Panchanan-Singh vs Revenue Officer Etc. and Others

M.N. Roy, J.—The petitioner has claimed agriculture as his only source of livelihood and he has also stated that he maintain a big family, out of the usufructs of the lands as involved in this petition, which lands would hereinafter be referred to as the said lands. The area of the said lands and as in Khas possession of the petitioner has been stated to be 13.41 acres of agricultural land within the non-irrigated area which he has claimed to have received by way of inheritance and also by purchase, sometime in the year 1953. The petitioner has also stated that apart from the said lands his wife has in her Khas possession, lands measuring 7.26 acres of agricultural land within non irrigated area. It has been stated that the petitioner''s family consists of himself, his wife, one adult married son, one minor son and one minor daughter. Thus, according to him, he had five members in the family. It has also been stated by the petitioner, that apart from those members as mentioned above, he has two adult unmarried daughters viz Renuka Singh and Minati Singh, who -according to him, were living separately since 1961 and 1967 respectively. It has been stated that those two daughters, were living in separate mess and at different addresses and were employed as teachers in two different schools. It has also been stated by the petitioner that those two daughters out of their savings purchased some lands in their names and they were enjoying and possessing those lands on their own right. These apart, the petitioner has stated that those two daughters have separate ration cards and the lands as purchased by them. have been recorded in their names in the settlement record of rights. As such, the petitioner has claimed that the lands of those two daughters could never be taken into account as the lands of the petitioner.

The petitioner has also stated that the two sons, viz. Sailendra Kumar Singh and Shib Shankar Singh, have no agricultural lands in their names, but they only hold and possess homestead lands, having structures, in the town of Krishnagar. As such, according to the provisions of the West Bengal Land Reforms Act, 1955, (hereinafter referred to as the said Act), the petitioner has stated that the adult married son having no agricultural land in his name, should not be included as a member of his family and the two adult daughters viz unmarried daughters as mentioned above and who have severed ah connections with him and acquired lands in their names, out of their own earnings, should not also be included in his family and in. any event, the lands standing in the name of those unmarried daughters, could not be included in the petitioner''s account of lands, for the purpose of determining the ceiling under the said Act. It has also been stated by the petitioner that if the number of his family members, is taken to be five and the total area of lands standing in his name and in the name of his wife, which would be 20.67 acres, is taken to be the total area of land of the petitioner, then only a very small area of land could be vested to the State under the provisions of the said Act. It would appear that the petitioner was served with a notice under sections 14T and S read with Section 57 of the said Act, directing him to appear on 6th October 1977, for the purpose of determination of his ceiling area of lands and on that date, he duly appeared and submitted a list of lands belonging to him and his wife. It has been stated that since the petitioner did not include the lends standing In the name of his two unmarried adult daughters, he was directed to come with the list of their lands on 7th October 1977. The petitioner has stated that accordingly, he submitted the concerned list of lands standing In the name of two daughters as mentioned above and It has been claimed that It was stated both orally and In writing that those two daughters not being members at the petitioner''s family, their lands could not be considered as that of petitioner''s and those two daughters could not in any event, be considered as member of his family. It was also the case of the petitioner that on 8th October 1977, he appeared before the Revenue Officer concerned and put forward his objections as mentioned above, and also produced his family ration cards and certificate issued by the Vice Chairman of the Krishnagar Municipality, for the purpose of establishing that the daughters as mentioned above, were not members of his family. The Revenue Officer concerned, of course, overruled the objection taken by the petitioner, and passed an order of vesting after allowing the petitioner to retain 1003 acres of agricultural lands only and such order was passed on the basis that the family of the petitioner, should be deemed to consist of six members, including the said two adult unmarried daughters daughters and excluding the eldest son of the petitioner, who holds only homestead lands within Krishnagar town, it has been stated by the petitioner that no final order of vesting was passed on the said date as the petitioner was directed to submit a statement of lands of his choice within the ceiling limit

It has been stated further that on 18th November 1977, the petitioner''s learned Advocate, Kalipada Saha, appeared before the Revenue Officer concerned and pressed the objection as mentioned above. It has also been stated that It was pointed out that the daughters as mentioned above, also filed two separate abjections and afftidavits, supporting the objection as was filed by the petitioner and they also established that they were not members of the petitioners family end were living separatey on acquisition of lands in their names and that too out of their own savings. The Revenue Officer concerned, however, by his order of 18th November 1977, rejected such objections as was raised and passed an order of vesting in respect of 136 acres of land standing in the name of the petitioner and of the entire lands standing in the name of his daughter Renuka Singh measuring 7.08 acres. By mother order of the same day the Officer concerned proposed to vest the entire land measuring 7.30 acres standing in the name of the other daughter Minati Singha and directed issue of the fresh notice on the petitioner. It has also been stated that on 10th December 1977, the final order of vesting was passed by the Revenue Officer concerned in respect of the entire lends ireasuring 7 30 acres standing in the name of the said daughter Minati Singha

Even though the Rule was made ready as regards service an 12th January 1979, there has neither been any affidavit in opposition filed nor any appearance entered.

Mr Mukherjee, appearing in support of the Rule, did not challenge the order of exclusion of the son, in consideration of. coming to the conclusion regarding family of the petitioner, but he challenged the findings regarding inclusion of the adult unmarried daughters as mentioned hereinbefore as members of the family and thus the tagging of the said self acquired lands of the daughter concerned with those of the petitioner, for deciding the extent of his family and consequently the determinations regarding the land ceiling of the petitioner under the said Act.

Section 14K(c) of the said Act, has defined "family" in relation to a Raiyat to be consisting of the persons as mentioned in sub clauses (1) (v) thereunder. in terms of Section 14K (c) (i) to which specific reference was made by Mr. Mukherjee the family of a Raiyat, should be deemed to consist of himself and his wife, minor sons and unmaried daughter, if any. As indiected, above, the daughters as involved d in this case were unmarried. Sub section (ii) and (iii) of Section 14K(c), contemplate inclusion of unmarried adult son, who does not hold any lend as a Raiyst and so also the married adult son, where neither such adult son nor the wife nor any minor son or unmarried daughter of such adult son holds any land as a Raiyat. Sub sections (iv) and (v) of section 14K (c) also lay down other category of persons, who would constitute the family of a Raiyat. Thus, it Is clear on construction of the section and its provisions, that unmarried adult son: holding any land would not be included in the family. But, there is no such express provision regarding the unmarried daughter, holding property of her own. On the analogy of the unmaried adult son, holding land, it was claimed by Mr. Mukherjee, that unmarried adult daughter, holding land of her own, as in this case, should not thus be included in constituting the family of a Raiyat The paucity of such provisions in the said Act. so far as a daughter Having such character as a son as in Section 14K (c)(ii) was claimed by Mr Muklterjeo to be unreasonable, discriminatury and thus ultra vires the Constitution, Chapter H.B of the said Act, which consists of Section 14 to 14j dealing with and determining ceiling on holdings, carne into force on 15th February 1971 end the said incorporation having been challenged, it has been found and observed in the case of Sasanka Sakhar Maity Vs. Union of India, MR 1981 SO 522, that provisions of. Chanter IIB have constitutional in munity of Article 31A and cannot be challenged by invoking the provisions of Articles 14 19(1) (f) (sic) 31 (2) of the Constitution, It has been further and (sic) (sic): ally observed in that case that the concept of family and clubbing together of land holding of each mamber of family, is not violative of Article 31 A(1) It should also be noted that In the case of Sri Kalimata v. Union of India, (1981) 2 SCR 950 , the inter pretation and effect of certain other provisions of the said Act, came up for consideration and even though the provisions as involved in that case were found to be harsh, they were not struck down as these provisions as contained in the Amendment Act of 1972, have been brought under we protective umbrella of the ninth schedule and as such were found to be immuned from cha llenge under Article 31B of tne Constitution of India. The incorporation of chapter IIB was made by the West Bengal Act XII of 1972, which has been placed Ninth Schedule, being item no 81. Such being the position, I am of the view that the ground of ultra vires nature and unconstituttenally of the said chapter IIB or the Sections as contained therein, are not open to challenge new and that too on the ground of discrimination, made between unmaried sons and unmarried daughters On the fasts as Indicated hereinbefore, Mr Mukherjee contended that section 14K of the said Act, purporting to include all adult unmarried daughters, as members of a Raiyat''s familly, would be ultra vires the provisions of Hindu Succession Act and Article 14 of the Constitution of India, as the same according to him, purports to make a distinction between an adult unmarried son and an adult unmarried daughter so far their right to held property and thus deny equal protection of law within the territory of India.

Mr. Mukherjee claimed that even inspite of the citations as above, interference in this case or the considerations of the points as raised would be possible and permiastble, as those determinations were not en consideration of the provisions of Article 300A and also when, no property of a citizen can be taken away without the due process of law. He further claimed that a citizen can be deprived of the right to hold, enjoy and possess property, only in accordance with law or with the authority of law and not otherwise In support of his submissions, Mr Mukherjee, firstly referred to the determinations in the case of Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, . In that case, the Tender Notice stated in clear terms that "sealed tenders in the proscribed form are hereby invited from Registered 2nd Class Hoteliers having ft least 5 years experience for putting up and running a 2nd Class Restaurant and two Snack Bars at the Airport for a period of 3 years " and it has been held that on a proper construction what the notice required was that only a person running a registered 2nd Class hotel or restaurant and having at least 5 years experiences as such should be eligible to submit a tender. This was a condition of eligibility and it was difficult to see how this condition could be said to be satisfied by any person who did not have five years experince of running a IInd Class hotel or restaurant. The test of eligibility laid cown was an objective test and not a subjective one, apart from holding amongst others, that when requisite qualifications are laid down, acceptance of tender of a person, who does not fulfil such requisite qualifications would be bad and void. In fact, Mr Mukherjee made a pointed refernce to the decisions and observations as in paragraph 21 of the determination, which were as under:

This rule also flows directly from the doctrine of equality embodied in Art, 14. It is now well settled as a result of the decisions of this Court in E.P. Royappa Vs. State of Tamil Nadu and Another, and Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but mutt be based on some rational and relevant principles which is non-discriminatory : it must not be guided by any extraneous or irrelevant consideration because that would be denial of equality. The principle of reasonableness end rationality which is legally as well as philsophically an essential element of equality or non-arbitrainess is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its action must conform to some standard or norm which is rational and non-discriminatory, this principle was recognised and appliad by a Bench of this Court presided over by Ray, CJ, in Erusian Equipment and Chemicals Ltd. Vs. State of West Bengal and Another, where the learned Chief Justice pointed out that the State can carry on executive function by making a law or without making a law. '' The exercise of such powers and functions in trade by the State is subject to Part III of the Constitution. Article 14 speaks of equality before the law and equal protection of the laws. Equality of opportunity should apply to matters of public contracts. The State has the right to trade. The State hat there the duty to observe equality. An ordinary individual can choose net to deal with any person. The Government cannot choose to exclude persons by discrimination. The order of black-listing has the effect of depriving a person of equality of opportunity in the matter of public contract. A person who is on the approved list in unable to enter into advantageous relations with the Government because of the order of lack- listing--A citizen has a right to claim equal treatment to enter into a contract which may be proper, necessary and essential to his lawful calling It is true that neither the petitioner nor the respondent has any right to enter into a contract but they are entitled to equal treatment with fathers who offer tender or quotations far the purchase of the goods. I must, therefore follow as a necessary corollary from the principle of equality enshrined in Article 14 that though the State is entitled to refuse to enter into relationship with any one, yet If It does so, it cannot arbitrarily, choose any person it likes for entering into such relationship and discriminate between persons similarly circumstanced, but it must act in conformity with some standard or principle which meets the test of reasonableness and non discrimination and any departure from such standard or principle would be Invalid unless it can be supported or justified on some rational and non discriminatory ground.

Mr. Mukherjee, secondly referred to the case of Kasturi Lal Lakshmi Reddy, Represented by its Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, . In that case, it has boon observed that where the Government is dealing with the public, whether by way of giving or entering into contracts or granting other forms of largess, the Government cannot act arbitiarily at its sweet will. There are two limitations Imposed by law which structure and control the discretion of the Government in this behalf The first Is in regard to the terms on which largess may be granted and the other, in regard to the persons who may be recipients of such largess Unlike a private indvidual the State cannot act as it pleases in the matter of giving largess and it cannot choose to deal with any person it pleases in its absolute and unfettered discretion and every activity of the Government has a public element In it and it must therefore, be Informed with reason and guided by public interest If the Government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be liable to be tested for its validity on the touchstone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional and invalid, apart from holding amongst others that It must follow as a necessary corollary that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest the Government, therefore cannot. for example give a contract or sell at lease out its property for a consideration less than the highest that can be obtained for it unless of course there are other considerations which render it reasonable and in public interest to do so. Such considerations may be that same Directive Principle in sought to be advanced or implemented or that the contract or the property is given not with a view to earning revenue but for the purpose of carrying out a welfare scheme for the benefit of a particular group or section of people deserving it or that the person who has offered a higher consideration is not otherwise fit to be given the contract or the property. As indicated above. Mr. Mukherjee also referred to the provisions of Article 306A which speaks of or contemplates that no person shall be deprived of his property save by authority of law. Mr Mukherjes, on a reference to the determinations In the case of Sasanka Sekhar Msity Vs Union of India (Supra) and those in the ease of Sri Kalimata thakurani etc Vs. Union of India (Supra), claimed that since in those cases, the effect of Article, 300A was not consi dered, so the determination, as made in those cases, would not be applicable and available in this case and on due consideration of the other case as cited by him, interference in this case and en the points as suggested by him, should be made as according to him there was deprivation of the right to hold property, without the authority of law, I am of the view that the said Article will have no application in the case and since the incorporation of chapter II-B, or the provisions therein, have been found, as mentioned above, to be intra vires and furthermore when the provisions as referred to hereinbefore, have been put under the protective umbrella of the Ninth Schedule no challenge on the grounds as indicated above, would be possible and permissible Article 300A, as added by the Constitution Forty fourth Amendment Act, 1978, with effect from 20th June 1979 contemplates that there should be no deprivation of the property of a Citizen save by authority of law The law in this case viz the said Act, has now stood the tests of legislative validity by the determinations of the Supreme Court and as such the said Act cannot be said or deemed, not to be a law or having the authority and force of law so that the provisions of Article 300A would be attracted. The effect of Laws inconsistent with or in derogation of the fundamental rights, have been indicated in Article 13 of the Constitution of India and there it has also been mentioned in Subclause (2) that the State shall not make any law which takes away or abridges the rights conferred by Part-III and any law made in contravention of that clause shall, to the extent of the contravention, be void, apart from laying down in Sub-Clause 3(a) as to what would mean by the expression law". Law under the said Article, in terms of the determinations as made, would mean, the law made by Legislature and includes intra vires statutory order and orders, made in exercise of power conferred by statutoty rules, but would not include administrative orders having no statutory sanction. As mentioned above since the said Act or the provisions of the same have stood the necessary tests of a valid law, I am of the further view, that the submissions on Article 300A as mentioned above, would be of no assistance or avail. The said Act, in my view cannot be held to be not or is not such a law as mentioned in Article 300A.