PETITIONER:
DATTATRAYA GOVIND MAHAJAN & ORS. ETC.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ANR.
DATE OF JUDGMENT27/01/1977
BENCH:
BHAGWATI, P.N.
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
KRISHNAIYER, V.R.
SHINGAL, P.N.
CITATION:
1977 AIR 915 1977 SCR (2) 790
1977 SCC (2) 548
ACT
Maharashtra ,Agricultural Lands (Ceiling of Holdings) Act,
1961 as amended the Maharashtra Agricultural Lands (Lower-
ing of Ceiling of Holdings) Amendment Acts 1972 and 1975
(Maharashtra Acts 21 of 1975 and 47 of 1975 and 2 of
1976)--Ss. 2(11A), 2(22), 3.4.5.(1) r/w Schedule I and
Section 6-Principal Act and the various amending Acts,
placed in the Ninth Schedule-Whether the Act as amended, in
so far as it creates an artificial family unit and fixes a
ceiling on holding of land by such family unit is void and
violative of the second proviso to clause (1) of Art. 31A
and not saved by the immunising provision enacted in Art.
31B.
Constitution of India, 1950--Art. 31B, interpretation of
Constitution of India, 1950--Art. 31 (A) (1), Second
proviso--Whether confers a Fundamental Right.
Constitution of India 1950 (Seventeenth Amendment) Act,
1964, S. 3--Explanation--Construction of.
Interpretation of Statutes--Construction of a "proviso"
to a section or clause in an enactment.
HEADNOTE
Punjab Land Reforms Act, 1972 included in the protec-
tive umbrella of the Ninth Schedule, subsequent to the
decision of the High Court declaring certain provisions
thereof as unconstitutional Art. 3lB being retrospective is
entitled to the immunity conferred by it.
U.P. Imposition of Ceiling on Land Holdings Act (Act No.
1) 1971 as amended by Act No. 18 of 1973 and Act No. 2 of
1975, all included in the, Ninth Schedule--The question,
whether s. 5(6) is violative of second proviso to clause (1)
of Art. 31A of the Constitution cannot be assailed by reason
immunity enacted in Art. 31B.
The Maharashtra Agricultural Lands (Ceiling of Holdings)
Act, 1961 which was enacted in implementation of the Direc-
tive Principles of State Policy contained in clauses (b) and
(c) of Art. 39 of the Constitution imposed a maximum ceiling
on the holding of agricultural land in the State of Maha-
rashtra and provided for the acquisition of land held in
excess of the ceiling and for the distribution of such
excess land to landless and other persons with a view to
securing the distribution of agricultural land in a manner
which would best observe the common good of the people.
Maharashtra Amendment Act 21 of 1975 effected radical amend-
ments in the principal Act by lowering the ceiling on agri-
cultural holding and created a concept of artificial family
unit for fixing ceiling on holdings of agricultural land.
The person as defined in s.2(22) r/w. s.2(11) and his spouse
and their minor daughters were clubbed together for the
purpose of constituting a family unit as defined in the
Explanation to s.4 sub-section (1) and all lands held by
each member of the family unit whether jointly or separately
were aggregated together, and by a fiction of law deemed to
be held by the family unit.
The appellant landlords in the State of Maharashtra
preferred writ petitions in the High Court of Bombay chal-
lenging the constitutional validity of the Principal .Act,
as amended on various grounds since the effect of the provi-
sions of the principal Act as amended by the three Maharash-
tra Acts, viz. 21 of 1975, 47 of 1975 and 2 of 1976 was to
expropriate a part of the lands belonging to concept of
family unit and fixed a ceiling ’on holding of land by such
family unit, it was violative of the second proviso to
clause (1) Art. 31A and was not saved by the immunising
provision enacted in Art. 3lB. The High Court dismissed
them. The main contention was that in so far as the Act
created an artificial
791
the petition holding that Art. 3lB afforded complete
immunity to the provisions of the principal Act.
In appeal by special leave to this Court, the appellant
contended: (1) On a true construction of Art. 31B a post
constitution enactment such as the Act is protected from
invalidation only when it merely transgresses a restriction
on legislative competence imposed by any provision of that
Part and is therefore inconsistent with such provision.
The larger ground of validation curing generally any incon-
sistency with any provision of Part III is available only in
case of pre-constitution legislation. (ii) The second
proviso to clause (1) of Art. 37A does not confer any Funda-
mental Right but merely imposes a limitation,on the legisla-
tive competence of the legislature and, therefore, Art. 3lB
does not exonerate the Act from its obligation to conform
with the requirements of the second proviso to clause (1)
of Art. 31. (iii) To interpret the second proviso as
conferring a Fundamental Right would convert the second
proviso into a substantive provision and that would be
contrary to the well-recognised canon of construction that
a proviso must be read so as to carve out from the main
provision something which would otherwise fall with it and
(iv) The Explanation to s.3 of the Constitution (Seven-
teenth Amendment) Act, 1964 shows that an acquisition made
in contravention of the second proviso to clause (i) of Act.
31A is void and does not have the protection of Art. 3lB.
even if the law under which such acquisition is made is
included in the Ninth Schedule.
Dismissing the appeals, the Court,
Held: Per Bhagwati J. (for himself and on behalf of Ray,
C.J., Beg and Shinghal, JJ.)
(1) The Maharashtra Agricultural Lands (Ceiling of Holdings)
Act, 1961 as amended by Maharashtra Acts 21 of 1975, Maha-
rashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 in so
far as it creates an artificial concept of family unit and
fixes a ceiling on holding of land by such family unit, does
not conflict with the second proviso to clause (1) of Art.
31A. [810 E]
(2) It would not be possible to say in the ease of an
individual member of the family unit that when any land held
by him under his personal cultivation is taken over by the
State under the Act by reason of the land deemed to be
held by the family unit being in excess of the ceiling limit
applicable to the family unit, the acquisition is of any
land "within the ceiling limit applicable to him" and hence
in such a ease there would be no question of any violation
of the provision enacted in the second proviso to clause (1)
of Art. 31A in so far as the land held by him is concerned.
It may be that by reason of the creation of an artificial
concept of a family unit, one or more members of the family
unit may lose the land held by them, but that cannot be
helped, because having regard to the social and economic
realities of our rural life and with a view to nullifying
transfers effected in favour of close relations for the
purpose of avoiding the impact of ceiling legislation, a
family unit has been taken by the State Legislature as a
unit for the applicability of the limitation of ceiling
area. [809 H, 810 A-B]
(3) Even if the Act, in so far as it introduces an arti-
ficial concept of a family unit and fixes ceiling on
holding of agricultural land by such family unit, is
violative of the second proviso to clause (1) of Art. 31A it
is protected by Art. 31B, by reason of its inclusion in
the Ninth Schedule. [808 F-G]
Hasmukhlal Dayabhai v. State of Gujarat [1977] 1 SCR 103
followed.
(4) It is an elementary rule of construction that a
statutory provision must always be interpreted in a manner
which would suppress the mischief and advance the remedy
and carry out the object and purpose of the legislation. Our
Constitution has a social purpose and an economic mission
and every Article of the Constitution must, therefore. be
construed so as to advance the social purpose and fulfil the
economic mission it seeks to accomplish. [803 F-G]
(5) The aim and objective of Art. 3lB is to make the
most comprehensive provision for saving agrarian reform
legislation from invalidation on the ground of infraction of
any provision in Part III and it must therefore be so inter-
preted as to have the necessary sweep and coverage. An
expansive interpretation must be placed on the language of
Art. 31B so to carry out the object and purpose of enacting
that Article. [803 F-H]
792
(6) Article 3lB is sufficiently wide to protect legisla-
tion not only where it takes away or abridges any of the
rights conferred by any provisions of Part but also where it
is inconsistent with any such provisions. [803 H, 804 A]
(7) The words "such Act, Regulation or provision is incon-
sistent with or takes away or abridges any of the rights
conferred by any provision of this Part" in Art. 31B are
clearly an echo of the language of clauses (1) and (2) of
Art. 13 and they have obviously been employed because the
enactments Specified in the Ninth Schedule may be pre-con-
stitution as well as post-constitution laws.But, it would
not be right to introduce an artificial dichotomy in Art.
3lB by
correlating the first part of the expression namely, "is
inconsistent with ......any provisions of this Part" and
confining its applicability to pre-constitution legislation
and correlating and confining the applicability of the other
Part of the expression namely "takes away or abridges
any of the rights conferred by; any provisions of this
Part" to post constitution legislation. Both the parts of
the expression, on a plain natural construction of the
language of Art. 3lB apply equally to post-constitution
legislation as well as pre-constitution legislation. [803
D-F]
(8) The Second Proviso to clause (1) of Art. 31A does
confer a Fundamental Right. The second proviso to Art. 31A
confers a right higher than the one under clause (2) of Art.
31 on a person in respect of such portion of land under his
personal cultivation as is within the ceiling limit applica-
ble to him and if the Act by creating an artificial concept
of a family unit and fixing ceiling on holding of agricul-
tural lands by such family unit enables land within the
ceiling limit to be acquired without payment of full market
value, it would be taking away or abridging the right
conferred by the second proviso, but it would be protected
by Art. 31-B. [804. B, 806 E]
(9) The second proviso to clause (1) of Art. 31A is also
couched in the negative language like clauses (1) and (2) of
Art. 31 and it imposes a fetter on the exercise of the
legislative power of the State by providing that the State
shall not be entitled to make a law authorising acquisition
of land held by a person under his personal cultivation
within the ceiling limit applicable to him, unless the law
provides for payment, of compensation at a rate not less
than the market value. This limitation on the legislative
power of the State is the measure of the fundamental right
conferred on the owner of the land. It is by imposing limi-
tation on the exercise of legislative power that protection
is given to the owner in respect of the land held by him
under his personal cultivation within the ceiling limit.
[805 D-E]
State of Bihar v. Kameshwar Singh [1952] SCR 889 .@ 986;
R.C. Cooper v. Union of India [1970] SCR 530 @ 569, reiter-
ated.
(10) Restriction on legislative competence and conferment
of right on the holder of land within the ceiling limit are
complementary to each other. They are merely two different
facets of the same provision. What is limitation of
legislative power from the point of view of the State is
conferment of right from the point of view of holder of land
within the ceiling limit. The former secures the latter.
The second proviso in effect guarantees protection to the
holder against acquisition of that portion of the land
which is within the ceiling limit except on payment of the
market value of such land. The second proviso clearly con-
fers a right to property on a person holding land under his
personal cultivation. [805F-G]
(11) The Explanation to s. 3 of the Constitution
(Seventeenth Amendment) Act 1964 does no ’more than provide
that so far as the Rajasthan Tenancy Act, 1955 is concerned,
if any acquisition is made under it in contravention of the
second proviso to clause (1) of ..Art. 31A, it shall, to the
extent of contravention be void. Obviously this Explanation
was rendered necessary, because otherwise, acquisition under
the Rajasthan Act, 1955, even if in contravention of thee
second proviso to clause (.1) of Art. 31A would have been
valid under Art. 31B and that result the parliament did not
wish to produce. It was manifestly not the intention of
Parliament that acquisition made under any enactment
included in the Ninth Schedule should be void where if
conflicts with the second proviso to clause (I) of Art. 31A
and that Art. 3lB should not protect it from invalida-
tion. [806 G, 807 F-H]
793
(12) It is true that the orthodox function of ’an expla-
nation is to explain the meaning and effect of the main
provision to which it is an explanation and to clear up any
doubt or ambiguity in it, but ultimately it is the intention
of the legislature which is paramount and mere use of a
label cannot control or deflect such intention. [807 D-E]
(13) It is true that the proper function of a proviso is
to except or qualify something enacted in the substantive
clause, which, but for the proviso would be within that
clause. The question is one of interpretation of the
proviso and there is no rule that the proviso must always be
restricted to the ambit of the main enactment. [805-H,
806A]
Ishwarlal Thakarlal Almania v. Motabhai Nagjibhai [1966] 1
SCR 367 @373, followed.
C.A. 1040/76.
(14) The inclusion of the Punjab Land Reforms Act, 1972,
in the Ninth Schedule as entry 78 by the
Constitution.(Thirty Fourth Amendment) Act, 1974 subsequent
to the decision of the High Court entitles it to the immuni-
ty conferred by Art. 3lB. It does not suffer from any of
the constitutional infirmities alleged in the writ petition.
[814 C-E]
Hasmukhlal v. State of Gujarat (1977) 1 SCR 103, applied.
C.A. 1307/76.
(15) Section 5, sub-section (6)of the U.P. Imposition.of
Ceiling on Land Holdings Act is valid and its constitutional
validity cannot be assailed by reason of the immunity enact-
ed in Art. 3lB. Section 5(6), even if it contravenes
second proviso to clause (1) of Art. 31A is validated under
Art. 3lB by virtue of inclusion under the protective umbrel-
la of the Ninth Schedule.[812 C-E]
Per Krishna Iyer, J. (concurring)
(1) The Maharashtra, the Punjab and the U.P. Acts are
not unconstitutional taking the constructive view that Art.
31-B vis-a-vis agrarian reforms, is a larger testament of
vision and values in action and a bridge between individual
right and collective good. [824 B-C]
(2) The purpose of Art. 31-B is conferment of total
immunity from challenge on the score of violation of Part
HI. The words used are as comprehensive as English lan-
guage permits. No land reform law shall be narrowed down
by use of Part III, once included in the Ninth Schedule. No
matter what the grounds are, if they are traceable to Part
III in whatever form, they fail in the presence of Art. 3lB.
No master of English legal diction could have used, so
tersely, such protean words which in their potent totality
bang, bar and bolt the door against every possible invalida-
tory sally based on Part III. It is not correct to argue
that the phraseology of Art. 3lB must be correlated to Art.
13 and read with a truncated connotation. [817 H, 822 E-F,
G]
(3) Every Fundamental Right, from the point of view of
the individual, gives a right and from the stand point of
the State is a restraint. Whether the manner of expression
used is in positive terms or negatively, whether the statu-
tory technique of a proviso, saving clause, exception or
explanation, is used of’ 1 direct interdict is imposed, the
substantive content is what matters. Many of the Articles
in Part III worded in a variety of ways, arm the affected
individual with a right and pro tanto prohibit the legisla-
ture and the executive from enacting or acting contra. [823
A-B]
(4) A great right is created in favour of owners to get
compensation at not less than the market value if lands
within the ceiling limit and in personal cultivation are
acquired by the State. This is a fundamental right and is
a creature of the 2nd proviso to Art. 31-A(1). An independ-
ent provision may occasionally incarnate as a humble provi-
so. [823 F-G]
(5) It is absolutely plain that in the context setting
and purpose of a provision even a proviso may function as an
independent clause. [823 G]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos: 1132-1164
1976
794
(Appeals by Special Leave from the Judgment and Order
dated 13-8-76 of the Bombay High Court (Nagpur Bench) in
S.C.A. Nos. 1758, 1481, 2130/75, 358, 359/76, 2089, 1456,
1818, 1823, 1824, 1950, 1951/75, 53/76, 803/76, 1440/75,
340/76, 1449, 1452, 1394/75, 40, 771, 1431, 1531, 1532/76,
1652, 1622/75, 120, 126, 428, 610, 1317, 1831/75 respective-
ly) and
Civil Appeal No. 1307 of 1976
(From the Judgment and Order dated 2-9-1976 of the
Allahabad High Court in Civil Misc. Writ No. 9257/75) and
Civil Appeals Nos. 1040 of 1975 and 1220-1248 of 1976
(From the Judgment and Order dated 14-2-74 and 1-11;73
of the Punjab & Haryana High Court in Civil Writ Nos. 3150,
3145, 3210, 3254, 3287, 3288, 3293, 3456, 3457, 3458-63,
3469-3470, 3472, 3547-3550, 3564, 3565-3568, 3629/73 and
4004/74) and
Special Leave Petition (Civil Nos. 3023-3027, 3894.
4026-4027, 3177-3197, 3203-3213, 3358-3359, 3392-3404,
3477-3483, 36613663, 3059-3060, 3487-3488, 4047, 3365-3377,
3406-3434, 34393464, 3495-3511, 3516-3517, 3519, 3529-3551,
3645-3660, 36803695, 3719-3782, 3787-3816, 3843-3846, 3853-
3864, 3867-3868, 3696-3703, 3199, 3467-3476, 3524-3537,
3597-3621, 3889-3893, & 3899-3902/76.’
V.M. Tarkunde, (CAs. 1132 & 1147), S. N. Khardekar,
in CAs. 1132 & 1133 M/s. Vallabh Das Mohta, in CA. 1156/76,
Dr. N.M. Ghatate, S. Balakrishnan &A.M. Bapat, in CAs. 1132
& 1147 for the appellants in CAs. 1132-1136, 1147 & 1150-64.
S.B. Wad & Mrs. Jayashree Wad, for the Appellants in
CAs. 1137-1146, 1148-49.
Niren De, Attorney General in CAs. 1132 & 1137, M/s.
M.M. Kazi & M.N. Shroff for the Respondents
Niren De, Attorney General, R.N. Sachthey, for the
Attorney General in CAs. 1132, 1307 & 1040.
K. Rajendra Chowdhary, for the interveners M/s. Shankar
Balaji Jagtap, Madan Lal Fakir Chand Dudheida and Chandrab-
han Roopchand Dakale (in CA. 1132).
L.N. Sinha, Sol. Genl. O.P. Rana, CA. No. 1307 of 1976,
for the Appellants.
S. Markendaya, for the Respondents in CAs. Nos. 1040/75
& 12201248 of 1976 :--
L.N. Sinha, Sol. Genl., (1. S. Wasu, Advocate General,
Punjab) O.P. Sharma, Mrs. N. Uppal and Miss Musum Chaudhary,
for the Appellants.
795
V.M. Tarkunde, in CA. 1223--(M/s, K.P. Bhandari. J.B.
Dadachanji and D.N. Mishra, For the Respondents in CAs. Nos.
1223 &1225/76.
Mr. V.M. Tarkunde, for Mrs. Gita Bhadur---M/s. K.P.
Bhandari, J.B. Dadachanji, M.M. Ahuja & D.N. Mishra, for the
Interveners Mrs. Gita Bhadur, Brij Bhushan Shinghal, Smt.
Led Amol Kaur, Mrs. Uma Shinghal in CA. 1220.
K.L. Jagga, D.D. Sharma, Sant Singh in CAs. 1220-48 and
1040.
R.N. Sachthey, State of Haryana.
For the Petitioners in: S.L.Ps. (Civil) :--
Naunit Lal and Miss Lalita Kohli, SLPs. Nos. 3023-27,
3894 & 4026-27.
S.B. Wad and Mrs. Jayashree Wad, SLPs. Nos. 3177-97,
3207-13, 3358-59, 3392-3404, 3477-3483, 3661-3663, 3059--69,
3487-88 & 4047/76 & 3199/76.
Vallabh Das Mohta, N.M. Ghatate and S. Balakrishnan,
SLPs. Nos. 3365-77, 3406-34, 3439-64, 3495-3511, 3516-17,
3519, 3529-51, 3645-3660, 3680-95, 3719-82, 3787, 3816,
’3843-46, 385364, 3867-68 of 1976.
K.B. Rohtagi, M.K. Garg and M.M. Kashyan, SLPs. Nos.
36963703/76.
A.G. Ratnaparkhi, SLPs. Nos. 3467-3476/76.
V.N. Ganpule, SLPs. (Civil) Nos. 3524-27/76.
M.S. Gupta & B.B. Marwal, SLPs. (Civil) Nos. 3597-3621/76.
R.A. Gupta, SLPs. (Civil) Nos. 3889-93/76.
Mrs. S. Bhandare, M.S. Narasimhan, A.K. Mathur, A. K.
Sharma and K.C. Sharma, SLPs. (Civil) Nos. 3899-3902/76.
The Judgments of A.N. Ray, C.J., M.H. Beg, P.N. Bhagwati
and P.N. Shinghal, JJ. were delivered by Bhagwati, J., V.R.
Krishna Iyer, J. gave a separate Opinion.
BHAGWATI, J. This is a group of appeals preferred by
certain landholders in the State of Maharashtra against the
judgment of the Bombay High Court upholding the constitu-
tional validity of the Maharashtra Agricultural Lands
(Ceiling of Holdings) Act, 1961 (hereinafter referred to as
the Principal Act) as amended by the Maharashtra Agricultur-
al Lands (Lowering of Ceiling of Holdings) (Amendment) Act,
1972 (hereinafter referred to as the Maharashtra Act 21 of
1975), the Maharashtra Agricultural Lands (Lowering of
Ceiling of Holdings) (Amendment) Act, 1975 (hereinafter
referred to as "’Maharashtra Act 47 of 1975 ) and the
Maharashtra Agricultural Lands (Ceiling of Holdings) (Amend-
ment) Act, 1975 (hereinafter referred 10 as Maharashtra Act
2 of 1976). The Principal Act was enacted
3--206SCI/77
796
by the Maharashtra Legislature in implementation of the
Directive Principles of State Policy contained in clauses
(b) and (c) of Art. 39 of the Constitution. It imposed a
maximum ceiling on the holding of agricultural land in the
State of Maharashtra and provided for the acquisition of
land held in excess of the ceiling and for the distribution
of such excess land to landless and other persons. During
the subsequent years, various amendments were made in the
Principal Act from time to time and the Principal Act, as
amended upto that date, was included in the Ninth Schedule
by the Constitution (Seventeenth Amendment) Act, 1964.
Thereafter certain further amendments were made in the
Principal Act and the amending Acts were also included in
the Ninth Schedule as a result of the Constitution (Thirty-
ninth Amendment) Act, 1975. Then came three major amending
Acts which, according to the appellants, introduced the vice
of unconstitutionality in the Principal Act. Maharashtra
Act 21 of 1975 effected radical amendments in the Principal
Act by lowering ceiling on agricultural holding and creating
an artificial family unit for fixing ceiling on holding of
agricultural land. This amending Act was followed by Maha-
rashtra Act 47 of 1975 and Maharashtra Act 2 of 1976 which
affected certain further changes in the Principal Act but
these are not very material for the purpose of the present
appeals. Since these three amending Acts were enacted after
the Constitution (Thirty-ninth Amendment) Act, 1975, they
were included in the Ninth Schedule along with certain
other enactments by the Constitution (Fortieth Amendment)
Act, 1976. The result was that the Principal Act, as amend-
ed by all the subsequent amending Acts including Maharashtra
Act 21 of 1975, Maharashtra Act 47 of 1975 and Maharashtra
Act 2 of 1976 was protected against invalidation under Art.
31-B.
The appellants are landholders in the State of Maharash-
tra and since the effect of the provisions of the Principal
Act, as amended by Maharashtra Act 21 of 1975, Maharashtra
Act 47 of 1975 and Maharashtra Act 2 of 1976 was to expro-
priate a part of the lands belonging to them, they pre-
ferred writ petitions in the High Court of Bombay challeng-
ing the constitutional validity of the Principal Act as
amended by these amending Acts on various grounds. It is
not necessary for the purpose of the present appeals to set
out the different grounds on which the constitutional chal-
lenge was based, since none of these grounds has been
pressed before us save one based on contravention of the
second proviso to cl. (1) of Art. 31A. the only contention
that has been urged before us on behalf of the appellants is
that the Principal Act, as it stands after its amendment by
Maharashtra Act 21 of 1975, Maharashtra Act 47 of 1975 and
Maharashtra Act 2 of 1976 is void, in so far as it creates
an artificial family unit and fixes a ceiling on holding of
land by such family unit, since it is violative of the
second proviso to. clause (1) of Art. 31A and is not saved
by the immunising provision enacted in Art. 31-B. This
contention was also urged before the High Court but it was
negatived on the ground that Art. 3lB afforded complete
immunity to the provisions of the Principal Act. We may
make it clear at this stage that for the sake of conven-
ience, when we hereafter refer to the Act, we mean the
Principal Act as amended by Maharashtra Act 21 of 1975,
Maharashtra Act 47 of 1975 and Maharashtra Act 2 of 1976.
797
The appellants in the present appeals assail this view taken
by the High Court and the only question which, ’therefore,
arises for consideration is as to. whether the impugned Act,
in so far as it creates an artificial concept of family unit
for fixing ceiling on holding of land by such family unit,
is in conflict with the second proviso to clause (1) of
Article 31A and if it is, whether it is protected under
Article 31-B ? Though logically the first part of the.
question as to infraction of the second proviso. to clause
(1 ) of Article 31A should receive our consideration earlier
in point of time, it would be convenient first to examine
the second part of the question, for if we are of the
view that Article 31-B immunises the Principal Act against
attack on the ground of violation of the second proviso to
Article 31A, it would become unnecessary .to consider wheth-
er in fact there is any infraction of the second proviso to
clause (1) of Article 31A. But before we examine the scope
and ’applicability of Article 3lB in the present case, it
would be desirable to refer to a few relevant provisions of
the Principal Act.
The Preamble and the long title of the Principal Act
show that it was enacted to impose a maximum ceiling on the
holding of agricultural land in the State of Maharashtra and
to provide for the acquisition of land held in excess of
ceiling and for the distribution of such land to landless
and other persons with a view to. securing the distribution
of agricultural land in a manner which would best subserve
the common. good of the people. Section 2 contains various
definitions of which only one is material, namely that
contained in subsection (11A). That sub-section defines
family unit to mean a family unit as explained in section 4.
Section 3 imposes a prohibition on holding of land in excess
of ceiling area and so far as material, it reads as follows:
"3(1 ) Subject to the provisions of this Chapter and
Chapter III, no person or family unit shall, after the com-
mencement date, hold land in excess of the ceiling area, as
determined in the manner hereinafter provided.
(2) All land held by a person, or as the case may be,
a family. unit whether in this State or any other part of
India in excess of the ceiling area, shall, notwithstanding
anything contained in any law for the time being in force
or usage, be deemed to.be surplus land, and shall be dealt
with in the manner hereinafter provided for surplus land.
In determining surplus land from the holding of a per-
son, or as the case may be, of a family unit, the fact that
the person or any member of the family unit has died (on or
after the commencement date or any date subsequent to the
date on which the holding exceeds the ceiling area, but
before the declaration of surplus land is made in respect of
that holding) shall be ignored; and accordingly, the surplus
land shall be determined as if that person, or as the case
may be, the member of a family unit had not died."
798
What shall be regarded as land held by a family unit is
laid down in section 4, sub-section ( 1 ) which provides:
"(4) All land held by each member of a
family unit, whether jointly or separately,
shall for the purposes of determining the
ceiling area of the family unit be deemed to
be held by the family unit.
Then there is an explanation to this sub-
section which explains a ’family unit’ to
mean:
"(a) a person and his spouse (or more than
one spouse) and their minor sons and
minor unmarried daughters; if any; or
(b) where any spouse ’is dead, the
surviving spouse or spouses, and the minor
sons and minor unmarried daughters; or
(c) where the spouses are dead, the
minor sons and miner unmarried daughters of
such deceased spouses."
Section 5, sub-section (1) read with the First Schedule
provides for different ceilings for different classes of
lands in the various districts and talukas of the State and
sub-sections (2) and (3) lay down the method of computation
of the ceiling area where different classes of lands are
held by a person or a family Unit. Then follows section 6
which is in the following terms:
"Where a family unit consists of mem-
bers which exceed five in number, the family
unit shall be entitled to hold land exceeding
the ceiling area to the extent of one-fifth of
the ceiling area for each member in excess of
five, so however that the total holding shall
not exceed twice the ceiling area, and in such
case, in relation to the holding of such
family unit, such area shall be deemed to be
the ceiling area."
This is followed by sections 8 to 11A which deal with re-
strictions on transfers and acquisitions and consequences of
contraventions and sections 12 to 21A which provide inter
alia for holding an enquiry for determination of land held
in excess of the ceiling area and making of a declaration by
the Collector stating his decision on the total area of land
which is in excess of the ceiling area and the area, de-
scription and full particulars of the land which is delimit-
ed as surplus land. Sub-section (4) of section 21 provides
that us soon as may be after the announcement of the decla-
ration, the Collector shall take in the prescribed manner
possession of the land which is delimited as surplus and the
surplus land shall, with effect from the date on which
possession is taken, be deemed to be acquired by the State
Government for the purposes of the Act and shall accordingly
vest, without further assurance and free from all encum-
brances, in the State Government. Sections 21 to 26 provide
for determination and payment of compensation for the sur-
plus land acquired by the State Government. Then follow
provisions in sections 27 to 29 in regard to distribution of
surplus land. These provisions require the State
799
Government to distribute the surplus land. in certain order
of priority with a view. to carrying out the purposes of the
legislation. Sections 30 to 36 lay down the procedure for
holding inquiries under the Act and also provide for appeal
mechanism. These are followed by certain miscellaneous
provisions in sections 37 to 49 which are not material for
the purpose of the present appeals.
It will be seen from this brief resume of the relevant
provisions of the Act that there are two units recognised by
the Act for the purpose of fixing ceiling on holding of
agricultural land. One is ’person’ which by its definition
in section 2, sub-section (22) includes a family and ’fam-
ily’ by virtue of section 2, sub-section (11 ) includes a
Hindu Undivided family and in the case of other persons, a
group or unit the members of which by custom or usage, are
joint in estates of possession or residence, and the other
is ’family unit as defined in ,the Explanation to section 4
sub-section (1). So far as the applicability of the Act to.
a ’person’ is concerned, there is no conceptual difficulty,
for any person, natural or artificial, can hold land and if
the land held by such person is in excess of the ceiling
laid down in section 5, sub-section (1 ) read with the First
Schedule, the surplus land would vest in the State Govern-
ment. But the Act has created an artificial ’family unit’
and a person and his spouse and their minor sons and minor
unmarried daughters are clubbed together for the purpose of
constituting a family unit and all lands held by each member
of the family unit, whether jointly or separately, are
aggregated together and by a fiction of law deemed to be
held by the family unit. We have described the family unit
as contemplated in the Act as an artificial legal conception
because in quite a few cases it would be different from the
family as known in ordinary parlance: the latter would
include ’even major sons and unmarried daughters which the
former by its definition does not. It is clear from the
scheme of the Act that for the purpose of determining wheth-
er land is held in excess of the ceiling area, a family unit
is taken as a unit and the limitation of ceiling area is
applied in relation to the land deemed to be held by such
family unit and in such a case, each individual member of
the family unit is not treated as a separate unit for the
purpose of applicability of the limitation of ceiling. The
land held by each member of the family unit is fictionally
treated as land held by the family unit and to the aggregate
of such land which is deemed to be held by the family
unit, the limitation of the ceiling area is applied.
This feature of clubbing together the land held by each
member of family unit for the purpose of applying the limi-
tation of ceiling. area, it may be noted, was introduced by
the amendments made ’by Maharashtra Act 21 of 1976 almost
fourteen years after the Principal Act was enacted and it is
interesting to notice the reasons why it had to be done.
The necessity for wide ranging radical land reforms in
order to improve our rural economy was acutely realised
when, on attaining independence, we became free to mould
our destinies. With that end in view, immediately after
independence, the legislatures of the country started enact-
ing laws for bringing about agrarian reform as a part of the
process of socio-economic reconstruction. The imposition of
ceiling on agricultural holdings was found necessary as a
part
800
of the scheme of agrarian reform because it was calculated
to remove undue balance in society resulting from landless
class on the one hand and concentration of land in the hands
of a few on the’ other. The concept of socio-economic
justice embodied in the Constitution in fact rendered the
imposition of ceiling inevitable, as this step was symbolic
of new social ideas.(1) The growth of monopolistic ten-
dencies in land ownership had to be arrested, if the optimum
area was to be made available to the largest number of
people. The Panel on Land Reform set up by the Planning
Commission in 1955, therefrom, unanimously accepted the
principle that there should be an absolute limit to the
amount of land which any individual might hold and .observed
that the policy of imposition of ceiling should be able to.
make contribution towards achieving the following objec-
tives: (1) meeting the widespread desire to possess land;
(ii) reducing glaring inequalities in ownership and use of
land; (iii) reducing inequalities in agricultural income and
(iv) enlarging the sphere of selfemployment. The Second
Five Year Plan also pointed out:
"In the conditions of India large dis-
parities in the distribution of wealth and
income are inconsistent with economic progress
in any sector. This consideration applies
with even greater force land. The area of
land available for cultivation is necessarily
limited. In the past rights in land were the
principal factor which determined both social
status and economic opportunity for different
groups in the rural population.
For building up a progressive rural
economy, it is essential that dissimilarities
in the ownership of land should be greatly
reduced.
and added that this step would go a long
way
"----to afford opportunities to. land-
less sections of the rural population to gain
in social Status and to feel a sense of
opportunity equally with other sections of
the community."
It is emphatic that in the conditions which prevail in rural
India, the possession of some land in itself would be an
immunity against abject poverty and would ensure for the
owner some minimum resources to fall back upon and his
economic and social condition would also improve on account
of his owning some land which he can call as his own. The
Agricultural Labour Enquiry conducted in the 1960s showed
that the average of per capita income of an agricultural
labourer with land was much more than the average or per
capita income of an agricultural labourer without land.
The policy of imposing ceiling on agricultural holdings
was, therefore, initiated in the country with the twin
objectives of changing the skewed distribution of agricul-
tural land ownership in the country and making some land
available for distribution among the landless. It was in
implementation of this policy that the Principal Act was
passed by the Maharashtra Legislature in 1961. The ceiling
which was initially fixed was found to be rather high and it
had, therefore, to be lowered by
(1) India--Progress of Land Reforms 1955, p. 19.
801
subsequent amendments. But until the enactment of Maharash-
tra Act 21 of 1976, ceiling was made applicable only to
holding of agricultural at lands by individuals. However,
it was felt that if the ceiling law was to be really effec-
tive, it was necessary to take the family as a unit for the
purpose of applying the ceiling. There were two main rea-
sons which inclined the legislature to this view. One was
that, in the context of the social and cultural realities of
Indian rural life, "family is the real operative unit in
land ownership as in land management" and, therefore, in
the fixing of the ceiling, the aggregate area held by all
the numbers of the family should be taken into
account"(1) and the other was that taking the family as a
unit and imposing ceiling on the aggregate land held by all
the members of the family acted as a disincentive to effect
mala fide transfers in the names of close relations such as
wife, minor sons and unmarried daughters with a view to
bringing the holdings within the ceiling and operated to
nullify such transfers where they had been effected with a
view to circumventing the ceiling imposed on land holding.
Maharashtra Act 21 of 1975, therefore, introduced the con-
cept of family unit and fixed ceiling on holding of agricul-
tural land by the family unit. The question is whether the
Act, in so far as it makes this radical provision, is pro-
tected under Article 31-B, even if it is found to violate
the second proviso to clause (1) of Article 31A.
The determination of this question turns on the true
interpretation of Article 31-B and its applicability in
relation to the second proviso to clause (1) of Article
31A. Article 31A, clause (1) provides that, notwithstand-
ing anything contained in Article 13, no law falling within
any of the categories specified in sub-clauses (a) to (e),
shall be deemed to be void on the ground that it is incon-
sistent with or takes away. or abridges any of the rights
conferred by Article 14, Article 19 or Article 31.Then
follow two provisions which are in the following terms:
"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, has
received his assent ;
Provided further than where any law makes
any provision for the acquisition by the State
of any estate and where any land comprised
therein is held by a person under his per-
sonal cultivation, it shall not be lawful for
the State to acquire any portion of such land
as is within the ceiling limit applicable to
him under any law for the time being in
force or any building or structure stranding
thereon or appurtenant thereto, unless the
law relating to acquiring of such land,
building or structure, provides for payments
of compensation at a rate which shall not be
less than the market value thereof."
Article 31A together with the first proviso was added
in the Constitution by the Constitution (First Amendment)
Act, 1951, while the (1) Report of the Committee on ’Size of
Holdings’ set up by the Panel on Land Reforms.
802
second proviso was introduced by the Constitution (Seven-
teenth Amendment) Act, 1964. Article 31-B was .also intro-
duced in the Constitution at the same time as Article 31A
and it reads as follows:
"31-B. Without prejudice to. the
generality of the provisions contained in
article 31A, none of the Acts and Regulations
specified in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void,
or ever to have become void, on the ground
that such Act, Regulation or provision is
inconsistent with, or takes away of abridges
any of the rights conferred by, any provisions
of this Part, and notwithstanding any judg-
ment, decree or order of any court or tribunal
to the contrary, each of the said Acts and
Regulations shall, subject to the power of any
competent Legislature to repeal or amend it,
continue in force."
The argument of the appellants was that on a true con-
struction of the language of Article 31-B a post-Constitu-
tion enactment such as the Act, is protected from invalida-
tion only when it rakes away or abridges any of the rights
conferred by any provision of Part III and not when it
merely transgresses a restriction on legislative competence
imposed by any provision of that part and is, therefore,
inconsistent with any provision. The later ground of vali-
dation during curing generally any inconsistency with any
provision of Part III is available only in case of pre-
Constitution legislation. What is, therefore, to be seen in
the present case is whether any right is conferred by the
second proviso to clause (1) of Article 31A which has been
taken away or abridged by the Act, for then alone can the
Act which is a post-Constitution enactment, earn the immuni-
ty given by Article 31-B. The appellants contended that the
second proviso to clause (1) of Article. 31A does not confer
any fundamental right but merely imposes a limitation on the
legislative competence of the legislature and, therefore,
Article 31-B does not exonerate the Act from its obligation
to conform with the requirement of the second proviso to
clause (1 ) of Article 31A. We do not think this contention
is well founded. It is plainly erroneous. It flies in the
face of the express language of Article 31-B and also ig-
nores the true meaning and effect of the second proviso to
clause ( 1 ) of Article 31 A.
Whilst interpreting Article 31-B it is necessary to bear
in mind the object and purpose of the enactment of that
Article by the Constitution (First Amendment) Act, 1951.
This article was introduced in the Constitution within
almost eighteen months of the commencement of the Constitu-
tion, because it was found that agrarian reform legislation
was running into rough weather and the policy of agrarian
reform was being frustrated. Without a dynamic programme
of agrarian reform, it was not possible to change the face
of rural India and to upgrade the standard of living of the
large masses of people living in the villages. In fact the
promise of agrarian reform is implicit in the Preamble and
the Directive Principles of State Policy and it is one of
the economic foundations of the Constitution. It was,
therefore felt that laws enacted for the purpose of bringing
about agrarian reform in its widest sense-agrarian reform
which would be
803
directed against gross inequalities in land ownership,
disincentives to production and desparate backwardness of
rural life and which would cover not only abolition of
intermediary tenures zamindaris and the like but restructur-
ing of village life itself taking in its broad embrace the
entire rural population--should be saved from invalidation.
It was with this end in view that Article 31-B was intro-
duced in the Constitution along with Article 31A. The
object ’and purpose of introducing Articles 31A and 31-B
was to protect agrarian reform legislation from invalida-
tion. We shall consider the provisions of Article 31A a
little later when we examine the true meaning and effect
of the second proviso to clause (1) of that ,article. But
so far as Article 31-B is concerned, it is clear on its
plain terms that it saves from invalidation an enactment
specified in the Ninth Schedule even if it happens to be
"inconsistent with or takes away or abridges any of the
rights conferred by, any provisions, of Part III". It is
immaterial whether such enactment is inconsistent with any
provisions of Part III or takes away or abridges any of the
rights conferred by any such provisions, for both infirmi-
ties are cured. by Article 31-B. The words "such Act,
Regulation or provision is inconsistent with or takes away
or abridges any of the rights conferred by, any provisions
of this Part" in .Article 31-B are clearly an echo of the
language of clauses (1) and (2) of Article 13 and they have
obviously been employed because the enactment specified in
the Ninth Schedule may be pre-Constitution as well as post-
Constitution laws. But it would not be right to introduce
an artificial dichotomy in Article 31-B by correlating the
first part of the expression, namely, "is inconsistent
with--any’ provisions, of this Part" and confining its
applicability to pre-Constitution legislation and correlat-
ing and confining the applicability of the other part of the
expression, namely, "takes away or abridges any of the
rights conferred by, any provisions of this Part to post-
Constitution legislation. That would be a highly unnatural
construction unjustified by the language of Article 31-B.
Both the parts of the expression, on a plain natural con-
struction of the language of Article 31-B, apply equally
to. post-Constitution legislation as welt as pre-Constitu-
tion legislation. It must be remembered that the aim and
objective of Article 31-B is to make the most comprehensive
provision for saving agrarian reform legislation from
invalidation on the ground of infraction of any provision in
Part 111 and it must, therefore. be so interpreted as to
have the necessary sweep and coverage. It is an elemen-
tary rule of construction that a statutory provision must
always be interpreted in a manner which would suppress the
mischief and advance the remedy and carry out the object and
purpose of the legislation. Moreover, we must not forget.
as pointed out by Mr. Justice Holmes, that it is the Con-
stitution that we are expanding. Our Constitution has a
social purpose and an economic mission and every article of
the Constitution must. therefore. be construed so as to
advance the social purpose and fulfil the economic mission
it seeks to accomplish. The Court must place an expansive
interpretation on the language of Article 31-B so as to
carry out the object and purpose of enacting that article.
We must, in the circumstances, hold that Article 31-B is
sufficiently wide to protect legislation not only where it
takes away or abridges any the fights conferred by any
provisions of Part III, but also where it
804
is inconsistent with any such provisions. It must follow a
fortiori that even if the second proviso to clause (1) of
Article 31A is construed as not conferring any fundamental
right but merely imposing a restriction on legislative
competence, the Act, in so far as it contravenes or is
inconsistent with the second proviso to clause (1) of arti-
cle 31A would still be saved from invalidation by Article
31-B.
But we are clearly of the view that the second proviso to
clause(1) of Article 31A does confer a fundamental
right. This conclusion is inevitable if we look at the
conspectus of the provisions contained in Article 31 and
31A. These provisions occur under the heading "Right to
Property" and they define and delimit the right to
property guarantied under Part III of the Constitution.
Article 31, clause (1) protects property against deprivation
by executive action which is not supported by law. It is
couched in negative language, but, as pointed out by S.R.
Das, J., in State of Bihar v. Kameshwar Singh(1)’’ it con-
fers a fundamental right in so far as it protects private
property from State action. The only limitation put upon
the State action is the requirement that the authority of
law is pre-requisite for the exercise of its power to de-
prive a person of his property. This confers some protec-
tion on the owner, in that, he will not be deprived of
his property save by authority of law and this protection is
the measure of the fundamental right. It is to emphasise
this immunity from State action as a fundamental right
that’ the clause has been worded in negative
language".Article 31, clause (1) thus, by giving limited
immunity from State action, confers a fundamental right.
Clause (2) of Article 31 then proceeds to impose limitation
on the exercise of legislative power by providing that no
property shall be compulsorily acquired or requisitioned
save for a public purpose and save by authority of law which
provides for acquisition or requisitioning of property for
an amount which may be fixed by such law or which may be
determined in accordance with such principles and given in
such manner as may be specified in such law. This clause is
also couched in negative language, but it confers a funda-
mental right of property on an individual by declaring that
his property shall not be liable to be compulsorily acquired
or requisitioned except for a public purpose and the law
which authorises such acquisition or requisitioning must
provide for "payment of an amount which may be either fixed
by such law or which may be determined in accordance with
the principles and given in the manner specified in such
law". The limitation imposed on the power of the legisla-
ture to make a law authorising acquisition or requisitioning
of property is the measure of the fundamental right con-
ferred by the clause. It was for this reason pointed out
by this Court in R.C. Copper v. Union of India(2):
"The function of the two clauses--clauses (1) and (2) of
Article 31 is to impose limitations on the power of the
State and to declare the corresponding guarantee of the
individual to his right to property. Limitation on the
power of the State and the guarantee of right are plainly
complementary" (Emphasis supplied). Article 31A
(1) [1952] S.C.R. 889 at 988.
2 ) [1970] 3 S.C.R. 530 at 569.
805
carves out an exception to the applicability of Article
31--and also Articles 14 and 19--and immunises certain
categories of agrarian reform legislation from attack on
the ground that they violate any, of these three articles.
Even if any agrarian reform legislation falling within the
specified categories infringes Articles 14, 19 and 31, it
would not be invalid. Having regard to the high objective
of bringing about agrarian reform in the country with a view
tO improving the life conditions of the common man, such
agrarian reform legislation is not required to meet the
challenge of any of these three articles. But, in order
to earn this immunity, the first proviso requires that such
agrarian reform legislation when made by a State must re-
ceive the assent of the President. That is a condition for
the applicability of the exception contained in Article 31
A. Then follows the second proviso which enacts an exception
to this exception. It says that even where a law makes any
provision for acquisition by the State. of any estate and
thus falls within one of the categories" specified in Arti-
cle 31A, it would not qualify for immunity under me provi-
sions of that article, if it seeks to acquire any portion of
the land held by a person under his personal cultivation
which is within the ceiling limit applicable to him under
any law for the time being in force and such a law, in order
to be valid, would have to provide for payment of compensa-
tion at a rate which shall not be less than the market value
of the land sought to be acquired. This provision is also
couched in negative language like clauses (1) and (2) of
Article 31 and it imposes a fetter on the exercise of the
legislative power of the State by providing that the State
shall not be entitled to make a law authorising acquisition
of land held’ by a person under his personal cultivation
within the ceiling limit applicable to him, unless the law
provides for payment of compensation at a rate not less than
the market value. This limitation on the legislative power
of the State is the measure of the fundamental right con-
ferred on the owner of the land. It is by imposing limita-
tion on the exercise of legislative power that protection is
given to the owner in respect of the land held by him under
his personal cultivation within the ceiling limit. Restric-
tion on legislative competence and conferment of right on
the holder of land within the ceiling limit are complemen-
tary to each other. They are merely two different facets of
the same provision. What is limitation of legislative power
from the point of view of the State is conferment of right
from the point of view of the holder of land within the
ceiling limit. The former secures the latter. The
second proviso in effect guarantees protection to
the holder against acquisition of that portion of his land
which is within the ceiling limit except on payment of
the market value of such land. It will, thus, be seen that
the second proviso clearly confers a right of property on a
person holding land under his personal cultivation. This
interpretation was, however, assailed by the appellants on
the ground that it would convert the second proviso. into a
substantive provision and that would be contrary to the well
recognised canon of construction that a proviso must be read
so. as to. carve out from the main provision something which
would otherwise fall within it. Now, it is true that the
proper function of a proviso is to except or qualify some-
thing enacted in the substantive clause, which, but for the
provision would be within that clause but ultimately, as
pointed out by this
806
Court in Ishverlal Thakorelal Almaula v. Motibai Naglib-
hai(1) "--the question is one of interpretation of’ the
proviso: and there is no rule that the proviso must always
be restricted to the ambit of the main enactment". Here,
the intention of the legislature in enacting the second
proviso is very clear and that is to ensure payment of full
market value as compensation to a person in personal culti-
vation of his land where a portion of the land within the
ceiling limit applicable to him is acquired by the State
Government. But for the second proviso, even if a law
authorising acquisition of land within the ceiling limit did
not provide for payment of compensation, it would be pro-
tected from invalidation under Article 31A. That was not a
result which the Parliament favoured. Parliament was anx-
ious to protect the interest of the small holder, the common
man who holds land within the ceiling limit and therefore
enacted the second proviso requiring that a law which
permits acquisition of land within the ceiling limit must
provide for compensation at a rate not less than the market
value. The second proviso in fact restores the right of
property with added vigour in case of small holdings of
land. it goes much further than Article 31, clause (2) and
provides a larger protection, in that, clause (2) of Article
31. merely requires that a law authorising acquisition
should fix an amount to be paid for the acquisition or
specify the principles in accordance with which the amount
may be determined and the manner in which it may. be
given--and this may be very much less than the market
value--while the second proviso insists that at the least,
full market value must be paid for the acquisition. Thus,
there can be no doubt that the second proviso confers a
right--and this right is higher than the one under clause
(2) of Article 31---on a person in respect of such portion
of land under his personal cultivation as is within the
ceiling limit applicable to him and if the Act, by creating
an artificial concept of a family unit and fixing ceiling on
holding of agricultural land by such family unit, enables
land within the’ ceiling limit to be acquired without
payment of full market value, it would be taking away or
abridging the right conferred by the second proviso. In
that event too, it would be protected by Article 31-B since
it is included in the Ninth Schedule.
Before we part with this contention based on Article
31-B, we must refer to one other argument advanced on behalf
of the appellants with a view to repelling the. applicabili-
ty of Article 31-B. The appellants leaned heavily on the
Explanation to. section 3 of the Constitution (Seventeenth
Amendment), Act, 1964 and urged that this Explanation shows
that an acquisition made in contravention of the second
proviso to clause (1) of Article 31A is void and does not
have the protection of Article 31-B, even if the law under
which such acquisition is made is included in the Ninth
Schedule. We do not think this contention is well rounded
and in fact not much argument is needed to negative it. The
Constitution (Seventeenth Amendment) Act, 1964 was enacted
by the Parliament with a view to. expanding the scope of
Article 31A by enlarging the meaning of the expression
(1) [1966] 1 S.C.R. 367 at 373.
807
’estate’ ’and while doing so, the parliament added the
second proviso to clause (1) of Article 31A. The Ninth
Schedule was also amended by including certain State enact-
ments relating to agrarian reform in order to remove any
uncertainty or doubt that may arise in regard to their
validity. One of the State enactments included in the Ninth
Schedule by this amendment was the’ Rajasthan Tenancy Act,
1955 which was added as Entry 55. Section 3 which amended
the Ninth Schedule carried the following Explanation:
"Explanation.--Any acquisition made
under the Rajasthan Tenancy Act, 1955 (Rajas-
than Act 111 of 1955), in contravention of the
second proviso to clause (1) of article 31A
shall, to the extent of the contravention, be
void."
This Explanation, contended the appellants, explained
the scope and effect of the inclusion of an enactment in
the Ninth Schedule vis-a-vis contravention of the second
proviso to clause (1) of Article 31A and indicated the
parliamentary intent that such inclusion is not intended to
save the enactment from the invalidating consequence of the
contravention. It was urged that, by taking the illustra-
tion of the Rajasthan Tenancy Act., 1955, the Explanation
sought to explain and clarify that Article 31-B is not
intended to be construed as validating contravention of the
second proviso to clause (1 ) of Article 31A. This
contention, which seeks to treat the Explanation as illus-
trative in character, is clearly fallacious. It is true
that the orthodox function of an explanation is to explain
the meaning and effect of the main provision to which it is
an explanation and to Clear up any doubt or ambiguity in
it. But ultimately it is the intention of the legislature
which is paramount and mere use of a label cannot control or
deflect such intention. It must be remembered that the
legislature has different ways of expressing itself and in
the last analysis the words used by the legislature alone
are the true repository of the intent of the legislature
and they must be construed having regard to the context and
setting in which they occur. Therefore, even though the
provision in question has been called an Explanation, we
must construe it according to its plain language and not on
any a priori considerations. The Explanation does no more
than provide that so far as the Rajasthan Tenancy Act, 1955
is concerned, if any acquisition is made under it
in contravention of the second proviso to clause (1) of
Article 31A, it shall, to the extent of the contravention,
be void. Obviously, this Explanation was rendered neces-
sary, because otherwise, acquisition under the Rajasthan
Tenancy Act, 1955, even if in contravention of the second
proviso to clause (1) of Article 31A, would have been valid
under Article 31-B and that result the Parliament did not
wish to produce. It was manifestly not the intention of
the Parliament that acquisition made under any enactment
included in the Ninth Schedule should be void where it
conflicts with the second proviso to clause (1) of Article
31A and that Article 31-B should not protect it from inval-
idation. If such had been the intention of the Parliament,
it would have been expressed in clear and unambiguous terms
by providing that an acquisition made under any enactment
included in the Ninth Schedule, in contraven-
808
tion of the second proviso to clause (1) of Article 31A
shall, to the extent of the contravention, be void. Parlia-
ment would not have resorted to the device of picking out
one legislation from the enactments specified in the Ninth
Schedule and declared only in relation to that legislation
that any acquisition made under it in contravention of the
second proviso to clause ( 1 ) of Article 31A shall be void.
The Explanation, in our view, far from supporting the con-
struction contended for on behalf of the appellants, mili-
tates against it. We may also in the passing refer to the
view taken by the Allahabad High Court in regard to the
true meaning and effect of Article 31-B in relation to the
second proviso to clause (1 ) of Article 31A. The Alla-
habad High Court took the view in a decision given on 14th
November, 1975 which is the subject-matter of Civil Appeal
No. 1307 of 1976 in this Court that the second
proviso to clause (1) of Article 31A places restriction
only on executive action and not on legislative action and
since Article 31-B validates merely enactments specified
in the Ninth Schedule: and not the executive action taken
under those enactments, the placing of the Act in the
Ninth Schedule does not dispense with the requirement that
executive action taken by the State in the shape of acqui-
sition under the Act should conform to. the restriction set
out in the second proviso to clause (1) of Article 31A.
This view taken by the Allahabad High Court is a little
difficult to understand. The protection afforded by the
second proviso to clause (1) of Article 31A is undoubtedly
against acquisition by the. State but this protection is
secured by imposing limitation on exercise of legislative
power and it is the law under the authority of which the
acquisition is made which has to conform to the requirement
of this proviso. If the law authorising acquisition does
not conform with this requirement, it would be void and
the acquisition made under it would be unlawful, but for
Article 31-B. It is indeed difficult to see how the law
authorising acquisition can be valid and yet acquisition
mane under it can be void as offending the second proviso to
clause (1) of Article 31A. The view taken by the Allahabad
High Court is plainly erroneous and must be rejected.
We are, therefore, of the view that even if the Act,
in so far as it introduces an artificial concept of a
family unit and fixes ceiling on holding of agricultural
land by such family unit, is violative of the second
proviso to clause (1) of Article 31A, it is protected by
Article 31-B by reason of its inclusion in the Ninth
Schedule. We may point out that the same view has been
taken by this Court in a decision given in regard to the
constitutional validity of the Gujarat Agricultural Land
Ceiling Act (27 of 1961) in Hasmukhlal Dayabhai v. State of
Gujarat(1).
This view taken by us in regard to the applicability of
Article 31-B renders it unnecessary to consider whether in
fact the Act is violative of the second proviso, to clause
(1) of Article 31A. But
(1) (1977) 1 S.C.R. 103.
809
since full and detailed arguments were advanced before us on
this question, we do not think it would be right if we
refrain from expressing our opinion upon it. We fail to see
how any violation of the seconded proviso. to clause (1) of
Article 31A is at all involved in so far as the Act creates
an artificial concept of a family unit and fixes ceiling on
holding of agricultural land by such family unit. The
inhibition imposed by the second proviso. to clause (1) of
Article 31A is against acquisition by the. State of any
portion of land held by a person under his personal cultiva-
tion which is within the ceiling limit applicable to; him,
unless the law relating to such acquisition provides for
payment of full market value as compensation. There are two
basic conditions which must exist before this inhibition is
attracted. One is that land must be. held by a person under
his personal cultivation and the other is that there must be
a ceiling limit applicable to such person. Where these two
conditions are satisfied, the State is prohibited from
acquiring any portion of the land within the ceiling limit
unless the law authorising such acquisition provides for
payment of compensation at a rate not less than the market
value. Now in the present case, the Act has created an
artificial concept of a family unit and aggregated the land
held by each member of the family unit for the purpose of
applying the limitation of ceiling areas. It could not be
disputed by the appellants that the State Legislature had
legislative competence to do so. The only argument advanced
on behalf of the appellants was that this device adopted by
the State Legislature of clubbing together the land held by
each member of the family unit and supplying the limitation
of ceiling area to the aggregation of such land, would in
many cases have the effect of taking away without payment of
full market value as compensation the land held by the
wife or minor son minor unmarried daughter, even though it
is within the ceiling area applicable to the wife or minor
son or minor was married daughter and hence the Act, in so
far as it adopted this device, falls foul of the second
proviso to clause (1) of Article 31A. But this argument
ignores the scheme determination of ceiling area adopted
in the Act. There are, as already pointed out by us, two
units recognised by the Act for the purpose of fixing ceil-
ing on holding of agricultural land. One is ’person’ and
the other is ’family unit’. Where there is a family unit as
defined in the Explanation to clauses (1) to section 4., it
has to be taken as a unit for the purpose of determining
whether land is held in excess of the ceiling area and for
this purpose all land held by each member of the family
unit, whether jointly or separately, is required to be
aggregated and it is deemed to be held by the family unit.
There, an individual member of the family unit is not re-
garded as a unit for the purposes of applying the limitation
of ceiling area. The ceiling limit in such a case is ap-
plicable only to the family unit and not to an individual
member of the family unit. It would not, therefore, be
possible to. say in the case of an individual member of the
family unit that, when any land held by him under his per-
sonal cultivation is taken over by the State under the Act
by reason of the land deemed to be held by the family unit
being in excess of the ceiling limit applicable to the
family unit, the acquisition is of any land "within the
ceiling limit
810
applicable to him" and hence in such a case there would be
no question of any violation of the provision enacted in the
second proviso to clause (1) of Articles 31A in so far’ as
the land held by him is concerned. It may be that by reason
of the creation of an artificial concept of a family unit
and the clubbing together of the land held by each member of
the family unit, one or more of the members of the family
unit may lose the land held by them, but that cannot be
helped because, having regard to the social and economic
realities of our rural life and with a view to nullifying
transfers affected in favour of close relations for the
purpose of avoiding the impact of ceiling legislation, a
family unit has been taken by the State Legislature as a
unit for the applicability of the limitation of ceiling
area. It is possible that by reason of this provision some
genuine holders of land may suffer, some women and minors
may lose the land legitimately belonging to them, but that
is inevitable when major schemes of agrarian reform are
adopted for wiping out socio-economic injustice. It must
be remembered that the legislature can only deal with the
generality of cases and it cannot possibly make provision
for every kind of exceptional situation. Otherwise the law
would be as loaded with qualifications and exceptions that
it will cases to be intelligible and become of fertile
source of mischief. Moreover, it is entirely for the legis-
lature to decide what policy to adopt for the purpose of
restructuring the agrarian system and the Court cannot
assume the role of an economic adviser or censor competent
to pronounce upon the wisdom of such policy. That would be
a matter outside the orbit of judicial review, being a blend
of policy, politics and economics ordinarily beyond the
expertise and proper function of the Court. We must accord-
ingly hold that the Act does not conflict with the second
proviso to clause (1) of Article 31A and cannot be held to
be bad on that account.
The result is that the appeals fail and are dismissed
with costs. There is to be only one set of costs. There is
also a batch of special leave petitions before us and since
they raise only one question, namely that relating to the
constitutional validity of the Act, they too must be reject-
ed.
C.A. 1307 of 1976.
BHAGWATI, J. This appeal by the State of Uttar Pradesh
is directed against a judgment delivered bY a Division Bench
of the High Court of Allahabad answering four questions
referred to it for its opinion by a Single Judge of that
High Court in Civil Miscellaneous Writ Petition No. 9257
of 1975. These four questions arise out of challenge to
the constitutional validity of certain provisions of U.P.
Act No. 1 of 1971 as amended by U.P. Act No. 18 of 1973 and
U.P. Act No. 2 of 1975 (hereinafter referred to. as the
amended U.P. Imposition of Ceiling on Land Holdings Act) and
they are in the following terms:
"1. Whether the acquisition of land under
personal cultivation as surplus after ignoring
sale deed under section 5(6) of the U.P.
Imposition of Ceiling on Land Holdings Act
is violative of second Proviso to Article 31
-A( 1 ) of the Constitution ?
811
2. Whether ignoring transfer made after
24th January, 1971, other than those excepted:
under Proviso to section 5(6) of the both in
relation to the determination of ceiling and
surplus area, would amount to acquiring any
portion of land under personal cultivation
within the ceiling limit applicable to a
person under the ceiling law for the time
being in force ?
3. Whether, in spite of the protection
afforded by Article 31-B of the Constitution
by virtue of inclusion of U.P. Act 1 of 1971
and the two amending Acts, namely, U.P. Act
No. 18 of 1973 and U.P. Act No. 2 of 1975, in
the IX SCHEDULE to the Constitution, compli-
ance would still be necessary of the provi-
sions of second proviso to Article 31-A(1) of
the Constitution ?
4. Whether, in spite of protection having
been given under Article 31-C of the Consti-
tution to U.P. Act No. 18 of 1973 and U.P. No.
2 of 1975 by virtue of a declaration made in
section 2 of each of these Acts that these
Acts are for giving effect to the policy of
the State towards securing the principles
specified in clauses (b) and (c) of Article 39
of the Constitution, is it still necessary to
comply with the provisions of the second
proviso to Article 31-A( 1 ) of the Constitu-
tion ?
The first two questions were answered by the High Court
against the State by holding that section 5, sub-section
(6.) of the amended U.P. Imposition of Ceiling of Land
Holdings Act is violative of the second proviso to clause (1
) of Article 31A of the Constitution, inasmuch as it
provides for ignoring all transfers of land made after 24th
January, 1971 save those excepted under the proviso to
that sub-section and thereby authorises acquisition of land
held by a person under personal cultivation within the
ceiling limit applicable to him. The High Court also an-
swered the third .question against the State on the view
that Art. 31-B does not dispense with the requirement that
an acquisition made by the State even if it be under an
enactment specified in the Ninth Schedule, should conform
with the second proviso to clause (1) of Article 31A and if
the acquisition is violative of that proviso, it would be
void, notwithstanding that the enactment under which it is
made is included in the Ninth Schedule. The fourth
question was also answered in the same way by holding that
the protection given under Article 31C of the Constitution
does not extend to violation of the second proviso to clause
(1) of Article 31A. The answer given by the High Court to
the fourth question is not challenged in the present appeal
but the correctness of the answers given to the first
three questions is seriously assailed before us by the
State.
We will first deal with the third question since it is
obvious that if the answer to that question is in favour of
the State and it is
4--206SCI/77
812
held that Act. 31-B protects an enactment included in the
Ninth Schedule even from attack on the ground of violation
of the second proviso to clause (1) of Art. 31A, it would
become unnecessary to consider the first two questions which
raise the issue whether section 5, subsection (6) of the
amended U.P. Imposition of Ceiling on Land Holdings Act is
violative of that proviso, for even if it is, it would be
protected by Art. 31-B in view of the fact that U.P. Act
No. 1 of 1971 as also. the two subsequent amending Acts,
namely, U.P. Act No. 18 of 1973 and U.P. Act No. 2 of 1975,
are ’.included in the Ninth Schedule to the Constitution.
Now, so far as the third question is concerned, we have
already held, in a judgment delivered today in Civil Appeals
1132-1164 of 1976 arising under the Maharashtra Agricultural
Lands (Ceiling of Holdings) Act, 1961, that Art. 31-B
affords complete immunity to an enactment included in the
Ninth Schedule against violation of the second proviso to
clause (1) of Art. 31A and such an enactment is protected
from invalidation on that ground. Having regard to this
decision, the answer to the third question must be given in
favour of the State and it must be held that section 5,
sub-section (6) of the amended U.P. Imposition of Ceiling on
Land Holdings Act, even if it contravenes the second proviso
to clause (1) of Article 31A--a matter on which we do not
wish to express any opinion since it is unnecessary to do
so-in validated. under Article 31-B.
We accordingly allow the appeal, set aside the order of
the High Court in so far as it answers the first three
questions against the State and hold that section 5, sub-
section (6) of the U.P. Imposition of Ceiling on Land Hold-
ings Act iS valid and its constitutionality cannot be
assailed by reason of the immunity enacted in Article 31-
B. The respondent will pay the costs of the appeal to the
State.
C.As. 1040 of 1975 etc.
BHAGWATI,. J. These appeals by the State of
Punjab are directed against a judgment of the High Court of
Punjab and Haryana declaring certain provisions of the
Punjab Land Reforms Act, 1972 unconstitutional on the ground
that they violate the second proviso to clause (1 ) of
Article 31A of the Constitution. The constitutional validi-
ty of the whole Act was challenged in the writ petitions
giving rise to these two appeals, but the High Court nega-
tived the challenge and upheld the constitutional validity
of the Act save in regard to those provisions which create
an artificial concept of a family and provide for clubbing
together of land held by each member of the family for the
purpose of applying the limitation of permissible area. We
will briefly refer to these provisions which have been
struck down by the High Court as constitutionally in-
valid. Section 3 is the definition section and clause (10)
of that section define ’person’ to include inter alia a
family. The expression ’family’ is defined in clause
(4) of section 3 by saying that ’family’ in relation to a
person means the person, the wife or husband, as the case
may be, of such person and his or her minor children, other
than a married minor daughter. It is obviously an artifi-
cial definition of family because family, as known in ordi-
nary parlance, would include not only minor children but
also major sons and unmarried daughters, whereas
813
’Family’ as defined here excludes major sons and
unmarried daughters. Section 4, sub-section (1) provides
that subject to the provisions of section 5, no person shall
own or hold land as landowner or tenant or partly as land-
owner and partly as tenant in excess of the permissible area
and sub-section (2) of that section lays down what shall be
the permissible area in respect of different classes of
land. There is proviso. (ii) to sub-section (2) of section
4 which says that where the number of members of a family
exceeds five, the permissible area shah be increased by
one-fifth of the permissible area for each member in excess
of five, subject to the condition that additional land shall
be allowed for not more than three such members. Sub-sec-
tion 4 of Sec. 4 has two clauses which reads as fol-
lows:
"(a) Where a person is a member of a
registered cooperative farming society, his
share in the land held by such society togeth-
er with his other land, if any, or if such
person is a member of a family, together with
the land held by every member of the family
shall be taken into account for determining
the permissible area;
(b) where a person is a member of a fami-
ly, the land held by such person together with
the land held by every other member of the
family, whether individually or jointly, shall
be taken into account for determining the
permissible area."
It will thus be seen that under the provisions of the Act
the land held by each member of a family as defined in
section 3, clause (4), whether individually or jointly, is
required to be pooled together and taken into account for
determining the applicability of the permissible area. The
argument of the respondents, which found favour with the
High ’Court, was that these provisions are violative of the
second proviso to clause (1) of Article 31A inasmuch as
they permit acquisition of land held by a member of a
family under his personal cultivation, though it might be
within the permissible area for an individual, without
payment of full market value as compensation and. hence they
are constitutionally invalid. This view taken by the
High Court is assailed. in the present appeals before this
Court.
Now, it may be pointed out straightaway that when the
High Court delivered its judgment on 14th February, 1974
the Punjab Land Reforms Act, 1972 was not included in the
Ninth Schedule and hence it was not possible for the State
to invoke the protection of Article 31-B. But subsequently
the Act has been included in the Ninth Schedule as Entry 78
by the Constitution (Thirty-fourth Amendment) Act, 1974
and hence it is now entitled to the immunity conferred by
Article 31-B. We had occasion to consider a similar ques-
tion arising under the Maharashtra Agricultural Lands’
(Ceiling of Holdings) Act, 1961 where also an artificial
concept of a family unit is created and lands held by each
member of the family unit are aggregated together for the
purpose of applying the limitation of
814
ceiling area. The relevant provisions of the Maharashtra
Agricultural Lands (Ceiling of Holdings) Act, 1961 are in
fact almost identical with the impugned provisions of the
Punjab Land Reforms Act, 1972 While dealing with the
constitutional validity of the Maharashtra Agricultural
Lands (Ceiling of Holdings) Act, 1961 in Civil Appeals Nos.
1132-1164 of 1976, we have pointed out in a judgment
delivered today that these provisions introducing the con-
cept of a family unit and clubbing together lands held by
each member of the family unit and applying the limitation
of ceiling area in reference to the aggregation of such
lands are not violative of the second proviso to clause (1)
of Article 31A and even if they were, they are protected by
Article 31-B. The reasoning which has prevailed with us for
sustaining the validity of the provisions of the Maharash-
tra Agricultural Lands (Ceiling of Holdings) Act, 1961
must apply equally in the present cases arising under the
Punjab Land Reforms Act, 1972 and we must hold that the
impugned provisions of the Punjab Land Reforms Act, 1972 are
not in conflict with the second proviso to clause (1) of
Article 31A and in any event, they are protected from inval-
idation under Article 31-B.
We may point out that the same view has been taken by
this Court in regard to the constitutional validity of the
relevant provisions of the Gujarat Agricultural Land Ceil-
ing Act (27 of 1961) in Hansmukhlal v. State of Gujarat.(1)
The relevant provisions of the Punjab Land Reforms Act, 1972
are almost the same as those of the Gujarat Agricultural
Land Ceiling Act (27 of 1961) which were upheld as constitu-
tionally valid in Hansmukhlal’s case (supra).
We accordingly negative the challenge to the constitu-
tional validity of the Punjab Land Reforms Act, 1972 and
hold that it does not suffer from any of the constitutional
infirmities alleged in the writ petitions. The appeals
are accordingly allowed with costs in favour of the appel-
lant. There will be only one set of costs.
KRISHNA IYER, J.--Legal challenges to the constitution-
ality of agrarian transformation through legislation die
hard in our divided society, as is evidenced by this ava-
lanche of appeals, by special leave, from the High Courts of
Maharashtra, Punjab and Allahabad. The naive expectation
that new incarnations in court of dead confrontations be-
tween land legislation and the Constitution may be finally
laid to rest by a larger-than-legal discussion has pressured
me into writing a separate opinion where concurrence with my
learned brethren should have spared this seemingly otiose
exercise.
Although the majuscule argumentation, which has marked
the formidable forensics of this litigation at the High
Court level, has ranged over large issues, Shri Tarkunde,
who led the main arguments for one side, has discriminating-
ly dwindled down his submissions before us to two minuscule
issues which, nevertheless, arm of lethal moment, if accept-
ed. The recurrence of attacks on the vires of land reform
laws, even.after being impregnably barricaded by the Ninth
(1) [1977] 1 S.C.R. 103
815
Schedule, constrains me to set out at some length the broad
perspective which courts must possess in such confrontation
situations. Our Constitution is tryst with destiny, pream-
bled with Inscent solemnity in the words ’Justice--social,
economic and political’. The three great branches of Gov-
ernment, as creatures of the Constitution, must remember
this promise in their functional role and forget it at their
peril, for to do so will be a betrayal of those high values
and goals which this nation set for itself in its objectives
Resolution and whose elaborate summation is in Part IV of
the paramount parchment. The history of our country’s
struggle for independence was the story of a battle between
the forces of socio-economic exploitation and the masses of
deprived people of varying degrees and the Constitution sets
the new sights of the nation. To miss the burning economics
and imperative politics of the Fundamental Law and to focus
fatuously on legal logomachy and pettifogging casuistry
is to play truant with its messiahnism and to defeat the
sweep of its humanism. Once we grasp the dharma of the
Constitution, the new orientation for the karma of adjudica-
tion becomes clear. Our rounding fathers, aware of our
social realities and the inner workings of history and human
relations, forged our fighting faith, integrating justice in
its social, economic and political aspects. While contem-
plating the meaning of the Articles of the Organic law, the
Supreme Court shall not disown Social Justice.
We must realise the vital role in Indian economic inde-
pendence that the land question plays before approaching
the constitutional issues urged before us. The caste
system and religious bigotry seek sanctuary in the land
system. Social status syndrome, resisting the egalitarian
recipe of the Constitution, is the result of the hierarchi-
cal agrarian organisation. The harijan serfdom or dalit
proletarianism can never be dissolved without a radical
redistribution of land ownership. Development strategies,
income diffusion programmes and employment opportunities,
why, even the full realisation of the social and economic
potential of the ’green revolution’ demand agrarian reform.
Michael Cepede, Professor and Independent Chairman of
the FAO Council, after studying the link between the green
revolution and land reforms has concluded:
" .... land reform, far from being
incompatible with the Green Revolution, is
essential to its successful continuation. In
any case, unless the new techniques are
quickly made available to peasant farmers, the
social situation will before. long become
explosive. If land workers are thwarted in
their expectation of jobs under the Green
Revolution, they will have no alternative but
to migrate to a hopeless existence in the
suburban shanty towns.
As an Indian friend once said to me,
unless the peasant is allowed to participate
fairly soon in the Green Revolution, it will
quickly change colour. If it is to remain
green,
816
workers on the land must no longer be exploit-
ed as they are now; there must be a structural
reform, which means first and foremost land
reform."
(The Green Revolution and Employment--by Michael CEPEDE
-- International Labour Review, Vol. 105, 1972--P. 1)
The intimate bond between poverty and hierarchy in agrarian
societies, the impact of the social framework of agriculture
on the castesystem, the inhibition of feudal tenures on the
productive energies of the peasantry, are subjects which
have been studied by cultural anthropologists, sociologists
and economists and, in consequence, the Constitution has
included agrarian reform as a crucial component of the New
Order.
In a recent publication by the Institute of Economic
Growth, the inter-connection between land reform, class
structure and the powerelite has been high-lighted:
"The significance of land reform is
obvious if one keeps in view the predominantly
agrarian character of most Asian Countries.
The majority of populations in the Asian
region live in villages where land constitutes
not only the main source of livelihood but
also the basis of social stratification power
’structure, family organisation and belief
systems. Land reform which is intended to
promote changes in inland relations is
bound to exercise a far-reaching influence
not only on the pattern of agricultural trans-
formation but of rural transformation as a
whole.
It should be borne in mind that changes
in land relations are not only propellers of
socio-economic change, they are also recipro-
cally influenced by changes in the economic,
technological, social, political and ideologi-
cal spheres. Analysis of the impact of land
reforms, therefore, has to be attempted with
an awareness of development in the total
social situation. Further, countries in Asia
exihibit many points of similarity as well as
of divergence in respect of land reform pro-
grammes and their impact on socio-economic
changes."
(Studies in Asian Social
Development--McGraw-Hill Publishing Co., Ltd.,
p. 5).
Small wonder that the framers of the Constitution were
stirred by the proposition that freedom in village India
become’s ’free’ only when the agrarian community comes into
its own and this necessitates radically re-drawing the rural
real estate map. A sensitied awareness of this background
is essential while assessing the legal merit of the submis-
sions made by Shri Tarkunde which has fatal potential
vis-a-vis the three impugned legislations in question.
We are directly concerned, in considering the crowd of
appeals from the three High Courts, with Arts. 31A(1)* and
31-B which
* In its present shape, it was recast by the Constitution
(Fourth) Amendment Act.
817
came into the Constitution shortly after and as the very
First Amendment to the Constitution. The relevance of land
reforms and their forensic inviolability was then stressed
in Parliament by the Prime Minister who moved the Bill in
this behalf. He explained the quintessential aspect of the
problem. I quote it here because the voice of Parliament
belights, when played back, the words of the Articles to
better appreciate their import and amplitude:
"Shri Jawaharlal Nehru :.. When I think
of this Article. (Art. 31) the whole gamut of
pictures comes up before my mind, because this
article deals with the abolition of the za-
mindari system, with land laws and agrarian
reform .....
Now, ... a survey of the world today, a
survey of Asia today will lead any intelligent
person to see that the basic and the primary
problem is the land .problem today in Asia, as
in India. And every day of delay adds to the
difficulties and dangers apart from being an
injustice in itself ......
I am not going into the justice or
injustice of but am looking at it purely from
the point of view of stability. Of course, it
you go into the justice or injustice, you have
to take a longer view, not the justice of
today, but the justice of yesterday also.
We do not, want anyone to suffer. But,
inevitably in big social changes some people
have to suffer. We have to think in term’s of
large schemes of social engineering, not petty
reforms but of big schemes. like that .....
Even in the last three years or so some very
important measures passed by State Assemblies
and the rest have been held up. No doubt, as I
said, the interpretation of the Court must be
accepted as right but you, I and the country
has to wait with social and economic condi-
tions--sOcial and economic upheavals-and we
are responsible for them. How are we to meet
them ? How are we to meet this challenge of
the times ? Therefore, we have to think in
terms of these big changes, land changes and
the like and therefore we thought it best to
propose additional articles 31A and 3lB and’
in addition to that there is a Schedule at-
tached of a number of Acts passed by State
Legislatures, same of which have been chal-
lenged or might be challenged and we thought
it best to save them from long delays and
these difficulties, so that this process of
change which has been initiated by the
States should go ahead."
(Constitution First Amendment Bill Debates,
d/16-5-51).
We now know the high seriousness and wide sweep of the
constitutional provisions falling for construction. The
purpose of Art. 3lB is conferment of total immunity from
challenge on the score of violation of Part III. The words
used are as comprehensive as English
818
language permits. And there is no justification. to narrow
down the pervasive operation of the protection, once we
agree that the legislation relates to agrarian reforms.
I have, right at the outset, hammered home the strategic
significance of land reforms in the planned development .of
our resources, the restoration of the dignity and equality
of the individual and the consolidation of our economic
freedom. No land reforms, no social justice. And so, the
framers of the Constitution, finding the fearful prospect of
agrarian re-structuring being threatened by fundamental
rights’ archery, decided to armour such reform programmes
with the sheath of invulnerability viz., the Ninth Schedule
plus Art. 3lB. Once included in this Schedule, no land
reform law shah be arrowed down by use of Part III. A
complete protection was the object of the 1st Amendment, and
to blunt the edge of this purpose by interpretative tinker-
ing with legalistic skills is to cave in or assist unwit-
tingly the slowing down of the process which is the key to
social transformation. The listening posts of the constitu-
tional court are located, not in little grammar nor in
lexicography nor even in pedantic reading of Provisos and
Explanations based on vintage rules but in the profound
forces which have led to the provision and in the compre-
hensive concern expressed in the wide language used. While
any argument in Court has .to be decided on a study of the
meaning of the words of the statute vis-a-vis the constitu-
tional provisions, the very great stakes of the country in
agrarian legislation, which we have been at pains to
emphasize, enjoin upon the Judges the need to bestow the
closest circumspection in evaluating invalidatory conten-
tions. Every presumption in favour of validity, seman-
tics permitting, every interpretation upholding vires,
possibility existing, must meet with the approval of the
Court. Of course, if any of the provisions of the Act,
tested by the relevant constitutional clause, admits of no
reconciliation, the Act must fail though, since the Court
has its functional limitation in rescuing a legislature out
of its linguistic folly.
I may here briefly set out the circumstances which
account for these appeals. Maybe, I may also state pithily
the nature of the attempted constitutional invasion on the
legislative provisions. The appellants have arrived in
three batches. The first set of appeals is by landlords
from Maharashtra whose challenge of the Maharashtra Agricul-
tural Lands (Ceiling on Holdings) Act, 1961 (Act No. 27 of
1961 ) as amended, (especially ss. 4 and 5) proved ineffec-
tual in the High Court and they seek better fortune by
urging some of the same arguments more sharply in this
Court. The next bunch of appeals is by the State of Punjab
which complains about the High Court’s conclusion of
unconstitutionality of s. 5(1) of the Punjab Land Reforms
Act, 1972. The third group is by the State of U.P. some of
the provision’s of whose land. reform law have been declared
ultra vires by the High Court, and the aggrieved State
contests that ratiocination as horrendously wrong. For easy
reference hereafter, I will abbreviate the three statutes as
the Maharashtra Act, the Punjab Act and the U.P. Act. The
provisions under attack are substantially
819
similar in nature, and the arguments before us likewise have
been more or less identical. One common feature of all the
three enactments is that they are all included in the
Ninth Schedule to the Constitution, although it must be
stated that the Punjab Act, at the time the High Court
decided the case, had not been so included. Since the three
Acts enjoy the immunity ensured by Art. 31-B, the examina-
tion by this Court of the questions mooted has to be on that
footing. That Chinese Wall of protection still leaves
vulnerable chinks, according to Shri Tarkunde, and his major
offensive is based on the second proviso to Art. 31-A(1).
He derives from the proviso thereto a legislative incompe-
tency if some mandated conditions implied therein are not
fulfilled and the failure to comply with this requirement by
all three Acts spells their invalidity.
The broad-spectrum attack in the High Courts, based on
many grounds, having been given up, we may focus first on
the relevant portions of Arts. 31-A and 31-B and the Ninth
schedule, before coming to the specific sections of the Acts
which allegedly violate, with fatal impact, the constitu-
tional prescriptions or prohibitions. Shri Tarkunde himself
followed this line in his argument.
Speaking generally, the gravamen of the charge, in all
the three instances, is in creating an ersatz ’person’ or
artificial family for the purposes of the Acts, contrary to
the implicit requirement of the 2nd proviso to Art. 31A(1),
and in presenting a curious ceiling limit for such a ’fami-
ly’ regarding lands in personal cultivation. We will con-
sider this principal argument closely.
Article 31-B reads thus:
"31-B. Validation of certain Acts and Regula-
tions
Without prejudice tO the generality of
the provisions contained in Article 31’A, none
of the Acts and Regulations specified in the
Ninth Schedule nor any of the provisions
thereof shall be deemed to be void, or ever to
have become void, on the ground that such Act,
Regulation or provision is inconsistent with
or takes away or abridges any of the rights
conferred by, any provisions of this Part,
and notwithstanding any judgment, decree or
order of any court or tribunal to the con-
trary, each of the said Acts and Regulations
shall, subject to the power of any competent
Legislature to repeal or amend it, continue in
force."
Its obvious object is to save land reform laws from being
shot down by the constitutional missiles of Part III.
Conceding this, counsel argues that what is repulsed is
attack based on rights under Part III but other infirmities
are not cured by Art. 3lB. One such infirmity, legislative
incompetency, is the foundation of hiss argument. Before
critically appraising a contention, one must sympathise with
the submission. So we may read Art. 31A(1) to the extent
relevant:
820
"31A. Saving of laws providing for acquisition
of estates,
etc :--
(1) 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 extin-
guishment or modification of any such rights,
or
(b)- the taking over of the management of
any property by the State for a limited period
either in the public interest or in order to
secure the proper management of the property,
or
(c) the amalgamation of two or more corpo-
rations either in the public interest or in
order to secure the proper management of any
of the corporation, or
(d) the extinguishment or modification of
any rights of managing agents, secretaries and
treasurers, managing directors, directors or
managers of corporations, or of any voting
fights of shareholders thereof, or
(e) the extinguishment or modifications of
any rights accruing by virtue of any agree-
ment, lease or licence for the purpose of
searching for, or winning, any mineral or
mineral oil, or the premature termination or
cancellation of any such agreement, lease or
licence,
shall be deemed to be void on the ground
that it is inconsistent with, or taken away or
abridges any of the rights conferred by Arti-
cle 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, has
received his assent:
Provided further that where any law
,makes any provision for the acquisition by
the State of any estate and where any land
comprised therein is held by a person under
his personal cultivation, it shall not be
lawful for the State to acquire any portion of
such land as is within the ceiling limit
applicable to him under any law for the time
being in force or any building or structure
standing thereon or appurtenant thereto,
unless the law relating to the acquisition of
such land, building or structure, provides for
payment of compensation at a rate which shall
not be less than the market value thereof."
All the Acts relate to the acquisition by the State of
estates, in the sense that surplus lands above the ceiling
limit are taken away
821
by the State. While this is permissible, notwithstanding
any violation of Arts. 14, 19 and 31, the second proviso to
Art. 31A(1) by a negative prescription, imposes legislative
incompetence in certain circumstances. Shri Tarkunde reads
the proviso in a manner not so easy to follow. Even so, to
understand the argument one has to follow counsel’s chain of
reasoning. Firstly, he persuades us that where any land is
held by a person in hi’s actual cultivation, the State
cannot acquire any portion of such land as. is within the
ceiling limit applicable to him under any law unless the law
relating to the acquisition of such land provides for pay-
ment of compensation at a rate not less than the ,market
value thereof. He is right.
In none of these Acts is compensation on that scale
payable. The next question is whether the acquisition of
land is below the ceiling limit. To make good this part of
his argument, he calls in aid Art. 367. That Article im-
ports the application of the General Clauses Act, 1897,
for the interpretation of the words used in the Constitu-
tion and so the expression ’person’ used in Art. 31A
(Second Proviso) must bear the meaning assigned to it by s.
2(12) of the General Clauses Act. Counsel states that the
Acts in question define ’family’ and ’family unit’ in a
bizarre manner, by providing for ceiling limit for ’family
unit’ incongruously with the natural concept of family but
fabricated in the foundry of the statutes, the laws have
violated the ceiling for the individuals comprising the
family. By reading ss. 4(1) and 5 of the Maharashtra Act
and s. 4(1) and s. 5 read with r. 5(4) of the Punjab Act,
counsel tried to make good his contention that there was a
flagrant departure from the concept of ’person’ as defined
in s. 2(12) of the General Clauses Act. By doing this, the
legislature treated one person’s separate land as land
of the family unit and deprived the wife and minor child
of the right to hold lands within the ceiling limit. By
this recondite reasoning, Shri Tarkunde urged that the
legislature had transgressed the limits of their competency
which rendered the legislations void, not because any funda-
mental right in Part III had been flouted but because the
limitation on legislative competency written into the second
proviso to Art. 31 A had been breached.
Counsel fought shy of reading into the 2nd proviso to
Art. 31A(1) a fundamental right conferred on persons holding
lands below the ceiling limit in personal cultivation.
This legalist dexterity became necessary because Art. 3lB,
on its plain and plenary terms, was a sovereign remedy
against all abridgement of or inconsistencies with fundamen-
tal rights under Part III. The sweep of this provision, the
paramount purpose it was designed to serve and the. ampli-
tude of its language versus the narrowness of the construc-
tion put, the desperate interpretative crevices created,
frustrative of its main object, and the reliance on the
structure of Art. 13 to understand the anatomy of Art.
31B--this was the gut issue on which most of the debate
centred. Equally importantly, whether the prescription in
the said 2nd proviso was a guaranteed fundamental right
expressed in emphatic negative and as an exception to an
exception or was it solely a limitation on legislative power
without creating a corresponding right in any person--this
too occupied the centre of the stage.
822
The Punjab and Haryana High Court, in the judgment
under appeal, has ventured the view that the provision
relating to ’family’ and fixation of land ceiling for such
units is not agrarian reform. This extreme dictum discloses
the easy possibility of judicial solecism when courts wear
legal blinkers while adjudging questions of agronomics,
national reconstruction arid sociological programmes in the
setting of developing countries. Professional innocence of
current economics, anthropology and sociology, in essen-
tials, while rendering constitutional verdicts on develop-
mental law’s, is forensic guilt.
In State of Kerala & Anr. v. Silk Manufacturing (Wvg.)
Co. Ltd. etc.(1) the considerable amplitude of agrarian
reform in developing countries has been explained. If
India lives in her villages, if a huge majority of its
people live or starve on agriculture and under agrestic
sub-culture, every thing that promotes rural regeneration
and the welfare of the agricultural community is agrarian
reform. This being the conceptual sweep of the expression,
all reasonable strategies for the limitation of holdings and
maximization of surplus lands for distribution to the land-
less and designing a hopeful rural future obviously fall
within the expanding projects of agrarian reform. To argue
more is to labour the obvious and to interpret liberally is
an obligation to the Constitution.
Assuming that the legislations in question are measures
of agrarian reform--and they are-We have to dissect and
discover the nature of the objection based on the 2nd provi-
so to Art. 31 (1) and decide whether the protective wings of
Art. 3lB are wide enough to take in these legislations and
repel the imputed infirmity.
Art. 3lB categorically states that’ none of the Acts
specified in the Ninth Schedule nor any of the provisions
thereof, shall be deemed to be void on any conceivable
ground rooted in Part III. Even if such Act or provision is
inconsistent with any provision of Part 111 it shall not be
invalidated. Even if such Act or provision takes away or
abridges any of the rights conferred by any provisions of
Part III it shah continue in force. In short, no matter
what the grounds are, if they are traceable to Part Iii in
whatever form, they fail in the presence of Art. 3lB. No
master of English legal diction could have used, so tersely,
such protean words which in their potent totality bang, bar
and bolt the door against every possible invalidatory sally
based on Part III. And Article 31A(1) being in Part III,
Shri Tarkunde’s ’2nd proviso’ bullet cannot hit the target.
Nor are we impressed with the cute argument that the phrase-
ology of Art. 3lB must be correlated to Art. 13 and read
with a truncated connotation. Legal legerdemain is of no
avail where larger constitutional interests are at stake.
Shri Tarkunde concedes that if we read the 2nd proviso
to Art. 31A(1) as conferring a fundamental right on every
person in personal cultivation of land below the ceiling
limit. Art. 3lB is an effective answer to his contention.
And so he has striven to make the point that what the said
proviso does is not to confer a right but to clamp down a
limitation on legislative competence. The proviso,
(1) [1974] 1 S.C.R.67|.
823
according to counsel, imposes an embargo. on the legislature
against enacting for acquisition of lands below the ceiling
limit without providing for payment of compensation at a
rate which shall not be less than the market value thereof.
The fallacy of this submission lies in its being a half-
truth confounded for the whole truth. Every fundamental
right, from the view point of the individual, gives a right
and from the Standpoint of the State, is a restraint.
Whether the manner of expression used is in positive terms
or negatively, whether the statutory technique of a proviso,
saving clause, exception or explanation, is used or a
direct interdict is imposed, the substantive content is what
matters. So studied, many of the Articles in Part III,
worded in a variety of ways, arm the affected individual
with a right and, pro tanto, prohibit the legislature and
the executive from enacting or acting contra. Every right
of A is a limitation on B, in a universe of law and order.
The learned Attorney General expanded on the functional
plurality of a proviso and on what is a fundamental right
from the individual’s angle being a limitation on power from
the legislative angle. Cases were cited, passages were
blue-pencilled and text books were relied on. Even self-
evident propositions wear perplexingly erudite looks when
learned precedents and excerpts from classics play ’upon
them. It is Simple enough to say that there may be singular
situations where legislative incompetence may exist without
a corresponding individual right but in the generality of
cases it is otherwise. Jurisprudential possibilities apart,
in the concrete case before us there is a clearly enunciated
fundamental right, garbed as an exception to an exception or
as a proviso carved cut of a general saving provision. It
needs no subtlety to see that under the rubric ’Right to
Property’ a skein of rights and limitations on rights has
been wound in Arts. 31 to 31C. Together they are the meas-
ure of the fundamental right to property in its macro form
and micro notes. So understood, the scheme is plain. A
large right to property protected by law against depriva-
tion, compulsory acquisition only on constitutional condi-
tions, saving of agrarian and some other laws from these
constitutional constraints, followed by creation, through a
proviso, of an oasis where acquisition can be made only
by payment of compensation at or above market value-such is
the pattern woven by the complex of clauses. A great right
is created in favour of owners to get compensation at not
less than the market value if lands within the ceiling limit
and in personal cultivation are acquired by the State. This
is a fundamental right and is a creature of the 2nd provi-
so to Art. 31A(1). An independent provision may occasion-
ally incarnate as a humble proviso.
I am not, therefore, inclined to pursue Shri Tarkunde’s
trail in reading the rulings which set out the proper office
of a proviso, although it is absolutely plain that in the
context, setting and purpose of a provision, even a proviso
may function as an independent clause.
Likewise, the artificiality imputed to ’family unit’ and
’family’ in the two statutes and the anomalies and injus-
tices which may possibly flow from them also do not arise
for consideration since we have
824
taken the scope of Art. 3lB to be Wider than contended for.
Moreover, in any land reform measure, where the maximum
surplus pool of land for social distribution is the aim,
drastic interference with the existing rights and room for
real individual grievances are inevitable. The new order
claims a .high price from the old and pragmatic strategies
to organise land reforms may involve definitional unortho-
doxy if the target group is to be reached. Socio-economic
legislation is social realism in action, not bookish perfec-
tion, as social scientists will attest.
I hold that the Maharashtra, the Punjab and the U.P.
Acts are not unconstitutional, taking the constructive view
that Art. 31-B, vis-a-vis agrarian reforms, is a larger
testament of vision and values in action and a bridge be-
tween individual right and collective good.
The Nagpur Bench has spurred with counsel’s many submis-
sions most of which have been wisely abandoned here and has
ultimately upheld the legislation. The Punjab High Court
has ventured to hold that the law is bad for reasons repeat-
ed before us and repelled by us unanimously. The Allahabad
judgment has shown noetic naivete and novel legal logic
in condemning the provisions to death on grounds which the
counsel cared to espouse before us. The reason for this
lies in the womb of obvious surmise. While interpretative
opportunities are still open for courts in the application
of land legislation. the requiem of the unconstitutionality
of agrarian reform laws has, by now, been sung.
Nevertheless, the crowing event of egalitarian legisla-
tion is not so much constitutional success as effective
emacation. The distance between the statute book and the
landless tiller is tantalisingly long and for this implemen-
tation hiatus the executive, not the judicative, wing will
hold itself socially accountable hereafter. May be it will
be spurred with responsible spread trasucending reform
rhetoric.
I agree that the Maharashtra appeals be dismissed, and
the other two batches be allowed.
S.R. Maharashtra appeals dismissed, U.P. & Punjab appeals
allowed.
825