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Judgment
Manisana, J.—In this petition, the Petitioners have challenged the constitutional validity of Section 2 to 7 of the Meghalaya Removal of Restrictions on Use and Enjoyment of Land Act, 1980 (Act 11 1981), for short, the "Act". The Act was extended to the who State of Meghalaya and came into force on June 1st. 1981.
Facts.--The Petitioner-1 is wife of the Petitioner-2, is the Honorary Secretary of the Association of the Land Owners of Khasi Hills known as "Ka Synjuk Lana Trai Khyndew (sic) Ri Khasi". The Petitioner-1 belongs to the Piperope clan of Khasi Hills Meghalaya. The clan own vast tracts of land in Umpling village Hills. The lands owned by the clan are known as "ri Kynti lands as distinguished from "raj lands" and "community lands". As there were difference as to the mode of enjoyment of lands among the members of the clan, a family settlement was made on 30.7.39. Annexure-A to the petition Any member of the clan, whom land and houses was allocated pursuant to the family Settlement, can dispose of his allocated share by way of sale, lease and mortgage. The Khasis are matriachal society, Under the custom prevailing in the Khasi Society, the Petitioner-1 being the "Ka Khadduh" is the custodian of the properties of the clan and is responsible for the performance of religious rites arid ceremonies, etc. Some of the "ri kynti'' lands are leased out under the terms and conditions except the lands or marked for cultivation for numbers of the clan. Such a lease is popularly known as the "patta system". Under the ''patta system'', the right of ownership over the ancestressal landed properties is retained order to perpetuate the memory of the elders who have bestowed on them wealth in the shape of landed properties. Although the deeds of lease are styled as deeds of sale, the transactions are not absolute sale and certain terms and conditions are specifically incorporated in the pattas. However, under certain special circumstances transfer of ''ri Kynti'' land can be sold transferring the absolute ownership of the land.
Before dealing with the substantive argument, it may be noted that it is settled that presumption of constitutionally exist in favour the Act and as such burden lies on the Petitioner challenging the Act to prove otherwise. Therefore a petition challenging the constitution validity of certain provisions must be in the context of certain facts and not in subtract or vacuum. There must be in the petition the essential facts which are necessary fur the examination of the validity of the Act, The right that could be enforced under Article 226 must ordinarily be the right of the Petitioner himself who complains of information of such a, right, Therefore, in order to redress a wrong done a person, the action should prima facie be brought by himself. This log the position, the proper subject of the investigation would be bat right, if any, of the Petitioner.
In the present case, it is not state J specifically in the petition that, in case of sale of ''ri kynti'' lands conditions and restrictions can be imposed on the buyer regarding enjoyment or disposal of land. However, in para 11 of the petition, as a ground, it is stated that the Act has prohibited transfer of ''ri kynti'' lands by way of sale, mortgage or lease and has totally prohibited owners of ''ri kyoti'' lands "to put any conditions on the buyer regarding enjoyment or disposal of the land or any other restrictions or conditions which were prevalent since time immemorial in Khasi Society allowed to retain the Khasi customary rights inclusive of the law of inheritance'' But, in the petition, the Petitioners admit that in certain special circumstances ''ri koyti'' lands can be sold absolutely without any restriction, As regards ''salami'', the Petitioner have not stated that any land owner received payment of consideration as ''salami'', The Annexure-B and C to the petition are the copies, of the sale deeds which are alleged to be in vogue. The sale deeds are deeds of absolute sale. There is no restriction imposed on the buyer regarding enjoyment, disposal of the land or ''salami''. Annexure-D to the petition is a letter dated 25.12.60 written by Respondent 1 to the Commandant, 2nd Bn Shillong station "Sales are affected either by (a) on lease system or (b) out-right purchase. The letter further indicate that in the case of outright sale the owner leases all the proprietary right over the land and the question of issue of patta rent and patta renewal fees do not arise, but in case of lease, patta it issued by the lessor in terms of the agreement between the lessor and lessee fixing the annual rent and patta renewal fees and transfer of land to other is to be effected with the knowledge and consent of the land owner Annexure-D is only a letter. There is nothing on record to show that parties have acted on it, and that the Act has affected a sale. In such a situation there is no material on record to show that the Act has infringed the right to sell land of the Petitioners. The Petitioner have not also allowed in the petition or produced any materials to show that there are sales made by the Petitioner-1 imposing restriction or condition on the buyers regarding enjoyment or disposal of land and these soles have been interfered with by Section 4. In such a situation we are of the view that the Petitioner have filed this petition without essential facts necessary to examine validity of Sections 2 to 7. Therefore, facts in the present petition seem a little abstract. For these reasons, petition is liable to be dismissed. It may be noted here that we should not be presumed to have expressed our opinion about the existence of the custom relation to right of ''ka Kbadduh, ''ri kynti'' lands and existence of any custom alleged in the petition.
Coming now to the merits of the case, the main around urged by the learned Counsel for the Petitioners is that the pith and substance of the Act amounts to deprivation of property of the landowner in violation of Article 300A of the Constitution of India and the restriction constitute an unsustainable interference with the right to sale property and as such Section 2 to 7 of the Act are void under Article 14 of the Constitution and customary law of the Khasis.
The first contention of the learned Counsel fur the Petitioners that Section 4 is volatile of Article 300A of the Constitution as the landowner is deprived of his property without authority of law.
Article 300A runs as follows:
No person shall be deprived of his property save by authority of law.
The word "law" to the context of Article 300-A must be an of the Parliament or of a State Legislature, a rule or a statutory having the force of law, that is positive law or State made law see Bishambhar Dayal Chandra Mohan and Others Vs. State of Uttar Pradesh and Others, The deprivation of property means the taking of the entire collected of rights possessed by the holder to use and enjoy the property completely excluding him from possessing a part or an item of the collected bundle of rights. Deprivation of property is to be distinguished from the restriction of the fight following from ownership.
Section 4 of the Act provides:
Notwithstanding anything to the contrary in any contract, custom, usage or practice when a person Who has acquired a permanent, (sic) and transferable right of use, occupation or enjoyment in any land be purchase or otherwise sells his land, it shall not be lawful for him or the landlord to impose any restriction or condition on the buyer regarding enjoyment or disposal of the land and such restriction or condition shall be void.
A plain reading of Section 4 makes it clear that it relates to the sale only and that property of any person Is not deprived of i.e. all be collected bundle of the rights possessed by the holder have not been taken away. The Section 4 only restrains the holder from imposing any restriction or condition on the buyer regarding enjoyment or disposal of the land when the holder, who has acquired a permanent heritable and transferable right of use, occupation or enjoyment in the land sells his land. In other words, Section 4 only refers to restrictive covenant in a contract of sale limiting the use or enjoyment of the property, or the disposal of it, by the buyer. For these reasons the property of any person is not deprived of. There may be cases where restriction may amount to deprivation of property. But in the instant Case, it is not as such in view of the discussions above, liven if it is assumed that properly of a person is deprived of under Article 300A of the Constitution the property of any person can be deprived of by the impugned Act, if valid. Whether the impugned Act is bad for not providing compensation is altogether a different question, On the facts and circumstances of the case we have already concluded that no property of any person is deprived of by Section 4 of the Act and, therefore the discussion on the question whether the Act is bad for not providing compensation does not arise, However, Section 4 violates Article 14 of the Constitution or not shall be discussed later in this judgment.
The next contention of the learned Counsel for the Petitioners is that restriction u/s 4 is violative of Article 14 of the Constitution and the customary laws of the Khasis.
The sale of property is a contract whereby the seller transfer the ownership, or title and possession, of the property in consideration of payment or promise of payment of a certain price in money, or its equivalent, to the buyer, Therefore, a right of disposal is incidental to and inseparable from the beneficial ownership of the property, such a condition or limitation absolutely restraining the transferee from parting or disposing of his interest in the property it void u/s 10 of the Transfer of Property Act except in the case of lease as provided therein under. But the Transfer of Property Act as not applicable to the State of Meghalaya except the areas mentioned in the Shillong Civil Laws and Laws Act, 1947, Similarly, the imposition of restriction on the buyer respecting the use and enjoyment is also against the incidents of absolute ownership except as provided by law.
In the preamble it is stated:
to remove restriction on the use, occupation and enjoyment of land by a purchaser and for matters connected therewith.
The object and reasons for introducing the bill and passing the Act runs:
In order to remove difficulties caused to a large section of the people in some parts of the State by unrestricted private regulation of transactions concerning land, it is felt necessary to introduce legislation for that purpose.
Section 23 of the Indian Contract Act, 1872 provides, inter alia, that the consideration or object of an agreement is lawful unless it is forbidden by law or the Court regards it as an immoral or opposed to public policy.
The Act aims at declaring restrictive covenant in the contract of sale respecting enjoyment or disposal of the land by the buyer has void vis-a-vis Section 23 of the Contract Act. On examination of Section 4 and a perusal of the Report of the Land Reform Commission, it appears to us that imposition of restriction on the buyer regarding enjoyment or disposal of the land is opposed to public policy in the State of Moghalaya. At this stage it will be helpful to refer to the decision of the Supreme Court in Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, The relevant passage in para 93 runs as follows:
The Contract Act does not define the expression "public policy" or "opposed to public policy". From the very nature of things, the expression "public policy" ''opposed to public policy or "contrary to public policy" are incapable of precise definition ....It connotes some matter which concerns a public good and public interest.
(emphasis supplied)
That apart, a reading of the object and preamble of the Act indicates that Section 4 has been enacted In order to remove doubts or difficulties. In this view of the matter, the provisions u/s 4 is not unreasonable and is not violative of Article 14 of the Constitution.
The next question which arises for consideration is whether the Section 4 of the Act violates the alleged custom. In order that a custom or customary practice may have the force of law, it is essential that it should be ancient, invariable, certain and reasonable. But the custom which is opposed to law and public policy is not a valid custom. A valid custom having the force of law is to be honoured, and at the same time changes in the society or community cannot be ignored. Therefore, an enactment of the competent Legislature can override the custom as the customary law is capable of modification and no custom shall be allowed to override or overrule the provision of an Act of the Parliament or of a State Legislature.
The next contention of the learned Counsel for the Petitioners is that Section 2 of the Act makes a discrimination between the land owned by the Government and that owned by private individuals and therefore Section 4 of lands against provisions of Article 14. Section 2 of the Act provides : "The Act shall not apply to the Government Land." The distinction made between the land of the Government and that belonged to the private individual is reasonably based on intelligible differentia between two classes and has nexus with the object of the Act, It is expected that the Government would act in the interest or public, Therefore, there is a reasonable nexus between the basis of classification for the purpose of differentiation and the object sought to be achieved by the Act.
As regards the vires of Section 5 of the Act, Section 5 runs as follows:
Notwithstanding anything to the contrary in any contract custom, usage or practice, realization of any ''salami'' in any form, shall be illegal.
The Act has not defined ''salami'', In Pathumma and Others Vs. State of Kerala and Others, relying on earlier decision in Mohd. Hanif Quareshi and Others Vs. The State of Bihar, the Supreme Court has held that in judging reasonableness of restrictions the Court is fully entitled to take into consideration matters of common report, history of the times and matter of common knowledge and the circumstances existing at the time of legislation, The Report of toe land Reforms Commission for'' Khasi Hills shows that ''salami'' is key-money which is a percentage rate of the total sale price of the property. A perusal of the Report or the Commission reveals the history of the times and circumstances existing at the time of legislation. On consideration of the Report, it appears that realization of ''salami'' in any form is against public policy in the State of Meghalaya and is unreasonable, That apart, there is beneficial object behind the Act. For these reasons Section 5 is not violative of Article 14 of the Constitution.
In respect of vires of Sections 3, 6 and 7 Section 3 is definition section. Section 6 provides penalty for violation of Section 4 Section 7 relates to the power of the State Government to frame rules There is no dispute that if Section 2, 4 and 5 are valid, Section 3, 6 and 7 will also be valid.
For the foregoing reasons, the petition is dismissed, No costs.