _limit. in, person, il cultivation. '.This legalist dexterity became necessary _ l:)ecause Art. 3 LS, on its plain and plenary terms, was a sovereign remedy agaipst all abridgement of or inconsistencies with fundamental. rights under ?art III.. The sweep of this prov!sion, the G param()riilt purpose it was designed . to serve and the. amplitude of its language versus the narrowness of the construction put, the desperate interpretative crevices created, frustrative of its main object, and the reliance on the structure of Art. 13 to under'stand the anatomy of Art. 31B-this was the gut issue on which most of the debate centred.

Equally importantly, whether the prescription in he said 2n_d proviso was a guaranteed undamental r!gh.t cxpresse~ m cmpJ:atc H negative and as an exceptwn to an excteption or was it solely a hn11t11tion on legislative power without creating a corresponding right in ariy person-thi's too occupied the centre of the stage.

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 t)le setting of developing countries.

Professional innocence of current economics, anthropology and socilogy, in essentials, while rendering constitutional verdicts on developmental laws, is forensic guilt. ·

Jn State of Kerala & Anr. v. Silk Manufacturing (Wvg.) Co. Ltd. etc.(') the considerable amplitude of agrarian reform in developing countries has been explained. If India Jives 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 distrib.ution to the landless 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 proviso to Art. 31 ( 1) and decide whether the protective wings of Art. 3 lB are wide enough to take 111 tliee legislations and repel the imputed infirmity.

Art. 3 lB categorically states that none ef 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 Ill 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 shall 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 Art. 3 lB.

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 31A(l) being in Part III, Shri Tarkunde's '2nd proviso' bullet cannot bit the target.

Nor are we impressed with the cute argument that the phraseology of Art. 31B must be correlated to Art. 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 Art. 31 A(I) as conferring a fundamental righ~ on every person in personal cultivation of land below the ceiling limit. Art. 31B is an effective answer to his contention.

And so he has striven to make the H point that what the said proviso does is not to confer a right but. to clamp down a limitation on legislative competence.

The proviso, ---------·-· ------ ------

(!) [1974] I S.C.R.671.

D. G. MAHAJAN v. MAHARASHTRA (Krishna Iyer, !.) 823

according to counsel, imposes an embargo on the legislature against

e?cting for acquisition of lands . below the ceiling 'limit without prov1dmg for payment of compensat10n at a rate which shall not be less than the market value thereof.

The fallacy of this submission lies in its being !1 half-truth co?foundd for th~ . ~ole truh.

Every fundamental nght, from the view pomt of the md1v1dua1, gives a right and from the standpoint of the State, is a restraint.

Whether the manner of expressin used is in poitive tems or natively, whether the stat1;1tory_ techruque of . a pr?v1so,. sa:-m~ clause, ex.ception or explanat10n, 1s used or a dtrect mterd1ct 1s 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 ., Y. ,/ 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 le._gislative 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 b_i; singular situations where legislative incompetence may exist without a corresponding individual right but in the generality of cases it is oth"'rwise.

Jurisprudential possibilities apart, in the concrete case before us there is a cfoarly 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 Arts. 31 to 31C.

Together they are the measure 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 ,. deprivation, compulsory acquisition only on constitutional conditions, ..._ 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 patfern woven by the complex of clauses.

A great right is created in favour of owners to get compensationat 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 ri.ght and is a creature of the 2nd proviso to Art. 3 lA(l). An -independent provision may occasionally 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 iniustices which may possibly flow from them also do not arise for consideration since we have

E:.

SUPREMJr. COURT REPORTS [1977] 2 s.c.R.

taken the scope of Art. 31B 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 unorthodoxy if the target group is to be reached.

Socio-economic legislation is social realism in action, not bookish perfection, as social scientists will attest.

I hold that the Maharashtra, the Punjab and the U.P. Act8 are not unconstitutional, taking the constructive view that Art. 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.

The Nagpur Bench has spurred with counsel's many submissions 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 repeated 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 lie9 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 egaliiarian 1egi~1atiofi is '"" so much constitutional success as effective emacation.

The distance between the statute book and the landless tiller is tantalisingly long and for this implementation 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.

S.R.

Maharashtra appeals dismissed, U.P. & Punjab appeals

 allowed.