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AMBIKA PRASAD MISHRA ETC. v.

STATE OF U.P. AND ORS. ETC.

May 9, 1980

[Y. V. CliANDRACHUD, C.J., P. N. BHAGWATI, V. R. KRlsHNA IYBR, B

V. D. TULZAPURKAR AND A. P. SEN, JJ.]

Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960-Con.rtitutional Validity-Jlalue of stare decisi.f.-vis-a-vis judicial review.

Dismissing !he appeals and the Writ Petitions, the Court

HEID : ( 1) .-It is fundamental that the nation's Constitution is not kept in constant uncertainty by judicial review every season because it paralyses, by perennial suspense, all legislative and administrative action on vit.al issues deteind

by the brooding interest of forensic blow-up. This, if permitted, may well be a kind of judicial destabilisation of Stare action too dangerous to be indulged in save where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake, or the basic direction of th'e nation itoelf is in peril of a shake up. The decision in Kesavananda Bharati's case, therefore. upholding the vir'es of Article 3 lA in unequivocal terms binds the conrt on the simple score of stare decisi~ and the constitutional ground of Article 141 •.

Further, fatal flaws silenced by ea.rlier rulings cannot survive after d'eath because a decision does not lose its authority "merely because it was badly argu'ed, inad&- quately considered and fallaciously reasoned". And none of the..., misfortunes can be imputed to Bharati's case. [1164 C-0, 1165 C-DJ

(2). The sweep of Article 3 lA is wide and indubitably em bra= legislation on land ceilings. Equitable distribution of lands, annihilation of monopoly of ownership by imposition of oeiling and regeneration of the rural economy by diverre plaaning and strategies a.re covered by the armour of Article 3 IA.

Article 3 IA repulses, therefore, all invasions on ceiling legislation armed with Articles 14, 19 and 31. [1165 D-B, 1166 D-B]

Raniit Singh and Ors. v. State of Puniab and Ors. [1965] I S.C.R. 82, State of '- Kera/a and Anr. v. The Gwalior Rayon Silk Manufacturing (W...Wng) Co. Ltd. ' Etc. [1974) I S.C.R. 671, reiterated.

(3). The decision in Maneka Gandhfs case is no universal nostrum or curoall. Nor can it be applicable to the land reform law which is in another donmin

of comtitutional jurisprudence and quite apart from personal liberty in Article 21.

G To contend that land reform law, if unreasonable violates Article 21 as expanllYcly constnled in Maneka Gantlhf• case is incorrect. [1168 E-OJ

(4). Secti<in 5(6) of the U.P. Imposition of Ceiling on Land Holdinp Act, 1960 is fair, valid and not violative Of Article 19(1 )(f) Of the Constitution.

There is no blanket ban by it but only qnalffied invalidation of c:er!aln sinister a.ignment! etc. There is nothing in this section which is morally wrong nor la such an embargo which cilmes into force only on a well recognised date not Hfrom an arbitrarily 1etrospectiV'e past constitutionally anathematlc. Article t!l(l)(f) ;,, not aboo!ute in operation and is subject, under Article 19(6), to

reasonable restrictions such as the one contained in Section 5(6).

Furthr it is perfectly open to the legislature as anciUary 'to its main policy to prev'eiit activities which defeat the statutory purpose, to provide for invalidation of such action. \\'hen th'e alienations are invalidated because they are made after a statutory date fixed with a purpose, there is sense in this prohibition. Otherwise, all the lands would have been transferred and little would have been left by way of surplus.

[1169 AB. D, FG, 1170 C, EF]

(5). Articles 14 and 15 and the humane spirit of ttie Preamble rebel against the defacto denial of proprietory personhood or womanhood. But this legal sentiment and jural value must not run riot and destroy the provisions which do not discriminate between man and woman qua man and woman but merely organise a scheme where life realism is legislatively pragmatised. Such a scheme may marginally affect gender justice but does not abridge, wee-bit, the rights of women. If land-holding .and ceiling thereon are organised with the paramount purpose of maximising surpluses without maim; ng women's ownership, any plea of sex discrimination as a. nieans to sabotage what is socially desirable measure cannot be permitted. [1173 D-F]

From a reading of Section 3(7) read with Section 5(3) it is clear that no woman's property is taken away any more than a man's prop1erty. section 5(3) does not confer any property on an adult iOD nor withdraw any property from adult dMJghter. Legal injury can arise only if the daughtds property is taken away whil'e the son's is retained or the daughter e-ets no share while the son gets one. The \egislation has not done either. [1171 G, 1173 F, H, 1174 CD]

( 6). Section 3 ( 17) of the Act is not cli&criminatory and does not offend Articles 14 & 15 of the Constitution. True, Section 3(17) makes the husband a tenure holder even when the wife is the owner. This is a legislative device for simplifying dealings and cannot therefore be faulted.

[1174 E, FG]

(7). Neither ceiling proceeding& abate nor taking surplus land from tlte tenure holder is barred under the proviiion1 of Se<:tion 4 of the U .P. Consolidation of Holdings Act, 1953 read with Section 5(2) of the Ceiling Act. [1177 CJ

The whol'e scheme of consolidation of holdings is to restructure agrarian land-scape of U.P. so as to promote better farming and economic holdings by 'eliminating fragmentation andi organising oonsolidating, No one is deprived of his land. WMt happens i1, his •tattered bits are taken away and in lieu threof a continuous conglomeration equal in value i1 allotted subject to minimal deduction for community use and better enjoyment. Whatever land belongs to the tenure holder at the time when cons01idation proceedings are in an n-going stage, may or may not belong to him after the consolidation proce'edings a.re completed.

Alternative allotments may be made l\nd so the choice that he may make before the prescribed authority for the purpose of surrendering surplus lands and proserving 'permissible holding' may have only tentative value. But this factor doet not seriously prejudice the holder. While he chooo"es the best at the given time the Consolidation Officer will give him its equivalent when a new plot is given to him in the place of th'e old. There is no diminution in the quantum of land and quality of land since the object of consolidation is not deprivation but mere substitution of scattered pieces with a consolidated plot. The tenure holder may Well exercise his option before the prescribed officer and if, later, the Consolida tion Officer takes away these lands, he will allot a real equivalent thereof to the tenure holder el•ewher'e. There is no reduction or damage or other prejudice by this process of statutory exchange. (1177 CG]

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AMBIKA PRASAD V. U.P. STATE 1161

When land is contributed for public purposes compensation is paid in that A behalf, and in tbe event of 'illegal or unjust orders passed, appellate and revisory remedies are also provided. On such exchange or transfer taking place, pursuant to the finalisation of tbe consolidation scheme, tbe holding, upto tbe ceiling available to tbe tenure-holder, will be converted into tbe new allotment und'et' the consolidation scheme.' Thus there is no basic injustice nor gross arbitrari n'ess in tbe continuance of tbe land reforms proceedings even when oonsolidation proceedings are under way. [1178 B-D] B

Agricultural & InduStrial Syndicate Ltd. v. State of U.P. and Ors., [1974] 1 S.C.R. 253, ctistinguished .

KhatraJl"l Singh v. State of U.P .. (High Court) [1975] Recent Decisions p. 366, approved.

8. There is no time-wise arbitrariness vitiating: the statute in .that various provisions in tbe Act were bronght into force on random dates witbout any rhyme or reason, !bus violating, from tbe temporaly angle, Article 14.

It is true that neither tbe legislature nor the Government as its delegate can fix ' fanciful dates for effectuation of . provisions affecting the rights of citiz.ens.

Even so, a larger latitude is allowed to the. State to notify the date on which a particular provision may come iDlo effect.

Many impobles may weigh With the State in choosing tbe date ond when challenge ii; made years later, tbe factors which induced the choice of such dates may be buried under the debris of time. Parties cannot take advantage of tQis handicap and audaciouoly cha!· lenge every date of coming into fon:e of every provision as capriciously picted out.

[1179 B-DJ

ORIGINAL JURISDICTION : Writ Petition No. 1543 of 1977.

Under Article 32 of the Constitution of India.

WITH

W.P. No. 1542/77 and C.A. No. 1379/77, W.P. No. 838/78, 12360-2363/78 and S.L.P. (C) Nos. 1727 /79 & 2333 & 2530 of 1978.

A.ND'

S.L.P. (C) No. 2539 of 1978 and W.P. No. 22~ of 1979.

M. S. Gupta for the petitioners in WPs. 1542, 1543, 838 & CA 1379/77.

Arvind Kumar, Mrs. Lakshmi Arvind & Prakash Gupta for the G petitioners in SLPs. 1727, 2333 & 2S30.

p, R. Mridu/, R. K. Jain & Sukumar Sahu for the petitioners in WPs 2360-63.

Veda Vyasa, S. K. Gupta & A. K. Sharma for the petitioners in SLP 2599 and WP 228.

B. P. Singh Chauhan, Addi. Adv. Genl. U.P. and O. P. Rana for ff the appearing respondents. l 5-610SCT/80

A The Judgment of the Court was delivered by

KRISHNA IYER, J.-This judgment deals with a flood of cases from Cttar Pradesh relating to limitation on agricultural land holding.;, and specifically disposes of the writ petitions, civil appeals and petitfons B for special leave listed below.

The pervasive theme of this Jitigative stream is not anti-land-reform as such but the discriminatory flaws in the relevant legislation which make it 'unlaw' from the constitutional angle.

The mach of the Indian nation to the Promised Land of Social Justice is conditioned by the pace of the process of agrarian reform.

This central fact of our country's progress has made land distribution and its inalienable ally, the ceiling on land holding, the cynosure of legislative attention. And when litigative confrontation with large holders has imperilled the implementation of this vital developmental strategy, Parliament, in exercise of its constituent power, has sought to pre-empt effectively and protect impregnably such statutory measures by enacting Art. 3 lA as the very first amendment in the very .first y=

after the Constitution came into force.

Consequent on the Constitution (First Amendment) Act, 1951, this court repelled the challenges to land reform laws as violative of fundamental rights ia State of Bihar v. Kameshwar Singh(') but the constant struggle bet-

,., een agrarian reform legislation and never-say-die litigation has led to a situation where every such enactment has been inevitably accompanied by countless writ petitions assailing its vi res despite Art. 31 A, not to speak of the more extensive Chinese walls like Arts. 3 lB, 3 lC and 31D.

The forensic landscape is cluttered up in this court with appeals and writ petitions and petitions for leave to appeal, the common feature of each of which is a challenge to the validity of one or other of the State laws imposing ceiling on land holding in an inegalitarian milieu of the landed few and the landless many.

Of course, the court is bound to judge the attack on the legi91ative projects for acquisition and distri)mtion, on their constitutional 111erits and we proceed to as say the task with special reference to the Uttar Pradesh Imposition of Ceiling cn Land Holdings Act, 1960 (abbreviated hereafter as the Act). Several coun.sel have argued and plural objections have been urged but we will grapple with only those contentions which have been seriously pressed and omit others which have either been mtly formally mentioned or left to lie in silent

(I) A.LR. 1952 S.C. 252.

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peace, or but feebly articulated.

In this judgment, we side-step the bigger issue of the vires of the constitutional amendment.~ in Artie!~

31A, 31B and 3 lC as they are dealt with in other cases disposed of recently.

Indeed, the history of land reform, in its legislative dimension has been a perennial race between judicial pronouncements and constitutional amendments .

The anatomy of the Act must be scanned as a preliminary exercise so that the Constitutional infirmities alleged may be appreciated in the proper setting.

The long title gives the primary purpose of the Act as imposition of ceilings on land holdings in Uttar Pradesh and the Preamble amplifies it further.

All this is tersely pelt -out in the Statement of Objects and Reasons which runs thus :-

"With a view to provide for more equitable distribution of land by making the same available to the extent possible to landless agricultural labourers and to provide for cultivation on cooperative basis and to conserve part of the available resources in land so as to increase the production and up reserve stock of foodgrains against lean years by carrying on cultivation OIJ scientific lines in State-owned farms, it is expedient to impose ceiling on existing large land holdings.

It is necessary to provide some land to the village collllllunities for their common needs, such

a~ establishment of fuel and fodder reserves.

The Bill is therefore being introduced to promote the economic interest of the weaker section of community and to subserve the common good." Thus we get the statutory perspective of agrarian reform and so, the constitutionality of the Act has to be tested on the touchstone of Art. 3 lA which is the relevant protective armour for land reform laws.

Even here, we must state that while we do refer to the range of constitutional immunity Art. 3 lA , i:onfers on agrarian reform measures we do not rest our decision on that vrovision. 'independently of Art. 3 lA, the impugned legislation can withstand constitutional invasion and so th~ further challenge to Art. 3 lA itself is of no consequence.

The comprehensive vocabulary of that purposeful provision obviously catches within its pn;>tective net the present Act and, broadly speaking, the antiseptic effect of that Article is sufficient to immunise the Act against invalidation to the extent stated therein.

The extreme argument that Art. 31 A itself is void as violative of the basic structure of the onstitution 1)as been negatived by my learned brother, Bhagwati, J. in a kindred group of cases of Andhra Pradesh.

The amulet of Art. 31A is, therefore, potent, so far as it goes, but beyond its ambit it is still possible, as counsel have endeavoured to . ,

spin out some sound argument to nullify one section or the other.

Surely, the legislature cannot run amok in the blind belief that Art. 31A is omnipotent. We will examine the alleged infirmities in due course. It is significant that even apart from the many decisions upholding Art. 31A, Golak Nath's case(') decided by a Bench of 11 Judges, while holding that the Constitution (First Amendment) Act exceeded the constituent power still categorically declared that the said amendment and a few other like amendments would be held good based on the doctrine of prospective over-rnling.

The result, for our, purpose, is that even Golak Nath's case has held Art. 31A valid The note struck by later cases. reversing Golaknath does not militate against the vires of Art. 31A. Suffice it to say that in the Kesavananda Bharti's

case(') Article 31A was challenged as beyond the amendatory power of Parliament and, therefore, invalid.

But, after listening to the marathon erudition from eminent counsel, a 13 Judges Bench cf this Court upheld the vires of Article 3 lA in unequivocal terms.

That decision binds, on the simple score of stare decisis and the' constitutional ground of Art. 1.41. Every now discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent.

In thls view, other submissions sparkling with creative ingenuity and presented with hlgh-presswe advocacy, cannot persuade us to re-open, what was laid down for the guidance of the nation as a solemri preposion by the epic Fundamental Rights case. From Kameshwar Singh(') and Golak Nath (supra) through Kesava11anda (supra) and Kanan Devan(') to Gwalior Rayons(•) and after Art.' 31A: has stood judicial scrutiny although, as s~ earlier, we do not base the conclusion on Art. 31A. Even so, it is fundamental that the nation's Constitution is not kept in constant uncertainty by judicial review every season beciime it paralyses, by perennial suspense, all legislative and administrathe action on vital issues deterred by the brooding threat of forensic blowup. Thls, if permitted, may well be a kind of judicial destabilisatioll. of State action too dangerous to be indulged in save where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake, qr the basic direction of the nation itself is

in peril of a shakeup. It is surely wrong to prove Justice Roberts of the United States Supreme Court right when he said(6).

(1) [1967] 2 S. C. R. 762.

(2) [19731 Supp. SCR. !.

(3) AIR 1952 SC 252.

(4) Kanan Devan Hills Produce Co. Ltd. v. State of Kera/a & Anr. [1973]'

1. S.C.R., 356.

(5) Kera/av. Gwalior Rayon Silk Mfg. (W•g) Co. Ltd. etc. [1974] I SCR.

(6) Smith v. All wright 321 US 649, 669 and 670 (1944).

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"The reason for my concern is that the imtant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket good for this day and train only ...... It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thcmght and purpose, this Court which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and fiows of opinion. should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions".

It is wise to remember that fatal fiaws silenced by earlier rulings 'Cannot survive after death because a decision does not lose its authority "merely because it was badly argued, inadequately considered

and fallaciously reasoned". (1) And none of these misfo'rtunes can be imputed to Bharti:s case (supra). For these reasoos, we proceed to consider the contentions of counsel on the clear assumption that Art. 31A is good.

Its sweep is wide and indubitably embraces legislation on land ceilings.

Long years ago, in , Ranjh v. State,(') a Constitution Bench, speaking through Hidayatullall, J., dwelt oa the wide amplitude of Art. 3 lA, referred to Precedents of this Court on agrarian reform vis a vis Art. 3 lA and concluded that equitable clistribution of lands, annihilatign of monopoly of ownership by imposition of ceiling and regeneration of the rural economy by diverse

planning and strategies are covered by the armour of Art. 3 lA. We may qnote a part :

The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few on the other, but envisages also the raising of econ<>- mic standards and bettering rural health and social conditions. Provisions for the assignment of lands to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, talll!ing grounds etc. which

(sic) enure for the benefit of rural population must be considered to be an essential part of the redistribution of holdings , and open lands to which no objection is apparently taken. If agrarian reforms are to succeed, more distribu-

(1) Salmond 'Jurisprudence' p. 21S(llth edition).

(2) (1965]1 SCR 82.

tion of lands to the landless is not enough. There must be a proper planning of rural economy and conditions and a body like the village: panchayat is best designed to promote rural welfare than, individual owners of small portions of lands.

Further the village panch:ayat is an authority for purposes of part Ill as was conceded before us and it has the protection of Art. 31 A because of this character even if the taking over of Sham/at deb amounts to acquisition . . . . . . . The setting of a body or agricultural artisans (such as the village caJ11"lller, the village blacksmith, the village tanner, ferrier, wheelwright, barber, washerman etc.) is a part of rural planning and can be comprehended in a scheme of agrarian reforms. It is a trite saying that India lives in villages and a scheme to make villages self-sufficient cannot but be regarded as part of the larger reforms which consolidation of hpldings, fixing of ceiling on lands, distribution of surplus lands and utilising of vacant and waste lands contemplate.(')

This review has been reinforced by the later pronouncement of a Constitution Bench in the Gwalior Rayon Case,(') emphatically expressing support for the conceptual sweep of agrarian reform vis-a-vis Art. 3 lA. e proposition, therefore, is invuln:erable that Art. 31A repulses all invasion on "ceiling legislation" (armed with Arts. 14, 19 and 31).

The professed goal of the legislation is to maximise surplus lands for working out distributive justice and rural dev<llopment, with special reference to giving full opportunity to the agrarian masses to become a major rural resource of the nation.

How to maximise surplus land ? By imposition of severe ceiling on ownership of land holdings consistently with the pragmatics of rural economies and the people's way of life.

The pervasive, pivotal concepts are, therefore, ceilings on holdings and surrender of surplus land. The working unit with reference to which the legal ceiling is set is the realistic family.

So, the flexible concept of 'family' also becomes a central object of legislative definition.

Having regard to the diversity of famlly uniffi among the various communities making np Indian society and having the object of the legislation as the guiding principle, the statute under consideration has given a viable aod realistic definition of 'family', with provision for some variables and special situations. The machinery for implementing the statute is also set up with adjudicative powers, including appeals. Compensation, . with-

(!) [1965] 1 SCR 82 at 94-95.

(2) [1974] 1 SCR 671.

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out invidious discrimination, has to be paid, according to the scheme, when surplus land is taken away and for the 'determination aud payment of such compensation a whole chapter is devoted.

The disposal of land secured as surplus is, perhaps, the elimination of the legislatiye project, and so, Chapter 4 stipulates the manner of . disposal and settlement of surplus land.

Thus, we have the definitional provision in Chapter 1, followed by imposition of "ceilings" with ancillary provisions for exemption.

The judicial machinery for enforcement and the provisions for pre-emption of manipulation and prevention of fraud ou the statute, the assessment of compensation and its payment and the like have also been enacted in Chapters 2 and 3.

A miscellaneous chapter deals with a variety of factors, including offences and penalties, mode of hearing and appellate -powers

and kindred matters.

Inevitably, . such a progressive legislation runs drastically contrary to the feudal ethos of the landed gentry and the investment intancts of the nouveau riche and green revolutionisl!l.

Therefore, the holders who are hurt by the provisions of the Act have chosen to chatlenge their vires and they must succeed if the ground is good.

Since the legislature has plenary power to the extent conferred by the Constitution, the attack has to be based, and, indeed has been, on constitutional infirmities which if sound, must shoot down the Act. By way of aside, one might query whether agrarian reform, with all the fanfare and trumpet, has seriously taken off the ground or is still in the hangar? Any way, the court can only pronounce, the Executive must execute.

We will now proceed to formulate the points which, according to counsel, are fatal to the legislation and proceed to scan them in due course.

Various miniscuie matters have been raised in the plethora of cases largely founded on some real or fancied inequity, inequality, legislative arbitrariness or sense of injustice.

Speaking generally and with a view to set the record straight, injustice is conditioned by the governing social philosophy, the prevailing economic approach 'and, paramountly, by the constitutional parameters which bind the court and the community.

The Indian Constitution is a radical document, a charter or sociopolitico-economic change and geared to goals spelt out in the Objectives Resolution which commits the nation to a drive towards an egalitarian society, a note struck more articulately by the adjective 'socialis!' to our Republic introduced by a recent Amendment and .survives after Parliament, differently composed, had altered the 42nd Amendment.

This backdrop suggests that agrarian legislation, organised as egalitarian therapy, must be judged, not meticulously for every in dividual injury but by the larger standards of abolition of fundamental in equalities, frustration of basis social fairness and shocking unconscionableness.

This process involves detriment to vested interests.

The perfect art of plucking the goose with the least squealing is not a human gift.

A social surgery, supervised by law, miniinisi:s, not eliminates, . individual hurt while promoting community welfare.

The court, in its interpretative role, can neither be pachydermic nor hyperreactive when landholders, here and there lament about lost land.

We wiill examine the contentions form this perspective, without reference to Arts. 3 lB, C and D. Justice Cardozo has a messe for us when he says:(')

Law and obedience to law are facts confirmed everyday to us all in our experience of life. If the result of a definition is to make them seem to be illusions, so much the worse for the definition; we must enlarge it till it is broad enough to answer to realities.

D Shri Mridul, who led the arguments, mounted a three-point attack.

Article 3lA(l)(ii) was the target of an obscure submission which counsel, with characteristic fairness, did not press at a later stage.

Linked up with it was queer nexus between Art. 21 and the right to property, deprivation of which was contended to be an unreasonable procedure somehow falling within the lethal spell of Art. 21.

Proprietary personality was integral to personal liberty and a mayhem inflicted on a man's property was an amputation of his personal liberty. Therefore, land reform law, if unreasonable, violates Art. 21 as expansively construed in Maneka Gandhi. (2 ) The -Oichotomy between personal liberty, in Art. 21, and proprietary status, in Arts. 31 and 19 is plain, whatever philosophical justification or pragmatic realisation it may possess in political or juristic theory.

Maybe, a penniless proletarian, rs unfree in his movements and has nothing to lose except his chains. But we are in another domain of constitutional the jurisprudence.

Of course, counsel's resort to Art. 21 is prompted by the absence of mention of Art. 21 in Art. 31A and the illusory hope of inflating Maneka Gandhi to impart a healing touch to those whose property is taken by feigning loss of personal liberty when the

State takes only property. Maneka Gandhi is no universal nostrum or cure.-all, when all other arguments fail !

The last point which had a quaint moral flavour was that transfers H of landed property, although executed after th.e dates specified in the

(!) Cardozo Selected Writing p. 159.

(2) Maneka Gandhi v. Union of India. [1979] IS. C.C. 249,

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Act were un-reasonably invalidated by the Act even when there was no "mens re<i' vis a vis the ceiling law on the part of. the transferor and this was violative of Art. 19 (1) ( f) and of Art. 14 as arbitrary.

A facet of over-inclusiveness which breaches Art. 14 was also urged. It is perfectly open to the legislature, as ancillary to its main policy to prt>- vent activities which defeat the statutory purpose, to provide for invalidation of such actions.

When the alienations are invalidated because they are made after a statutory date. fixed with a purpose, there is sense in this prohibition.

Otherwise, all the Jaruis would have been transferred ancl little would have been left by way of surplus.

Let us read the text of s.5 ( 6) which is alleged to be bad ing overinclusive or otherwise anomalous.

The argument, rather hard to follow and too subtle for the pragmatic of. agrarian law, may be clearer when the provision is unfurled.

Section 5 ( 6) runs thus:

Tu determining the ceiling area applicable to a tenure-- holder, any transfer of land made after the twenty-fourth

day of January, 1971, which but for the transfer would have D been declared surplus land under this Act, shall be ignored and not taken into account :

Provided that nothing in this sub-section shall apply to :

(a) a transfer in favour of any person(including Government) referred to in sub-section(2);

(b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a beiiami transaction or for immediate or deferred benefit of the tenure-holder or other mem- . bers of the family.

There is no blanket ban here but only qualified invalidation of certain sinister assignments etc. Counsel weaves gossamer webs which

break on mere judicial touch when he argues that transfer 'in good

faith and for adequate consideration' have been unconstitutionally ex- G empted.

The bizarre submission is that 'adequate consideration' is an arl!itrary test.

We reject it without more discussion. . The second limb of the submission is that while s. (6) ilirects the authority to ignore certain transfers it does not void it. The further spin-off adroitly presented by counsel is that the provision violates the second

proviso to Art. 31. It is a little too baffling to follow and we dis- H

iss the submislrlon as hollow.

The provision in s.5 ( 6), when read Jn the light of the Provisos, is fair and valid ..

A Couusel's further argument is to quote his own words that "the

impugned provisions do not establish a reasonable procedure" because:

"The expression 'in good faith' is over-inclusive and takes within its sweep situations which are not only very different but which may not have any nexus or legitimate relationship with the objects and purposes of the ceiling law ..... "

We are hardly impressed by it and find no substance on it.

There is no question of morality or constitutionality even if the clause may be a little over-drawn.

On the contrary, it is legislative folly not to preserve, by appropriate preventives and enacted contraceptives, the 'surplus' reservoir of land without seepage or spill-over.

It is legal engineering, not moral abandonment.

Indeed, the higher morality or social legitimacy of the law requires a wise legislature to prescribe transfers, lest the surplus pool be drained off by a rush of transactions.

Maybe, individual hardship may happen, very sad in some instances. But every great cause claims human martyrs ! Poor consolation for the victim but yet a necessary step if the large owners are not to play the vanishing trick or resort to manipulated alienations ! After all, this ban comes into force only on a well-recognised date, not from an arbitrary retro-active past.

We cannot discover anything which is morally wrong or constitutionally anathematic in such an embargo.

Article 19(1) (f) is not absolute in operation and is subject, under Art.19(6), to reasonable restrictions such as the one contained in s.5 ( 6). We do not th.ink there is merit in the triple submissions spun by Shri Mridul.

Even on the merits, the transfers have been right! y ignored, the vendees who are the grandsons have been held to be not bona fide transferees for adequate consideration; and the findings are of fact and concurrent.

We over-rule the grounds of grievance as unsustainable.

In sum, without reliance on Art. 31A, Shri Mridul's contention• can G be dismissed as without merit.

We will now consider the mini-arguments of the other counselsome of them do merit serious consideration by the court - and even where direct relief does not flow from the judicial process, State action to avoid anomalies may well be called for in the light of genuine H hardships.

Shri Veda Vyas, appearing in W.P. No. 228 of 1979 and SLP No. 2599 of 1978, pleaded powerfully for gender justice and sex

equity because, according to his reading, the Act had a built-in masculine bias in the definition of 'family unit' and allocation of ceiling on holdings, and therefore, perpetrated unconstitutional discrimination.

Indeed, his case illU.Strated the anti-woman stance of the statute, he claimed.

The submission is simple, the inference is inevitable but the invalidati6n does not follow even if Art. 31A is not pressed into service to silence Art. 14.

We will formulate the objections and examine their merits from the constitutional perspective.

Maybe, there is force in the broad generalisation that, notwithstanding all the boasts about the legendary glory of Indian womanhood in the days of yore and' the equal status and even martial valour of heroines in Indian history, our culture has sufiered a traumatic distortion, not merely due to feudalism and medievalism, but also due to British imperialism.

Indeed, the Freedom Struggle Jed by Mahatma Gandhi, the story of social reforms inspired by spiritual leaders like Swami Vivekananda and engineered by a galaxy of great Indians like Raja Rammohan Roy, Swami Dayainanda Saraswati and Maharishi Karve and the brave chapter of participation in the Independence Movement by hundreds and thousands of womanpatriots who flung aside their unrree status and rose in revolt to overthrow the foreign yoke, brought back to Indian womanhood its lustrous status of equal partnership with Imjian manhood when the

country decided to shape its destiny and enacted a Constitutioo in that behalf. Our legal culture and Corpus juris, partly a heritage of the past, do contain strands of discriminatiou to set right which a oommissiou elaborately conducted enquiries and made a valuable report to the Central Government. Shri Veda Vyas may lie right in making sweeping submissions only to this limited extent but when we reach the concrete statutory situation and tackle the specific provisions in the Act, his argumen~ misses the mark.

A better appreciation of his contenti.on must be preceded by excerption of two definitions and consideration of the concepts they embody.

Section 3(7) defines 'family' thus :

'family' in relation to a tenure-holder, means himself or herself and his wife or her husband, as the case may be (other than a judicially separated wife or husband), minor sons and minor daughters (other than married daughters J ;

This.definition is incomplete without contextually readings. 5(3) and

so we quote the provision which, in the view of Shri Veda Vyas, R enwombs the vice of discrimination against women.

Sec.5(3) (a) &

(b) & Explanation :

Sec. 5 (3) : Subject to the provisions of sub-sections ( 4), (5)" (6) and (7) the ceiling area for purposes of subsection (1 ) shall be

(a) In the case of a tenure-holder having a family of not more than five members, 7.30 hectares of irrigated land (including land held by other members of his family) plus two additional hectares of irrigated land or such additional land which together with the land held by him aggregates to two hectares, for each of bis adult sons, who are either not themselves tenure holders or who hold less than two hectares of iirigated land, subject to a maximum of six hectares of such additional land;

(b) in the case of a tenure-holder having family of more than five members, 7 .30 hectares of irrigated land (including land held by other members of bis family) , besides, each of the members exceeding five and for each of his adult sons who are not themselves tenureholders or who held less than two hectares of irrigated land, two additional hectares of irrigated land, or such additional land which together with, the land held by such adult son aggregates to two he<; tare~. subject to a maximum of six hectares of such additional land.

Explanation : The expression 'adult son' in clause (a) and (b) includes au adult sou who is dead and has left surviving behind him minor sons or miuor daughters

(other than married daughters) who are not themselves tenure holders or who hold land less than two hectares of irrigated land;

The anti-female kink is patent in that the very definition of family discloses prejudice against the weaker sex by excluding adult daughters without providing for any addition to the ceiling on their account. In G the case of an adult son, s. 5(3)(a) of the Act provides for the addition of two hectares of irrigated land for each of his (tenure holder's) sons where the family has a strength of less than five. Section 5(3)(b) similarly provides for two additional hectares of irrigated land for each of his (tenure holder's) adult sons where the strength of the family is more tha.n 5. It must be remembered that this addition is H on account of the fact that there are adult sons, even though they are not tenure holders or held less than two hectares or none.

This Fevilege of adding to the total extent that the family of a tenure

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AMBIKA PRASAD v. U.P. STATE (KriShna Iyer,!.) 1173

hoilder may keep is denied to an adult daughter, even though unmarried, A and, therefore, dependent on the family for that a married son stands . on a different footing from a married daughter, what justice is there in baring a dependent unmarried daughter in the cold? Assuming without admitting, Shri Veda Vyas further urges that having regard to the Child Marriage Restraint Act, 1929 and the increasing prevalence of unmarried adult daughters in families these days, the discrim, ination B. is not theoretical but real because no minor girl can now. marry.

Another similar invidious provision is the definition of tenure-- holder. Ceiling on heldings is fixed with reference to tenure-holders.

We wonder whether the Commission on the Status of Women or the Central Government or the State Governments have considered this aspect of sex discrimination in most land reforms laws, but undoubtedly the State should be fair especially to the weaker sex. Adult damsels should not be left in distress by progressive legislations geared

to land reforms. This criticism may have bearing on the ethos of the community and the attitude of the legislators, but we are concerned with the constitutionality of the provision. Maybe, in this age of nuclear families and sex equal human rights it is illiberal and contrary to tbe zeit geist to hark back to history's dark pages nostalgically and disguise it as the Indian way of life with a view to deprive Wl:mlen of their undeniable half.

Arts. 14 and 15 and the humane spirit of the Preamble rebel against the de facto denial of proprietary personhOOd of woman-hood.

But this legal sentiment and jural value must not run riot and destroy provisions which do not discriminate between

miln and woman qua man and woman but merely organise a scheme where life's realism is legislatively pragmatised. Such a scheme may marginally ; Ufect gender justice but does not abridge, even a wee-bit, the rights of women. If land-holding and ceiling thereon are organised with the paramount purpose of maximising surpluses without maiming woman's ownership no submission to destroy this measure can be permitted using sex discrimination as a means to sabotage what is socially desirable. No woman's property is taken away any more than a man's property.

Section 5 (3) reduces daughters or wives to the status of stooges.

It forbids excessive holdings having regard to rural realities of agricultural life. 'Family' is defined because it is taken as the unit for holding land-a fact of extant societal life which cannot be wished away. This is only a tool of social engineering in working out the scheme of setting limits to ownership. Section 5 (3) does not confer any property on an adult son nor withdraw any property from an adult daughter. That ' provision shows a concession to a tenure-holder who has propertyless

adult sons by allowing him to keep two more hectares per such son.

The propertyless son gets no right to a cent of land on this score but the father is permitted to keep some more of his own for feeding this extra mouth. If an unmarried daughter has her own land, this legislation does not deprive her any more than a similarly situated unmarried son. Both are regarded as tenure-holders. The singular grievance of a chronic spinster vis a vis a similar bachelor may be that the father is allowed by s. 5 ( 3) to hold an extra two hectares only if the unmarried major is a :iOn.

Neither the daughter nor the son gets any land iu consequence and a normal parent will 109k after an unmarried daughter with an equal eye.

Legal injury can arise only if the daughter's property is taken away while the son's is retained or the daughter gets no share while the son gets one.

The legislation has not done either.

So, no tangible discrimination can be spun out.

Maybe, the legislature could have allowed the tenure-holder to keep another two hectares of his on the basis of the existence of an unmarried adnlt daughter. It may have grounds rooted in rural realities to do so. The court may sympathise but cannot dictate that.the land-holder may keep more land because he has adult nnmarried daughters. That would be judicial legislation beyond permissible process.

The same perspicacious analysis salvages, the provision regarding a wife.

True, s. 3(17) makes the husband tenure-holder even when the wife is the owner. So long as the land is within the sanctioned limit it is retained as before without affecting ownership or enjoyment.

But where it is in excess, the compensation for the wife's land, if taken away as surplus, is paid to her under Chapter III. And even in the choice of land, to declare surplus, the law, in s. 12A, has taken meticulous care to protect the wife. The husband being treated as tenureholder even when the wife is the owner is a legislative device for simplifying procedural dealings. When all is said and done, married woman in our villages do need their husband's services and speak through them in public piaces, except, hopefully in the secret ballot expressing their independent political choice. Some of us may not be happy with the masculine flavour of this law but it is difficult to hold that rights of women are unequally treated, and so, the war for equal gender status has to be waged elsewhere; Ideologically speaking, the legal system, true to the spirit of the Preamble and Art. 14, must entitle the Indian women to be equal in dignity, property and personality, with man. It is wrong if the land reforms law denudes woman of her property. If such be the provision, it may be unconstitutional because we cannot expect that "home is the girl's prison and the woman's work-house" But it is not.

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It must be said in fairness, that the legislature must act on hard A realities, not on glittering ideals which fail to work.

Nor can large land-holders be allowed to outwit socially imperative land distn'bution by putting female discrimination as a mask.

There is no merit in these submit; sions of Sri Veda Vyas.

In the view we have taken, we need not discuss the soundnus of B the reasoning in the ntling in Sucha Singh v. State(').

The High Court was right, if we may say so with respect, in its justification of the section when it observed:

The subject of legislation is the person owning or holding land and not his or her children. c

Secti0n 5 provides for the measure of permissible are~ that a person with one or more adult sons will be allowed to select out of the area owned or held by him and his children, whether male or female, have not ooen given any right to make a selection for himself or herself. It cannot, therefore, be said that this section makes a discrimination between a son and a daughter in respect of his or her permissible area on the ground of sex alone, The legislature is the best Judge to decide how much area should be left as permissible area with each owner or holder of land.

Insofar as no distinction between a male and a female holder or owner of the land has been made in respect of the permiss; bJe 11rea in any given circumstances, there is no violation of Article 15 of the Constitution.

This section doe. not provide for any uccession to the land; it only providu for the measure of the permissible area to be retained by every holder or owner of the land out of the area held or owned by him or her on the appointed day on the basil; of the number of adult sons he or she has.

It is for the leg; slature to prescribe the measure of permissi6le area and no exception can be taken because only adult sons have been taken into consideration.

Shri Veda Vyas objected to the further observations of Tuli J. ' It is evident that distinction between an adult son and an adult daughter has been made not only on the ground of sex but also for the reason that a daughter has to go to another family after her marriage in due course, marrillge being a normal custom which rs universally practised.

This

(l)"Sucha s; ngh v. Stat• AIR 1974, P. & H. 162 at 171

A is an institution of general prevalence which is the foundation

of organised and civilised societies and communities.

Our rapidly changing times, when women after long domestic

ervitude, seek self-expression, cannot forge new legal disabilities and call it legislative wisdom.

But, without assent or dissent, we may pass by these observations because no property right of women is taken away, and discrimination, if any, is not il)fiited on rights, but sentiments.

Shri Arvind Kumar, who followe<l, also made some persuasive points and seeming dents in the legislation when read in the light of the U.P. Consolidation of Holdings Act, 1953 ·

(hereinafter called the Consolidation Act) . In general terms, the submission turned on the operation of the law relating to consolidation of holdings.

It is a great pity that a benign agrarian concept-abolition of fragmentation and promotion of consolidation of agricultural holdingshas proved in practice to be a litigative treachery and opene<l up other vices.

The provision for appeals and revisions and the inevitable temptation of the vanquishe<l to invoke Art. 226 and Art. 136 qf the Constitution has paved the protracted way for improvident lay-out on speculative litigation.

More farmers are cultivating litigation than land, thanks to the multi-docket procedure in the concerned law. Even so, we ree no force in counsel's contention which we may now state.

The thrust of his argument, omitting subsidiary submissions which we will take up presently, is that so long as consolidation proceedings under the sister statute (U.P. Consolidation of Holdings Act, 1953) are under way, two consequences follow.

Firstly, all other legal proceedings including the ceiling proceedings must abate.

A notification under 5- 4 of the . Consolidation Act has been issued in regard to many areas in the State.

Consolidation has been completed in most places but is still pending in some places. Counsel's argument is that once a notification under s. 4 has been issued, s. 5(2) (a) operates.

This latter provision states that

every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land laying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference of revision, shall, on an order being passed in that

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AMBIKA PRASAD v. U.P. STAIE (KriShna.Iyer, J.) 1177

behalf by the court or authority before whom such suit or proceediug is pending, stand abated; Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard : Provided further that on the issue of a notification under sup-section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part as the case may be, shall stand vacated;

Thus the ceiling proceeding has abated and surplus land cannot be taken from him.

This plea has only meretritions attractioD1 and superficial plausibility as we will presently see.

The whole scheme of consolidation of holding is to restructure agrarian landscape of U.P. so as to promote better farming-and economic holdings by eliminating fragmentation and organising consolidation.

No one is deprived of his land. What happens is, his scattered bits are taken away and 'm lieu thereof a continuous conglomeration equal in value is allotted subject to minimal deduction for community use and better enjoyment.

Once this central idea is grasped, the grievance voiced by the petitioner becomes chimerical. Counsel complains that the tenure-holder will not be able to choose his land when consolidation proceedings are in an on-going stage. True, whatever land belongs to him at that time, may or may not 00- . long to him after the consolidation proceedings are completed.

Alternative allotments may be made and so the choice that he may make before the prescribed authority for the purpose of surrendering surplus lands and preserving 'permissible holding' may - have only tentative value.

But this factor does not seriously prejudice the holder.

Willie he chooses the best at the given time the Consolidation Officer will give him its equivalent when a new plot is given to him in the place of the old.

There is no diminution in the quantum of land and quality of land since the object of consolidation is not deprivation but mere. substitution of scattered pieces with a consolidated plot.

The tenure-holder may well exercise his option before the prescribed officer and if, later, the Consolidation Officer takes away these lands, he will allot a real equivalent thereof to the tenureholder elsewhere. There is no reduction or damage or other prejudice by this process of statutory exchange.

Chapter ID of the Consolidat, iou Act provides, in great detail, for Br equity and equality, compensation and other benefits when finalising the consolidation scheme. Section 19 (I) (b) ensure th1t

lt>-610 SCl/80

"the valuation of plots allotted to a tenure-holder subject to deductions, if any, made on account of contributions to public purposes under this Act is equal to the valuation of plots originally held by him.

Provided that, except with the permission of the Director of Consolidation, the area of the holding or holdings allotted to a tenure-holder shall not differ from the area of his original holding or holdings by more then twenty five per cent of the latter."

When land is contributed for public purposes compensation is paid in that behalf, and in the event of illegal or unjust orders passed, appellate and revisory remedies are also provided. On such exchange or transfer taking place, pursuant to the finalisation of the consolidation scheme, the holding, upto the ceiling available to the tenureholder, will he converted into the new allotment under the consolidation scheme.

Thus, we see no basis injustice nor gross arbitrariness in the continuance of the land reforms proceedings even when consolidation proceedings are under way. . We are not all impressed with counsel's citation of the rnling in Agricultural & Industrial Syndicate Ltd. v. State of UP and Others,('), particularly because there has been a significant amendme'nt to s. 5 subsequent thereto. The law as it stood then was laid down by this Court in the above case;. but precisely because of that decision an explanation has been added to s. 5 of the Consolidation Act which reads thus :

Explanation:- For the purposes of subsection(2) a proceeding under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 or an uncontested proceeding under Sections 134 to 137 of the U.P. Zamindari . Abohtion and Land Reforms Act, 195(}, shall not be deemed to be a proceeding in respect of declaration of rights or interest, in any land. -

The view of, the Allahabad High Court in Kshetrapal Singh v. State of U.P.( 2 ) (H.C.) is correct, and in effect negatives the submission of Shri Arvind Kumar that there should be a stay of ceiling proceedings pending completion of consolidation proceedings.

The head note in Kshetrc1pal Singh's case (Supra) brings out the ratio and for brevity's sake, we quote it;

By adding the Explanation after sub-section(2) of Sec- tion 5 of the Act a legal fiction has been created. What is

(1) [1974] I S. C. R. 253,

(2) [1975] R. D. 366.

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-Otherwise a proceeding in respect of declaration of rights or interest in any land is deemed not to be such a proceeding.

That is the clear legislative intent behind the Explanation.

Ordinarily an Explanation is intended to explain the scope of the main section and is not expected to enlarge or narrow down its scope but where the legislative intent clearly and unambiguously indicates an intention to do so, effect must be given to ihe legislative intent notwithstanding the fact that the legislature named that provision as an Explanation.

A feeble submission was made that there was time-wise arbitra- riness vitiating the statute in that various provisions in the Act

.~ were brought into force on random dates without any rhyme or reason, thus violating, from the temporaly angle, Art. 14. It is true that neither the legislature nor the Government as its delegate can fix fanciiul dates for effectuation of provisions affecting the rights of citizens.

Even so, a larger latitude is allowed to the State to notify the date on which a particular provision may come into effect. Many imponderables may weigh with the State in choosing the date and when challenge is made years later, the factors which induced the choice of such dates may be buried under the debris of time.

Parties cannot take advantage of this handicap and aucfacionsl y challenge every date of coming into force of every provision as .capriciously picked ant. In the present case, s.6(1) (g) has been

"T' brought into force on 8.6.73, s.6(3) on 10.10.75, s.3(4) on 15.8.72, s.16 on 1.7.73 and s.(1) (e) on 24.1.71. This last date which was perhaps the one which gave the learned Advocate General some

puzzlement was chosen because on that date the election manifesto of the o; ngress Party in all the States announced a revised agrarian policy and that party was in power at the Union level , and in most of the States. Although a mere election manifesto \ cannot be the basis for fixation of a date, here the significance . is deeper in that it was virtually the announcement of the political government of its pledge to the people that the agrarian polil:y would be revised accordingly.

The other dates mentioned above do not create any problem being rationally related to the daie of a preceding ordinance or the date of introduction of the bill.

The details are not necessary except to encumber this judgment. f.--f We would emphasise that the brief of the State when meeting' constitutional challenges on the ground of arbitrariness must be a complete coverage, including an explanation for the date of enforcement of the provision impugned.

Court and counsel call'llot dig up materials to explain fossil dates when long years later an enterprising litigant chooses to challenge.

1180 .5lJPREME COURT REPORTS

[1980] 3 S.C.R ..

A few other minor infirmities' were faintly mentioned but not argued at all or seriously, such as, for instance, the contention that s. 38B of the Act which understandably excludes res judicata is challenged as violative of the basis structure of the Constitution and otherwise exceeds legislative competence.

We do not think there is need to. dilate on every little point articulated by one or other of the numerous advocates who justify their writ petitions or civil appeals by formal expression of futile submissions.

We dismiss all the appeals and all the writ petitions and all the special leave petitions with costs one set in al! the cases together which we quantify as Rs. 5,000/-.

S.R.

Appeals and Petitions dismissed_

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