PETITIONER:
HASMUKHALAL DAHAYABHAI & ORS. ETC. ETC
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT04/08/1976
BENCH:
BEG, M. HAMEEDULLAH
RAY, A.N. (CJ)
SINGH, JASWANT
CITATION:
1976 AIR 2316 1977 SCR (1) 103
1976 SCC (4) 100
ACT
Constitution of India--Article 31A (1) Second Proviso--Art.
31B--Meaning of right conferred--9th Schedule--Whether
different ceiling can be imposed for different
persons--Whether second proviso to Art. 31A(1) imposes a
fetter on the legislative competence--Gujarat Agricultural
Land Ceiling Act 1961 (Gujarat Act 27 of 1961)---Sec-
tion 2(21), 6.
General Clauses Act 1897---Section 3(42)--Meaning of
person--Whether legislature bound to follow definition in
General Clauses Act.
HEADNOTE
The appellants challenged the constitutional validity of
the Gujarat Agricultural Land Ceiling Act 1961 by filing
writ petitions in the High Court of Gujarat. The Preamble of
the Act state that the Act was enacted for Securing the
distribution of agricultural land as best to sub-serve the
common good. Section 6(1) of the Act provides that no person
shall hold either as owner or tenant land in excess of the
ceiling area. Section 6(2) provides that where an individu-
al who holds land as a member of a family, not being a joint
family, then the spouse. and the children excluding major
sons shall be grouped together for the purposes of the Act
and the provisions of the Act shall apply to the total land
so grouped together as if such land had been held by one
person. The ceiling area is fixed depending on the classes
of land, nature of irrigation facilities and productivity.
The said statute has been put in the 9th Schedule by the
Parliament. The Gujarat High Court dismissed the writ
petitions filed by the appellants but granted certificate of
fitness under Art. 133(1) of the Constitution to the appel-
lant.
The appellants contended that (1).Second proviso to Art.
31A of the Constitution provides that where any law makes
provision for the acquisition by the State of any estate
which 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 unless the law
provides for payment of compensation at a rate which is not
less than the market value. Apart from variations in the
ceiling area imposed by a statute, there cannot be a depri-
vation of rights of individuals holding property separately
in exercise of their separate individual rights by grouping
them as members of one family.
(2) The concept 017 "person" adopted by the statute is
unnatural and legally untenable. The concept of the term
’person’ having been fixed by the Central General Clause
Act, this concept and no other must be used for interpreting
second proviso to Art. 31A of the Constitution.
(3) The second proviso to Art. 31A(1) does not confer
any right upon any person but only imposes a limit upon
legislative competence so that the inclusion of the Act in
the’ 9th Schedule will not validate a provision which the
Legislature was’ not competent at all to enact.
HELD: The term ’person’ is not defined in the. Act.
Section 2(21 ) merely states that person includes a joint
family Under s 3(42) of the General Clauses Act 1897, a
person is defined as. including any company or association
or body of individuals whether incorporated or not. In the
absence of s. 6(2) each individual member of a family would
have been entitled to hold land upto the ceiling limit if it
was his or her legally separate property. The Act does not
debar spouses and minor children from holding their sepa-
rate. rights to land. There is no fixed concept of ’person’
any where. Section 6(2) does not either disable a husband
or a wife from holding their separate properties separately.
It does not merge or destroy their separate legal personali-
ties. It
104
merely requires their separate holdings to be grouped to-
gether as through they were held by one person only for the
purpose of determining the ceiling limit Each, holder of
such separate rights above the ceiling limit is permitted to
select the property he or she wishes to continue to hold in
such a way that the lands selected for such continuance
shall be in the same proportion in which lands were held by
each spouse. The reduction in their holding will, there-
fore, be proportionate to the areas’ of lands held separate-
ly. But, they are grouped together only for the purpose of
determining the ceiling limit for the fan, and, as a result
of a specific provision to that effect. It is not denied by
the appellants that the ceiling limit could have been low-
ered by the statute. Article 31A does not prohibit the
legislature from fixing ceiling limits for various individu-
als or the classes of individuals differently situated, nor
does the second proviso to Art. 31A(1) prescribe any partic-
ular or direct mode of imposing different ceilings for
individuals differently circumstanced. [106 G-H, 109 A-E]
Pritam Singh v. State of Punjab & Ors. [1967] (2) S.C.R. 536
distinguished.
(2) Article 3lB provides a complete answer to any attack
directed against the provisions of the Act based upon viola-
tion of any of the rights conferred by the provisions of
Part III of’ the Constitution. To read any limit into the
second proviso to Art. 31A(1) that there can be only single
ceiling limit for all persons would be to accept a novel
restriction on legislative competence. There is nothing in
the Constitution to bar any statute from receiving a dual
protection. In the. present case, the statute in question
is fully protected by Art. 3lB. Since the second proviso to
Article 31A confers certain rights up.on individuals, the
protective umbrella of Art. 3lB shields the impugned provi-
sion against any attack based upon the alleged violation of
such rights as well. [110 G-H, 111 A-C]
(3) There is no question of legislative competence. in
the present case. The proviso protects and confers certain
rights upon individuals to an amount of compensation. That
is the direct effect. [111 B-C]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 374-375
& 457-462 of 1976.
(From the Judgment and order dated 12-3-76 of the Guja-
rat High Court in S.C.A. Nos. 1784/73 and 650/74, 1125,
1118, 1123, 1124, 1835, 1836/74 respectively.)
A.K. Sen, S.J. Sorabjee, M.V. Chinubhai and B.R. Agarwa-
la, for the appellants in CAs 374-375/76.
S.J. Sorabjee, Mrs. Chinubhai, S.H. Sanjanwala, P. H.
Parekh and Miss Manju Jetley, for the appellants in CAs
457-462/76.
J.M. Thakere, Adv. General, J. P. Nanavati and M.N.
Shroff, for respondent No. 1 in all the appeals.
The Judgment of the Court was delivered by
BEG, J. The eight Civil Appeals before us by certifi-
cates of fitness of the cases for appeals to this Court
raise common questions involving the interpretation of
Articles 31A and 3lB of the Constitution of Indian relation
to the Gujarat Agricultural Land Ceiling Act XXVII of 1961
(herein-after referred to as ’the Act’).
The preamble of the Act says that it was enacted
because:
"xxx it is expedient in the public interest to
make a uniform provision for the whole of the State
of Gujarat in respect of restrictions upon holding
agricultural land in excess of certain limits and
it is also expedient for so securing the
105
distribution of agricultural land as best to sub-
serve the common good to provide for the acquisi-
tion of surplus agricultural land for the allotment
thereof to persons who are in need of lands for
agriculture (including cooperative farming socie-
ties, landless persons, agricultural labourers and
small holders) or for the allotment of such surplus
agricultural lands the integrity of which is main-
tained in compact blocks to a department of Govern-
ment or to cooperative farming societies or corpo-
rations owned or controlled by the State, for
ensuring the full and efficient use thereof and to
provide for other consequential and incidental
matters hereinafter appearing?"
The part of section 6 of the Act with which we
are especially concerned provides:
"6(1) Notwithstanding anything contained in
any law for the time being in force or in any
agreement, usage or decree or order of a Court,
with effect from the appointed day, no person
shall, subject to the provisions of sub sections
(2), (3), (3A) and (3B) be entitled to hold, wheth-
er as owner or tenant or partly as owner and partly
as tenant land in excess of the ceiling area.
(2) Where an individual, who holds land, is a
member of a family, not being a joint family which
consists of the individual and his spouse (or more
than one spouse) and their minor sons and minor
unmarried daughters, irrespective of whether the
family also includes any major son, and land is
also separately held by such individual’s spouse or
minor children, then the land held by the individu-
al and the said members of the individual’s family,
excluding major sons, if any shall be grouped
together for the purposes of this Act and the
provisions of this Act shall apply to the total
land so grouped together as if such land had been
held by one person.
(3) xxx xxx xxx
(3A) xxx xxx xxx
(3B) Where a family or a joint family con-
sist of more than five members comprising a person
and other members belonging to all or any of the
following categories, namely :--
(i) Minor son,
(ii) widow of a pre deceased son,
(iii) minor son or unmarried daughter of a
pre-deceased son, where his or her mother is dead,
Such family shall be entitled to hold land
in excess of 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
of the family does not exceed twice the ceiling
area; and,
9--1003 SCI 176
106
in such a case, in relation to the holding of such
family, such area shall be deemed to be the ceiling
area:
Provided that if any land is held separately
also by any member of such family, the land so held
separately by such member shall be grouped together
with the land to such family for the purpose of
determining the total holding of such family:
Provided further that where. in consequence of
any member of such family holding any land in any
other part of India outside the State, the ceiling
area in relation to the family is reduced as pro-
vided in sub-section (3A), the one-fifth of the
ceiling area as aforesaid shall be calculated with
reference to the ceiling area as would have been
applicable had no such land been held by such
member in any other part of India.
(3C) Where a family or a joint family irre-
spective of the number of members includes a major
son, then each major son shall be deemed to be a
separate person for the purposes of sub-section ( 1
) ".
In accordance with the provisions of Sections 4 and 5 of
the Act, classes of land, nature of irrigation facilities
provided there, and the ceiling area for each particular
class of land in each locality were specified in Schedule I.
This is found classified in nine local areas. The range of
ceiling limit varies from 10 acres to 54 acres, according to
the irrigation facilities and quality of land, the ceiling
for less productive and less advantageously situated land
being higher.
The question which has been raised before us is whether,
apart from variations in the ceiling area imposed by stat-
ute, there can be a depriviation of rights of individuals
holding property separately, in exercise of their separate
individual rights, by grouping them as members of one family
so as to compel them to take only one unit of land’ in such
a way that their total holding does not exceed the ceiling
limit which is the same for both individuals as well as
families as defined by the Act with some allowances for
large families. This raises a further question: What is
the unit for which this ceiling is prescribed?
It is evident that Section 6 conceives of each "person"
holding land as a single unit whose holding must not exceed
the ceiling limit. Section 2, sub-s. (21) says: "’person’
includes a joint family;". Thus, the term "person" is not,
strictly speaking, defined in the Act. Section 2, sub-s.
(21) only clarifies that the term "person" will "include" a
joint family also. It certainly does not exclude an indi-
vidual from being a person in the eyes of law.
This has been done apparently to make it clear that, in
addition to individuals, as natural persons, families, as
conceived of by other provisions, can also be and are per-
sons. This elucidation of the term "person" is in keeping
with Section 3 (42) of the General Clauses Act, 1897, which
lays down:
" ’person’ shall include any company or
association or body of individuals, whether incor-
porated or not".
107
We have referred to the Central General Clauses
Act 10 of 1897 and not to the State General
Clauses Act, which also contains a similar
clarification, because Article 367 of our Constitu-
tion provides that the definitions contained in the
Central Act "apply for the interpretation of the
Constitution". The argument which has been ad-
vanced before us is that the concept of the term
"person", having been fixed by the Central General
Clauses Act, this concept and no other must be used
for interpreting the second proviso to Article 31A
of the Constitution which lays down:
"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".
As no argument based on Articles 14 and 19 is open to
the appellant, the Act under consideration having been
included in the 9th Schedule to the Constitution, the ground
now taken is that Section 6, subsection (2) of the Act, set
out above, contains a colourable device for getting round
the limitations on legislative power imposed by the second
proviso to Article 31A(1) of the Constitution. It is urged
that this is done by adopting an unnatural and legally
untenable concept of a "person" which transpires from an
analysis of Section 6 of the Act.
It is true that, but for the provisions of Section 6,
sub.s.(2) of the Act, the term "person", which includes
individuals, as natural persons, as well as groups or bodies
of individuals, as artificial persons, such as a family is,
the entitlement to the ceiling area would be possessed by
every person, whether artificial or natural. In other
words, if Section 6(2) of the Act was not there, each indi-
vidual member of a family would have been entitled to hold
land upto the ceiling limit if it was his or her legally
separate property. This follows from the obivous meaning of
the term "person" as well as the inclusive definitions given
both in the Act under consideration and in the General
Clauses Act.
Spouses and minor children, as natural persons, have not
been debarred from holding their separate rights to land by
the provisions of the Act. It is not the object of the Act
to do that. The object of the Act, as set out above, is two
fold: firstly, to limit the ceiling area of each holder;
and, secondly, to acquire what falls beyond the ceiling
limit so that the State may distribute it to more needy
persons. It is not disputed that compensation is provided
for acquisition of what exceeds the ceiling area in every
case. As was held by this Court in H.H. Kesavananda Bharati
Sripadagalavaru v. State of Kerala,(1) the amount of compen-
sation fixed can not be questioned. Therefore, no
[1973] Supp. S.C.R. 1.
108
provision of the Act could be or is challenged on the ground
that the required compensation is not prescribed for an
acquisition under it as required by Article 31(2) of the’
Constitution or is inadequate. Article 3lB of the Constitu-
tion seems to us to provide a complete answer to any attack
directed against the provisions of an Act based upon an
alleged violation of any of the rights conferred by the
provisions of Part III of the Constitution. It reads:
"3lB. Without prejudice to the generality of
the provisions contained in Article 31B, 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, and provisions of this
part, and notwithstanding any judgment, decree or
order of any court or tribunal to the contrary,
each of the said Acts and Regulation’s shall,
subject to the power of any competent Legislature
to repeal ’Or amend’ it, continue in Force".
Learned Counsel for the petitioners concede that, in
view of the decision of this Court in H.H.
Kesavananda.Bharti’s case (supra) and other cases referred
to there, it is not possible to assail the provisions. of
Section 6 of the Act on the ground that they take away or
abridge any-right. conferred by Part III of the Constitution
on individuals, But, what they urge is that the second
proviso to Article 31A(1)does not confer any right upon any
person but only imposes, a limit upon the Legislative compe-
tence to that the inclusion of the Act in the 9th Schedule
will not validate a provision which a legislature was not
competent it all to enact. Such a provision, it was submit-
ted, will not be protected by Article 3lB of the Constitu-
tion. The contention is that Article 3lB does not protect a
provision from invalidity on the ground of legislative
incompetence of the legislature enacting it.
We do not think that the ease before us raises any
question of legislative competence of the nature which could
arise if a State Legislature had tried to trespass upon the
exclusive domain of Union Legislation. What has been urged
is simply that the second proviso to Article 31 (1) disables
the State Legislature from acquiring any land below
the ceiling limit without providing for compensation for
such acquisition at the full market value. The proviso
certainly protects, and, indeed, confers certain rights upon
individuals to an amount of compensation. That is its
direct effect.
The argument on behalf of the appellant, as we under-
stand it is that, although, an alteration of the ceiling
limit for each "person" directly by prescribing its stauto-
ry limit is permissible, yet, if it is not done directly by
changing the ceiling limit for each person but by introduc-
ing a concept of "person", contrary to the concept in the
provisions of the second proviso to Article 31 A( 1 ), it
becomes a prohibited colourable device for getting round the
second proviso to Article 31A(1). It is urged that the
effect of the amended Section 6 of the
109
Act is to change the ceiling limit for some persons only by
altering the legal and constitutional concept of a person.
We do not find any fixed concept of "person" anywhere.
No .doubt the concept is wide so that it could be contended
that it should not be narrowed down or confined, But
does Section 6 (2) do that? Section 6 (2) does not either
disable a husband or wife from owning or holding their
separate properties separately. It does not merge or de-
stroy their separate legal personailties. It requires their
separate holdings to be grouped together as though they were
held by one person only for the purpose of determining the
ceiling limit for each member of a family. It may indirect-
ly have the effect of disabling a member ’of a family from
holding land upto the prescribed ceiling limit for a person
holding as an individual. In other words, the result is that
such a member of a family will have to be content with a
holding less than that of an unmarried individual. It has
the effect of making it clear that what have to be grouped
together are the separate properties of individuals belong-
ing to families other than what are "joint families", in
law. It takes in and applies to members of families other
than undivided Hindu families. It means that married per-
sons and their minor children will have to be viewed as
though they hold one lot together even though they retain
their separate legal personalities and remain competent
owners of their separate holdings. It does not affect
either their legal status or competence. It does reduce
their individual holdings. But, we do not find any prohibi-
tion enacted by the second proviso to Article 31A(1) against
different ceiling limits prescribed for various individuals
or classes of individuals differently situated. Nor does the
second proviso to Article 31A(1) prescribe any particular
or direct more of imposing different ceilings on individu-
als differently circumstanced.
A glance at the provisions of Section 20 of the Act
shows that separate rights to properties grouped together
for purposes of computation only do not vanish. On the
other hand, each holder of such separate rights above the
ceiling ,limit is permitted to select the property he or
she wishes to continue to hold in such a way "that the lands
selected for such continuance shall be in the same propor-
tion in which lands held by each spouse before furnishing
the relevant statement were under sub-section (1) of Section
10. The reduction in their holdings would, therefore, be
proportionate to the areas of lands held separately but’
brought together only for the purposes of determining the:
ceiling limit for the family. The whole object of the proc-
ess prescribed seems to be that families, as contemplated by
the Act, should be units for merely determination of ceil-
ings for each member of a family.
Appellants relied on Kunjukutty Sahib etc. etc. v.
State of Kerala & Anr.(1) where it was held by this Court
(at p. 314):
"It was not disputed that the ceiling limit
fixed by the amended Act was within the competence
of the legislature to fix; nor was it contended
that the ceiling fixed by the original unamended
Act by itself debarred the legislature from further
(1) [1973] 1 S.C.R.326 @ 341.
110
reducing the ceiling limit so fixed. Prior to the
amendment undoubtedly no land within the personal
cultivation of the holder under the unamended Act
within the ceiling limit fixed thereby could be
acquired without payment of compensation according
to the market value, but once ceiling limit was
changed by the amended Act the second Proviso to
Art. 31A (1) must be held to refer only to the new
ceiling limit fixed by the amended Act. The ceiling
limit originally fixed ceased to exist for future
the moment it was replaced by the amended Act. The
prohibition contained in the second proviso oper-
ates only within the ceiling limit fixed under the
existing law, at the given time. It is true that
the new ceiling limit was fixed contemporaneously
with the acquisition of the land in excess of that
ceiling limit. But it was not contended that a law
so fixing the ceiling limit and acquiring the land
in excess would offend any provision of the Consti-
tution".
Pritam Singh v. State of Punjab & Ors.(1) was also cited
on behalf of the appellants. Here the contention, amongst
others, was repelled that, by adding land transferred to
certain relations to that held by a person under his person-
al cultivation, for the purpose of determining his ceiling
area and the surplus left, under the provisions of the Pepsu
Tenancy and Agricultural Lands Act, 1955, as amended by a
subsequent Act, rights guaranteed by the second proviso to
Article 31A(1) were contravened. This case certainly does
not lay down that the ceiling limit applicable to each
individual must be uniform or that it must be contained in a
single statutory provision directly dealing with ceiling
limits. It follows that the ceiling limit may vary from
individual to individual. These varying limits may result
from the combined effect of several provisions. The pre-
scription of different ceiling limits for different individ-
uals, differently circumstanced, could be enacted directly
by a single provision dealing with individual celling lim-
its, or, alternatively, it could be the consequence of
several provisions dealing with differing sets of circum-
stances. No law known to us has ever laid down that the
intention of the law makers on a particular subject must
necessarily transpire from a single statutory provision or
statutory provisions dealing directly with a particular
aspect. To read any such limit into the 2nd proviso to
Article 31A(1) of the Constitution would be to accept a
novel restriction on legislative competence. We have no
doubt that no such restriction could be found in the 2nd
proviso to Article 31 A ( 1 ) of the Constitution.
It was urged that Article 31A(1) and 3lB of the Consti-
tution operate in different fields of legislation. Whereas
Article 3 IA( 1 ) cures certain possible invalidities in
ordinary legislation, arising from its. inconsistencies with
Articles 14 or 19 or 31 of the Constitution, Article 3lB
cures a wider range of infirmities arising from conflict
with any of the provisions of Part III of the Constitution
and necessitates a constitutional amendment so as to protect
an impugned legislation by its inclusion in the 9th Schedule
to the Constitution. Legislation protected
(1) [1967] 2 S.C.R.p. 536.
111
by Article 31A of the Constitution would fall under appro-
priate legislative entries in the 7th Schedule. But, to
secure the protection of Article 3lB of the Constitution,
resort to the provisions of Article 368 of the Constitution
is imperative. These differences do not mean that legisla-
tion falling under any part of Article 31A(1) of the Consti-
tution, including the provisos, cannot receive also the
protection contemplated by Article 3lB of the Constitution.
There is nothing in our Constitution to bar any statute from
receiving a dual protection, so to speak, of both Article
31A(1) and 3lB of the Constitution if the conditions of each
are satisfied.
It is clear to us that the proviso to Article 31A(1) of
the Constitution confers certain rights upon individuals and
protects them from -constitutionally illegal invasion. We
are, therefore, unable to accept the argument advanced on
behalf of the appellants that the "protective umbrella" of
Article 3lB does not shield the impugned provisions ,against
an attack based upon the limits imposed by the second provi-
so to Article 31A(1) on legislative power. The argument
overlooks certain obvious answers: firstly, that limits on
legislative powers, imposed by Part III of the Constitution,
do have the direct result of protecting individual rights;
and, secondly, that no part of the second proviso to Article
31 (1) of the Constitution was, as already pointed out
above, infringed by the impugned provisions; and, thirdly,
even if one were to assume, for the sake of argument, that
rights conferred on individuals ’by the 2nd proviso to
Article 31 (1), were infringed in any way, pro. visions of
Article 3lB of the Constitution are enough to repel an
attack based upon such an alleged infringement. Both Arti-
cle 31A(1) and 3lB are intended to operate as protections
against consequences of what could otherwise be breaches of
the Constitution.
Consequently, we have to and do dismiss these appeals.
But, in the circumstances of the case, the parties will bear
their own costs.
P.H.P. Appeals dis-
missed.
112