Yogeshwar vs State of Jammu and Kashmir

S.M. Fazl Ali, C.J.—This is an application by the petitioner who is a landlord of an agricultural land and seeks to challenge the vires of

certain sections of the Jammu and Kashmir Tenancy Act (hereinafter to be referred to as the Act) as amended by Act XIV of 1965. Although in

the petition the petitioner has challenged a number of provisions of the amendments aforesaid, yet in the course of hearing before us he confined his

arguments to challenging the validity of Section 47(3) as inserted by the amendment Act XIV of 1965 of the Act.

In order to appreciate the contention raised by the petitioner it may be necessary to set out the history of the tenancy legislation in the State. It is

extremely encouraging to note that the legislature in the State achieved the abolition of the zamindari and the ceiling much earlier than was done in

the other parts of India. By the Jammu and Kashmir Big Landed Estates Abolition Act the landlords' interest was completely abolished except

orchards, etc., and a ceiling of 182 kanals per head was fixed. The tenant of the land was given proprietary; right of the land taken away from the

landlord. Within the short range of 182 kanals that a landlord could possess under the Big Landed Estates Abolition Act, he had complete

proprietary rights which were further regulated later on by subsequent Amendments to the Act. It is not necessary for us to refer to the other

incidents of the rights of the landlord because the point germane to the present case is regarding the right conferred on the landlord by Section

44(1)(e) of the Act by which he was entitled to eject a tenant on the ground of personal cultivation. This section runs thus.

No tenant shall be liable to be ejected from his tenancy except on any of the following grounds:

(e) that the landlord requires the land for his personal cultivation.

Explanation: Personal cultivation shall include cultivation by any of the members of the family of the landlord.

A perusal of the provisions of this section would clearly show that the landlord was given a statutory right to eject a tenant where he required the

land for personal cultivation either for himself or for the members of his family. It cannot be denied that it is a valuable right and an important

incident of the ownership rights conferred on the landlord by virtue of the Act. The legislature by virtue of the impugned Amendment sought to take

away this right completely and provided that all suits pending for eviction against the tenant on the ground of personal cultivation would

automatically abate. Section 47 is the provision which provides for the procedure on eviction and the amendment has added the following Sub-

section (3) to this section:

No suit shall lie for the ejectment of a tenant by the Landlord for resumption of land for personal cultivation and all such suits pending on the day of

the commencement of the J. and K. Tenancy (Amendment) Act, 1965 shall abate.

The effect of the introduction of Sub-section (3) in Section 47 of the Act is to completely obliterate the right of ejectment of a tenant on the ground

of personal cultivation as given in Section 44(1)(e) of the Act. In other words after the coming into force of the Amendment, Section 44(1)(e) is

put completely out of the way and the right conferred on the landlord by this section is completely destroyed. The learned Counsel for the

petitioner submitted that such a complete destruction of the right of the landlord amounted to a serious invasion and infringement of his fundamental

right to hold property which has been guaranteed by Part III of the Constitution of India. The learned Counsel further submitted that it is well

settled that the right to hold property carries with it the right to recover possession or the right to enjoy actual occupation and possession from the

tenant. In support of his argument the learned Counsel cited S.B. Trading Co. Ltd. Vs. Shyamlal Ramchandra, and Rajah Sri Ravu Sweta,

Chelapathi Ramakrishna Ranga Rao Bahadur, Rajah of Bobbili Vs. The State of Madras, , which no doubt support his contention. We fully agree

with the learned Counsel for the petitioner that the Amendment by taking away one of the important rights of the landlord to get physical

possession of the land clearly infringes the right to hold property possessed by the petitioner under Article 19(1)(f) of the Constitution of India. The

only question that has to be determined is whether or not the amendment can be justified by the provisions of the Constitution. In this connexion it

may be necessary for us to notice the argument advanced by the Addl. Advocate General for the State. The Addl. Advocate General sought to

repel the argument of the petitioner on three grounds. In the first place he submitted that the Act having been included in the 9th Schedule to Article

31-B of the Constitution of India was immune from challenge. The argument was that since the Act itself had been saved by Article 31-B and the

9th Schedule any amendment made from time to time would be deemed to have been saved by this provision. We are, however, unable to agree

with this contention. To begin with there is no doubt that the Act finds a place in the 9th Schedule of Article 31-B as applied to the State and is

therefore immue from challenge. But the Act was included in the 9th Schedule admittedly before the amending Act XIV of 1965. The present

amendment as discussed above is not of a clerical nature but of a substantial character and seeks to bring about an important and substantial

amendment in the proprietary rights of a landlord. Furthermore it was rightly contended by Mr. Bhalgotra for the petitioner that even if the original

Tenancy Act was included in the 9th Schedule then Section 44(1)(e) which conferred a right on the landlord to eject the tenant on the ground of

personal cultivation stood guaranteed and could not be altered by any amendment by the State legislature. We find ourselves in complete

agreement with this argument and hold that the amending Act XIV of 1965 cannot be said to have been protected by Article Sl-B and the

schedule thereto merely because the parent Act has been included in the schedule. Secondly it was contended by the Addl. Advocate General that

the question as to whether there has been an infringement of the fundamental rights by the amendment is not justiciable because Article 19 has been

applied to the State in a limited form and all statutes passed after the application of Article 19 must be presumed to contain reasonable restrictions.

It is true that Article 19 has been applied to the State with certain limitations. The relevant portion of the Constitution (Application) Order 1954

runs thus:

In its application to the State of Jammu and Kashmir, for a period 15 years from the 14th May 1954, Article 19 shall be subject to the following

modifications:

(i) in clauses (3) and (4), after the words 'in the interests or the words 'the security of the State or' shall be inserted.

(ii) in clause (5) for the words 'or for the protection of the interests of any scheduled tribe' the words 'or in the interests of the security of the State'

shall be substituted and

(iii) the following new clause shall be added namely (7) The words 'reasonable restrictions' occurring in clauses (2) (3), (4) and (5) shall be

construed as meaning such restrictions as the appropriate legislature deems reasonable.

Stress was laid by the Addl. Advocate General on Sub-clause (3) of Para. 7 wherein it has been clearly stated that reasonable restrictions shall be

construed as meaning such restrictions as the appropriate legislature deems reasonable. A plain interpretation of this provision clearly indicates that

where the legislature has applied its mind and has specifically stated in the Act that a particular restriction should be deemed to be reasonable, then

the matter is not justiciable but not otherwise. The question whether or not the statute concerned is prior to the application of this order or after

would really make no difference. Any curb or restriction on the fundamental rights of a citizen must be scrutinized with great care and the law must

be confined to its very letter and spirit. It is true that in AIR 1963 J&K 27 a Div. Bench of this Court while considering a similar argument

regarding the validity of the right of| Prior Purchase Act on the ground of contiguity held that the limitation in Para. 7 referred to above of the

Application Order could not apply to pre-Constitution Acts. In this connexion their Lordships observed as follows:

Secondly from the mere existence of a pre-Constitution enactment we cannot assume that the legislature had deemed the restrictions therein

contained to be reasonable restrictions vis-a-vis fundamental rights embodied in Article 19. The question of the legislature's deeming certain

restrictions to be reasonable can arise only in the context of the fundamental rights guaranteed under Article 19. At a time when these fundamental

rights were not in existence and were not heard of one cannot attribute to the legislature the impossible intention of imposing restrictions on the

fundamental rights which were then unborn and unknown or of regarding any restriction as a reasonable fetter on a fundamental right. Clause (7)

could therefore be pressed into service by the legislature only after the fundamental rights came into being.

This decision, however, has not laid down that in the case of post-Constitution Acts in the absence of there being any statement by the legislature

deeming the restriction to bo a reasonable one the matter could not be justiciable. On the other hand in a recent decision of the Full Bench of this

Court in Sewa Nath v. Faqir Chand AIR 1905 J&K 2, OS Bhat, J. speaking for the Court clearly pointed out that unless there is a declaration by

the legislature in the Act deeming the restriction to be reasonable the matter would be justiciable and no presumption in favour of the

reasonableness of restriction would be drawn on this account. Bhat J. observed as follows:

The second point that has to be kept into consideration is that the Constitution is prospective and not retrospective. Therefore the question of

deeming any restriction as reasonable would arise only after the Constitution was made applicable to the State of Jammu and Kashmir. If the

legislature of the State, after the application of the Indian Constitution to it, considers any particular restriction as reasonable, that cannot be

justiciable in a Court of law But unless the legislature expressly after the application of the Constitution to the States applies its mind to any

restriction and then deems it reasonable, this argument is not available.

We are in complete agreement with the aforesaid Full Bench decision and we endorse the same. Our view is further fortified by the fact that there

are some Acts where the legislature has in fact declared its intention by making express statement that the restriction would be deemed to be

reasonable which is the case with the Jammu and Kashmir Alienation of Land (Temporary Restriction) Act, 1959, where Section 6 declares as

follows:

For the removal of doubts it is hereby declared that the restrictions imposed by this Act on the rights conferred by Clause (1) of Article 19 of the

Constitution of India as applied to the State shall be deemed to be and shall be deemed always to have been reasonable restrictions.

A similar declaration is contained in the Jammu and Kashmir Preventive Detention Act. It is therefore reasonable to infer that where no such

declaration is made by the State legislature the matter is justiciable and the Court can examine the question as to whether or not a particular statute

infringes fundamental rights and whether the infringement can be said to be a reasonable restriction.

In the present case we are unable to hold that the restriction imposed on the right of a landlord is a reasonable restriction within the various

clauses of Article 19 of the Constitution of India. In fact the Big Landed Estates Act abolished Zamindari and placed a ceiling. The landlords were

thus left only with 182 ks. of land, some of which was in their possession and some in possession of the tenants. The right to eject the tenant was

itself a very limited right confined only to the ceiling of 182 ks. Even this right was taken away and completely destroyed. It is difficult to hold that

this was a reasonable restriction so as to come within Sub-clauses (5) and (8) of Article 19 of the Constitution of India. The argument of Addl.

Advocate General on this score is therefore overruled.

The next and the most important argument advanced by the Addl. Advocate General and which in our opinion affords a complete answer to the

contention of the petitioner was that the amendment was protected by Article 31A(1)(a) of the Constitution of India. While interpreting the

provision of Article 31A Court has to bear in mind the policy of the Constitution and the policy to which our Government is wedded. India is

essentially an agricultural country and any agrarian reforms for the amelioration of the lot of agriculturists aimed at bringing about a socialistic

pattern of society cannot be struck down merely because it affects the rights of a handful of persons. The Courts must take into consideration the

changing needs of the society and try to do social justice as far as possible. Soon after acquiring independence, the legislatures of various other

States passed laws bringing about radical land reforms and abolition of Zamindari. When they found that certain legal hurdles were placed in the

object of achieving complete social emancipation, our Constitution makers brought forth the amendment of Article 31B and the 9th Schedule so as

to protect several Tenancy Regulations and Land Reform Acts from the challenge that they infringed the fundamental rights of citizens.

In the instant case we are not concerned with Article 31B but with Article 31A. Article 31A was introduced by the First Amendment Act of

1951 and later amended by the Fourth Amendment Act of 1955. The relevant portion of this Article runs as follows:

Notwithstanding anything contained in Article 13, no law providing for--

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights....shall be deemed to be

void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31.

Provided that where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law,

having been reserved for the consideration of the President, received his assent.

It may be pertinent to note here that in its application to the State of Jammu and Kashmir the proviso to Clause (1) of Article 31A (Supra) has

been omitted. The effect of this omission is therefore that the State legislature can legislate on the fields covered by Article 31A without obtaining

the assent of the President. Thus our Stated legislature possesses much wider powers than other State legislatures in this regard.

Mr. Bhalgotra, however, submitted that in view of lie decision of the Supreme Court in Golak Nath's case in AIR 1967 SC 1943, since the

fundamental rights were sacrosanct and immutable the amending Act No. XIV of 1965 affecting the fundamental rights of the petitioner and other

landlords must be struck down as constitutionally invalid. Before we come to Golak Nath's case AIR 1967 SC 1943 , we might dispose of some

of the authorities where the scope and ambit of Article 31A has been noticed. Before we do so, an analysis of Article 31A(1)(a) shows that it

clearly confers on the legislature the right to legislate any law relating to acquisition by the State of an estate or any rights therein or the

extinguishment or modification of any such rights. Thus this Article confers a two-fold 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 legislation

contemplated by Article 31A must be of the nature of an agrarian reform with the object of regulating the rights of a landlord and tenant or of

conferring a more beneficial status or interest on the tenant with a view to achieve rural economy. Once this object is achieved then the legislation

becomes completely immune from challenge on the ground that it infringes or destroys the fundamental rights of the property of a citizen as

guaranteed under Articles 14, 19 and 31"" of the Constitution of India, This Article was interpreted by their Lordships of the. Supreme Court in

Kavalappara Kottarathil Kochuni and Others Vs. The State of Madras and Others, , 1087 wherein their Lordships pointed out as .under:---""If an

estate so defined is acquired by the State no law enabling the State to acquire any such estate can be questioned as inconsistent with the rights

conferred by Articles 14, 19 or 31 of the Constitution. So too, any law extinguishing or modifying any such rights mentioned in Clause 1(a) and

defined in Clause 2(b) cannot be questioned on the said grounds.

It is therefore manifest that the said Article deals with a tenure called estate and provides for its acquisition or the extinguishment or modification of

the rights of the landholders or the various subordinate tenure holders in respect of their rights in relation to the estate.

In that case, however, their Lordships struck down the law in question because they held that the Act impugned overstepped the limits of Article

31A and sought to regulate inter se the rights of a proprietor and the junior members of a family and therefore could not be considered an agrarian

reform. According to their Lordships the impugned Act sought to overreach the object implicit in the Article.

Similarly in Gangadharrao Narayanrao Majumdar Vs. The State of Bombay and Another, , the Act by which the right or interest of an Inamadar

under the Bombay Personal Inams Abolition Act was abolished was upheld by the Supreme Court on the ground that it was protected by Article

31A, being in the nature of an agrarian reform.

In State of Bihar Vs. Rameshwar Pratap Narain Singh and Others, , the impugned Act sought to abolish the right of a landlord to hold property

and acquire the same and it was upheld on the ground that this being a right in an estate it fell within the protection given by Article 31A and was

constitutionally valid.

We might now refer to Golak Nath's case, AIR 1967. SC 1943, which appears to be the sheet anchor of the argument of the learned Counsel

for the petitioner. In this case the majority judgment no doubt held that fundamental rights were immutable and unamendable, and in fact could not

be amended by any amendment unless a fresh Constituent Assembly was constituted, Nevertheless Subba Rao, C.J., delivering the leading

judgment clearly held, that all the previous amendments including the First, Fourth and the Seventeenth Amendments did abridge the scope of

fundamental rights but on the basis of the doctrine of prospective over-ruling their validity could not be touched and they would continue to be

valid. Hidayatullah J. (as he then was) held that the First, Fourth and the Seventeenth Amendments became a part of the Constitution by

acquiescence and as the previous amendments were saved by the principle of acquiescence, the Seventeenth; Amendment also could not be

questioned as it stood. The relevant point to note, however, is whether the doctrine of prospective overruling was invoked as adumbrated by

Subba Rao, C.J. or the doctrine of acquiescence as held by Hidayatullah, J., all the amendments including the Seventeenth Amendment were held

to be valid, by the majority decision Article 31A was brought into existence, as pointed out 'by the First Amendment and further amended by the

Fourth Amendment of 1955. In these circumstances therefore Article 31A also was clearly saved and held to be valid by the majority decision in

Golak Nath's case AIR 1967 SC 1943.

Summarizing the position, Subba Rao C.J. observed as follows:

(1) The power of the Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368

thereof which only deals with procedure. Amendment is a legislative process.

(2) Amendment is law within the meaning of Article 13 of the Constitution and therefore if it takes away or abridges the rights conferred by Part III

thereof, it is void.

(3) The Constitution (First Amendment) Act, 1951, Constitution. (Fourth Amendment) Act, 1955 and the Constitution (Seventeenth) Amendment

Act, 1964 abridge the scope of the fundamental rights. But on the basis of earlier decisions of this Court they were valid.

(4) On the application of the doctrine of prospective overruling as explained by us earlier, our decision will have only prospective operation and

therefore the said amendments will continue to be valid.

(5) We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution

so as to take away or abridge the fundamental rights enshrined therein.

(6) As the Constitution (Seventeenth) Amendment Act holds the field, the validity of the two impugned Acts, namely, the Punjab Security of Land

Tenures Act, X of 1953 and Mysore Land Reforms Act, X of 1962 as amended by Act XIV of 1965.

It cannot be questioned on the ground that they offend Articles 13, 14 or 31 of the constitution.

Thus their Lordships clearly declared that all the previous amendments of the Constitution were valid and that Parliament would have no power.

from the date of the decision of the Court to amend any provision of Part III of the Constitution. Golak Nath's case AIR 1967 SC 1943, was

decided on 27-2-1967. It is therefore manifest that any Act which falls within the protection of Article 31A which was held to be valid and which

was also passed before the rate of the decision was clearly immune from challenge.

In the instant case the impugned amendment Act XIV of 1965 was passed about two years before this decision and since the Act was clearly

covered by Article 31A its constitutionality could not be challenged on the ground that it infringed Articles l4, 19 and 31.

In a recent decision in Ramanlal Gulabchand Shah Vs. The State of Gujarat and Others, , the scope of Article 31A has been discussed and it

was pointed out that extinguishment of a right to fall within the protection of Article 31A(1)(a) must be complete and unconditional. A mere

suspension of the right would not attract the provisions of Article 31A.

In the instant case the effect of the amended Section 47(3) would be to completely extinguish the right of the landlord and therefore it clearly

falls within Article 31A(1)(a) of the Constitution of India. Since one of the important incidents of his ownership has been destroyed by the Act, net

amounts to an undoubted modification of the proprietary right of the landlord as held by the Supreme Court in Thakur Raghubir Singh Vs. Court of

Wards, Ajmer and Another, .

In Anr. recent decision of the Supreme Court in B. Shankara Rao Badami and Others Vs. The State of Mysore and Another, , a legislation to

abolish the rights of Inamdars in an Inam estate was held to be an agrarian reform and protected by Article 31A of the Constitution of India. In this

case Ramaswami J. speaking for the Court observed as follows:

In the present case, it is plain that under Article 31A as introduced by the 1st amendment to the Constitution or as altered by the 4th Amendment,

the impugned Act is protected from attack in any Court on the ground that it contravenes the provisions of Article 31(2) of the Constitution. The

reason is that the impugned Act is a law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or

modification of such rights as contemplated by Article 31A of the Constitution. The impugned Act provides for acquisition of the rights in Inamdars

in inam estates in Mysore State and it is intended to abolish all intermediate holders who were termed as superior holders and to establish direct

relationship between the Government and the occupants of land in the Inam Villages in respect of which notification has been issued. The legislation

was undertaken as apart of agrarian reform which the Mysore State legislature proposed to bring about in the former State of Mysore. The

impugned statute, therefore, falls under the protection of Article 31A of the Constitution and cannot be challenged on the ground that Article 3lA

has been violated, that no principle of compensation has been provided or that the compensation provided for is illusory or inadequate.

For these reasons, therefore, we are clearly of the opinion that the impugned legislation namely the Amendment Act XIV of 1965 being

protected by Article 31A of the Constitution is immune from challenge on the ground that it infringes Articles 14, 19 and 31 and the amendment is

perfectly, valid and cannot be challenged by the petitioner on any legal ground.

The result is that this petition is dismissed but in the circumstances without any order as to costs.

J.N. Bhat, J.

I agree.

Mian Jalal-Ud-Din, J.

I agree.