Haji Ahmad Bhat vs Shaban Ganai and another

(1) This revision petition raises an important question regarding the constitutional validity of S. 5 of the J&K Agriculturists 'Relief Act of 1953

(hereinafter referred to as the Act).

(2) The original appeal out of which the present proceedings have arisen was heard by a Division Bench consisting of Jaswant Singh and Gurtu J.

J. and on the interpretation of the language employed in S. 5 of the Act they held chat no appeal lay in suits tried under the Act which were

dismissed or where the amount decreed in favour of the plaintiff did not exceed Rs. 3000/ and the decree was passed by the SubJudge. As the

petitioners suit had been dismissed by the Sub Judge, the learned J J Consequently held that the appeal was not maintainable. The appeal was;

however, treated as a revision and the petitioner was allowed to file an amended memorandum of revision and was permitted to raise all such legal

pleas as might be available to him. This amended revision was, therefore, presented in which the vires of S, 5 of the Act was challenged and we

are now called upon to decide this point.

(3) We have heard the learned counsel for the parties and the learned Advocate General appearing on behalf of the State at length. It has

strenuously been contended on behalf of the petitioner that S. 5 of the Act is violative of Art. 14 of the Constitution of India in as much as the

impugned section causes discrimination between the same group of persons who are similarly circumstanced. On the one hand S. 5 (1).(4) of the

Act gives right of appeal to the defendant if the suit is decreed against him, but gives no such right to the plaintiff whose suit is dismissed. This

discrimination, it is submitted is arbitrary and unreasonable and violates the guarantee of equal protection of laws embodied in Article 14 of the

Constitution of India.

(4) As against this, the learned Advocate General has submitted that the Act is a piece of legislation, the object of which is to provide relief to the

class of agriculturists from indebtedness and save them from the iron grips of unscrupulous money lenders and if S. 5 denies right of appeal to the

defeated plaintiff moneylender, that should not be construed as unreasonable or arbitrary. It is important to see the object of the Act for which it

was passed Our attention is also invited to the provisions of other enactments namely the Small Causes Courts Act where appeal is provided

against the decree passed by the Judge Small Causes in a suit, but only revision is allowed to an aggrieved party. The relevant provisions dealing

with the appeals in the Small Causes court, it is argued, cannot be termed as discriminatory on the ground of unreasonableness because the Small

Causes Act is in itself a class legislation. In the same way S 5 of the Act, it is argued, cannot be said to be unconstitutional.

(5) We have given our earnest consideration to the question posed before us. It is in the first instance necessary to reproduce the impugned

Section of the Act which is as under :

(5) (1) No appeal shall lie from any decree

passed in a suit to which this Act applies, when the amount decreed exclusive of further interest allowed by the decree on such amount does not

exceed Rs. 500/and the decree is passed by the Subordinate Judge, or when such amount does not exceed one hundred rupees and the decree is

passed by a Munsiff or a Tehsildar empowered under S. 4 Sub S. (3).

Provided that nothing herein contained shall be deemed to affect the right of appeal from a decision under S. 47 of the Civil P C. directing the

arrest or detention in a civil prison of any person in execution of a decree.

[2] On appeal and one only shall lie to the Subordinate Judge from the decree passed by a Munsiff or Tehildar empowered under S. 4 (3) in a suit

to which this Act applies when the amount decreed exclusive of further interest allowed by the decree on such amount exceed one hundred rupees

but does not exceeds five hundred rupees.

Provided that nothing herein contained shall affect S. 24 of the Civil P. C.

(3) No appeal shall lie from any order passed by the court in any such suit with the exception of the order specified in clause (b) of SubS. (1) of S.

104 of the Civil

P. C.

(4) The appeal from the decree passed by the Subordinate Judge shall lie when the amount decreed exclusive of further interest allowed by the

decree on such amount exceed five hundred rupees, but does not exceed two thousand and five hundred rupees, to the District Court and when it

exceeds two thousand and five hundred rupees to the High Court.

(6) It is not disputed before us that clauses (I) to (4) of S, 5 of the Act bar the remedy of appeal to the defeated plaintiff, where his suit, no matter

what its valuation may be, is dismissed but the right of appeal is conceded (of course with in the four corners of this section) to a defendant against

whom a decree is passed. This means that if the suit of a plaintiff, say for Rs. 20,000/ is dismissed by the SubJudge, he has no right of appeal

whereas if the suit is decreed by the SubJudge and the amount decreed exceeds Rs. 500/then right of Appeal is provided to the defendant. From

this it follows that there is clear discrimination within the same group in the matter of right of appeal. It is true that the Act as a whole is a beneficial

piece of legislation and is aimed at giving relief to the poor agriculturists who are steeped in indebtedness. Such a classification of legislation cannot

be said to be unreasonable. It is an indisputable proposition that the legislature which has to deal with various problems arising out of human

conduct has the power of making laws and is competent to make selection and classification of the persons and things and has the power of

making special laws for attending the objective in view. But what is important is that the classification must be reasonable and must not be arbitrary.

It must be rational and intelligible. It has been pointed out by the Supreme Court that the classification must be founded on an intelligible differentia

which distinguish those that are grouped together from others and the said differentia must bear a rational relation to the object sought to be

achieved by the Act. But if there is anything irrational or arbitrary in the class legislation itself which offends the guarantee given in the Constitution

and that is severable from the main Act, the Court can pronounce upon its invalidity. Now the argument of the learned Advocate General that the

Small causes Court Act is also a group legislation where no right of appeal is provided to an aggrieved party and since the Small Causes Court Act

is not violative of Art. 14 of the Constitution, therefore on the same analogy S. 5 of the Act by denying the right' of appeal to the defeated plaintiff

cannot be said to be violative of Art. 14 does not appear to be sound. The argument is not tenable because under the provisions of the Small

Causes Court Act the right of appeal is denied to both the parties without any reservation whereas in S. 5 of the Act as stated above a clear

discrimination is made between the same group in the same suit and therefore this piece of legislation cannot be compared with the relevant

provisions of the Small Causes Court Act relating to appeal under the provisions of that Act. The analogy, therefore, does not hold good. Of

course if within the competence of the legislature to give a right of appeal under a statute and an appeal is indeed a creature of the statute, but the

Act cannot make a discrimination in the matter of right of appeal between the same group or class of persons placed in similar circumstances.

Furthermore, it would be seen that the Act provides a special procedure for the adjudication of the suit between a creditor and an agriculturist

debtor. The procedure provided under the Act is doubtless extremely beneficial for the agriculturist debtor. So far there would be no difficulty in

upholding the procedure laid down by the Act on the ground that it is a class legislation meant for benefiting the poor and the more economically

backward sections of the society. It will be seen, however, that ever in the procedure laid down in the suit itself, the Act does not make any

discrimination between the debtor and the creditor. This being the position, there does not appear to be any reasonable justification for making an

invidious discrimination between the creditor and the debtor in the matter of an appeal against the decision given by the trial court. The provisions

of the debtor and not to the creditor are not based on any rational or reasonable classification and we are unable to support them, particularly

when the procedure laid down in suits for both the litigants namely the debtor and the creditor is the same. This is an additional reason why S. 5

and all its subclauses are violative of Article 14 of the Constitution of India.

(7) Applying the abovementioned principals to the provisions of S, 5 it becomes clear that the impugned provisions of law offend against Article 14

of the Constitution in as much as they are unreasonable and cause discrimination between persons of the same group who are similarly

circumstanced. It does not afford equal protection of laws as guaranteed under Art. 14, In our opinion the provisions of S. 5 which are severable

from the main Act appear to be repugnant to Articles 13 and 14 of the Constitution of India and accordingly deserved to be struck down. S. 5 of

the Act, as already stated, is held to be ultra vires of the Constitution. While we struck down the section itself we are conscious of the fact that a

lacuna will remain in the Act and we accordingly leave it to the legislature of the State to incorporate the necessary provision relating to appeals in

the Act in the light of the observations made above. In view of our finding that S. 5 is ultravires and unconstitutional, it follows that there will be no

right of appeal either to the debtor or to the creditor. The present petition, therefore, being treated as a civil revision, we do not find any error of

law or jurisdiction in the order of the trial court so as to enable us to interfere in revision.

(8) For the reasons given above, the application is dismissed but in the circumstances without any order as to costs.