Kesho Nath Bakshi vs State

Mian Jalal-ud-Din, J.—This is a writ petition filed by Kesho Nath Bakshi praying for issuance of a writ of certiorari and mandamus and for

declaring Act No. XXXIII of 1966 void with the further Prayer to ask the competent authority to proceed with the revenue case Badri and others

v. Jethu and others pending with the Assistant Commissioner. Jammu.

The petitioner has averred that he is a retired Government servant. He, in order to make his two ends meet applied for ejectment of tenants at

will and protected ones on the ground of personal cultivation as provided u/s 49 of the Jammu and Kashmir Tenancy Act of 1980. The case was

being tried by the Assistant Commissioner when under an Ordinance followed by an Act in the Assembly the hearings in such cases were stayed in

the year 1966. The stay of Proceedings for ejectment, it is averred, affects the fundamental rights of the petitioner in as much as it interferes with his

right to use the property and right to follow any occupation or trade and also the right to live. The order was Passed maliciously in order to deprive

the petitioner of his rights and this has created bad blood amongst the landlords and the tenants.

The State has filed objections through the Additional Advocate General. In these objections it is admitted that the petitioner has retired from

Government service; that the petitioner along with other persons made an application u/s 49 of the Jammu and Kashmir Tenancy Act for ejectment

of Jethu and others from his land. It is also admitted that the above application for ejectment was made (stayed?) under the provisions of

Ordinance 10 of 1966 which was later on replaced by J. & K. Tenancy (Stay of Ejectment Proceedings) Act of 1966. The above Act, it is

averred, is constitutionally valid under the provisions of Article 31-A of the Constitution of India as it is a piece of agrarian reform legislation meant

for the welfare of tillers of the agricultural lands. At the time the above Ordinance and subsequently the Act were passed the question of fixing limit

in the area of agricultural holdings owned by the proprietors was under the active consideration of the respondent. In order to maintain status quo

and with a view to fix the size of agricultural holdings it was considered necessary to Pass the above Ordinance and then the Act. Now as the bill

fixing the size of agricultural holdings in the legislature of Jammu and Kashmir has been introduced, till the above bill becomes law it is necessary

that status quo in respect of the position of tillers of land is maintained. These steps were taken in order to do social justice to the cultivators of the

agricultural land and save them from becoming landless which would otherwise adversely affect the interests of general public.

I have heard the arguments in the case.

It appears that the Petitioner previously also filed writ petition asking the court not to extend the date of stay of suits for ejectment of tenants u/s

49 of the Jammu and Kashmir Tenancy Act of 1980. Almost the same averments which have been made in the present petition were made in the

previous petition with this modification that in the present petition the petitioner challenges the constitutional validity of the Ordinance and the Act

whereas the previous petition was directed against the extension in the date of the Ordinance. When that petition came up before the court for

admission. Hon'ble Jaswant Singh J. recorded the following order:-

Heard the petitioner who is present in person. A writ of the nature sought for cannot be issued by the High Court. The petition is accordingly

dismissed in limine.

After the aforesaid petition was dismissed, the petitioner filed the present petition.

The petitioner himself argued the petition before me. His main argument is that the Ordinance which has been replaced by the Act adversely

affects his fundamental right to use the land for personal cultivation which is a right conferred on him to follow any occupation or trade and the right

to use the property. Nor is the Act saved by Article 31A of the Constitution of India inasmuch as the Act neither extinguishes nor modifies the right

but keeps only the right of the petitioner under suspense which is not envisaged by Article 31A. Therefore the full Bench authority Yogeshwar v.

State of Jammu and Kashmir of this Court reported as AIR 1970 J.&K. 123 (FB). is not applicable to the present case and the parties are not

governed by the said authority. As against this the learned Additional Advocate General appearing for the State has submitted that the impugned

Act is a piece of agrarian reform legislation designed for the welfare of the tillers of the agricultural lands and to enable the Government to introduce

agrarian reform in the State Legislature for the welfare of the class of tenants (of the agricultural land). According to the learned Addl. Advocate

General the point is covered by the aforesaid Full Bench authority inasmuch as the State has modified the rights of the landlord to recover the land

from the tenant temporarily.

On a careful consideration of the matter I am of the view that the point raised by the petitioner is not covered by the Full Bench authority

reported as Yogeshwar Vs. State of Jammu and Kashmir, . It was held in that case that the effect of introduction of subsec. (3) in Section 47 of

the Tenancy Act was to completely obliterate the landlord's right of ejectment of a tenant on the ground of personal cultivation as given in Section

44 (1) (e), but it was held that the amendment was saved by virtue of Article 31-A (I) (a) which confers twofold right on the State, first to acquire

any agricultural lands constituting an estate and any rights therein. Secondly, without acquiring the estate it might extinguish or modify any right in

the estate, the reason being that the legislature intends to introduce an agrarian reform with the object of regulating the rights of landlord and tenant

or of conferring a more beneficial status or interest on the tenants with a view to achieve rural economy. The Full Bench observed that once this

object was achieved then the legislation became completely immune from the challenge on the ground that the amendment infringes or destroys the

fundamental rights of the property of a citizen as guaranteed under Sections 14, 19 and 31 of the Constitution of India.

In the present case, however, the fundamental right of the petitioner is neither extinguished nor modified in the sense that the proprietary rights have

been destroyed or modified. In Thakur Raghubir Singh Vs. Court of Wards, Ajmer and Another, the word 'Modification' as used in the Article has

been interpreted to mean in the context of the Article ""modification of the proprietary right of a citizen like an extinguishment of that right and

cannot include within its ambit a mere suspension of the right of management of estate for a time, definite or indefinite."" Therefore Article 31A

cannot be said to have any application to the present case, as the impugned amendment only suspends the right and does not 'modify' it. It only

intends to stay the operation of Section 49 of the Tenancy Act and this is a temporary restriction imposed on the right of the petitioner to recover

the land for personal cultivation. The question therefore is: is the impugned law saved by the Constitution of India notwithstanding the fact that the

petitioner's right is adversely affected although temporarily. In my Opinion the impugned amendment is saved by Article 19 (5) of the Constitution

of India as it is a reasonable temporary restriction on the right of the petitioner to recover the land from the tenant. Reasonable restriction would

mean a restriction imposed by dictates of reason that is rational. The concept of reasonableness is a wholesome doctrine to harmonise the rights of

an individual with those of public at large. But the limitation upon the right must not be arbitrary or excessive beyond what is actually necessitated

by public interest. Restriction must have reasonable relation to the object which the legislation intends to achieve. This is the touchstone to test the

rationale behind the legislation. Therefore in order to arrive at the right conclusion we have to examine the scheme and the object of the amended

Act and also refer to the returns filed by the State. Now in the returns filed by the Addl. Advocate General on behalf of the State it is averred that

the impugned amendment staying applications for ejectment has been enacted with the object of regulating the rights of the landlord and the tenant

and with a view to introduce agrairian reform in the State meant for the welfare of the class of tenants. At the time the above Ordinance was issued

and subsequently the amendment Act was passed the question of fixing limits in the area of agricultural holdings owned by the proprietors was

under the active consideration of the State. In order to maintain status quo and with a view to fix the size of the agricultural holdings it was

considered necessary to pass the above mentioned Ordinance and then the Act. It is further averred that the Bill fixing the size of the agricultural

holdings in the State legislature has been introduced and till the above bill becomes law it is necessary that status quo in respect of the position of

tillers in the land is maintained. These steps were taken in order to do social justice to the class of tenants and save them from becoming a landless

class. This also appears to be the object behind the impugned amendment. This being the position, I am of the view that the temporary restriction

imposed on the right of the petitioner is well founded and is reasonable. I am fortified in my view by AIR 1964 Mvs 43 where a somewhat similar

question came up for consideration before the Division Bench of Mysore High Court. That was a case where a landlord applied for eviction of his

tenants under 'The Bombay Tenancy and Agricultural Lands Act.' One of the but without making any order as to costs questions inter alia debated

before the High Court was whether a landlord could prosecute the civil petition because proceedings in the civil Court had been stayed u/s 4 of the

Mysore Tenants (Temporary Protection from Eviction) Act 1961 as that Section statutorily stayed all suits and proceedings for eviction of lands

held by tenants and whether this piece of legislation was valid. The question was considered and it was held that the emergency legislation staying

proceedings could be considered as reasonable restriction within the meaning of c1. (5) of Art. 19 imposed in the interest of the general public. It

was observed that it would be enough to say that since the impugned legislation was enacted solely for the purpose of preserving status quo and

for the purpose of (preventing) eviction of tenants who might under the new law be able to retain Possession of the land from which the eviction is

sought during the interregnum, the impugned legislation being a purely temporary legislation enacted as an emergency measure so that it might be in

operation until a permanent law was enacted, it would be unreasonable for anyone to suggest that what the law does was to impose unreasonable

restrictions. Their Lordships of Mysore High Court while considering the reasonableness or otherwise of the restriction imposed by the legislature,

further observed that the temporary character of the impugned legislation was worthy of consideration. If in the circumstances explained by the

State that Pending the enactment of a permanent legislation the legislature of the State thought it reasonable to Preserve status quo and stop the

eviction of the tenants on whom the legislation intends to confer certain benefits not already available to them, the law enacted with the object of

stopping eviction temporarily for a specified period of time would not be unreasonable restriction on the fundamental right guaranteed by Article 19

(f). Reliance was also placed in this case on the observations made in Sardar Inder Singh Vs. The State of Rajasthan, in which similar legislation

under review was held to be one which did not impose unreasonable restriction as it was held to be a purely temporary measure to be in operation

until a permanent law was enacted. For all this I will therefore be loath to say that the present piece of legislation staying proceedings of eviction is

an unreasonable restriction on the fundamental right of the petitioner.

For the foregoing reasons I am of the view that the impugned legislation is a reasonable restriction imposed on the fundamental rights of the

petitioner and the petitioner cannot challenge its constitutional validity. The writ petition, therefore, fails which is hereby dismissed but without

making any order as to costs.