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Patna High Court
Rani Sonabati Kumari vs State Of Bihar on 9 October, 1956
Equivalent citations: AIR 1957 Pat 270, 1957 (5) BLJR 165
Author: Ramaswami
Bench: Ramaswami, R K Prasad

JUDGMENT

Ramaswami, C.J.

1. The plaintiff, Rani Sonabati Kumari, is the Ghatwal of the Handwa estate, which is a Ghatwali tenure. The Handwa estate is located in the district of the Santal Parganas and bears tauzi No. 445, tenure No. 56, of the Bhagalpur Collectorate. The plaintiff has brought the suit for the declaration that the Bihar Land Reforms Act (Bihar Act 30 of 1950) is ultra vires the Bihar legislature and is illegal, void and inoperative.

The plaintiff also prays for a permanent injunction restraining the State of Bihar from issuing a notification under the provisions of Bihar Act 30 of 1950 in respect of the Handwa estate and also from interfering with the management of the said estate. The suit was brought on the 20th of November, 1950. The Constitution was, however, amended on the 18th of June, 1951, by the Constitution (First Amendment) Act, 1951, and Section 4 of that Act inserted Articles 31A and 31B for the purpose of validating certain Acts and Regulations and for the saving of laws providing requisitioning of estates etc.

The amendment was made expressly retrospective by Section 4 of the Constitution (First Amendment) Act, 1951. The plaintiff filed an amendment petition on the 25th of August, 1952. The amendment of the plaint was allowed by the court. By this amendment the plaintiff asked for the additional relief that even if the Bihar Act 30 of 1950 was constitutionally valid, the Act did not apply to the case of the plaintiff who was the holder of the office of a Ghatwal and whose estate could not be detached from the office.

It was also claimed by the plaintiff that the Ghatwali was a service tenure for public purposes and does not fall within the ambit of Bihar Act 30 of 1950. Written statements were filed on behalf of the State of Bihar contesting the claim of the plaintiff. The following issues were framed:

“1. Has the plaintiff any cause of action for this suit?

2. is the suit not maintainable for want of a valid notice under Section 80, Code of Civil Procedure?

3. is the Bihar Land Reforms Act, 1950 ultra vires and void?

4. Whether the Bihar Land Reforms Act is applicable to Handwa Ghatwali and whether the State Government has lawful authority to apply the provisions of the Bihar Land Reforms Act to the Handwa Ghatwali of which the plaintiff is the proprietor?

5. To what relief, if any, the plaintiff is entitled?”

2. When the case was taken up for hearing, Counsel for the plaintiff said that he would not press issue No. 3 in view of the decision of the Supreme Court in the ‘State of Bihar v. Sir Kameshwar Singh‘, AIR 1952 SC 252 (A). On behalf of the defendant the learned Government Advocate said that he would not press the first issue nor the second issue relating to the validity of the notice under Section 80 of the Code of Civil Procedure. The main issue therefore for determination in this case is the fourth issue, namely,
“Whether the Bihar Land, Reforms Act is applicable to Handwa Ghatwali and whether the State Government has lawful authority to apply the provisions of the Bihar Land Reforms Act to the Handwa Ghatwali of which the plaintiff is the proprietor?”

3. Before proceeding to consider this issue it is necessary to examine the nature arid character of the Handwa Ghatwali tenure. The title of the plaintiff is based upon a patta granted in 1778 by Captain Browne and subsequent confirmation of the grant made by Mr. Dickinson in 1794. The patta of 1778 describes the grantees as Ghatwals and requires them to patrol and protect the villages, and, when called upon, to appear before the Huzur, accompanied by 307 archers and barkandazas (matchlock man), and enjoins them to be careful of the boundaries. It is necessary at this stage to reproduce this patta in full, as much of the argument in this case turned on the meaning and import of this patta;

“Patta granted in terms of Kabuliat to Raja Sobhao Singh, Babu Idit Singh, Babu Gopal Singh, Babu Lal Singh and others, Ghatwals of Pargana Handwe, appertaining to Kharagpur, Mahalat Jangaltari,” Sarkar Monghyr, in the Province of Bihar.

This istimarari, Mubarrari Patta is granted (to you) with effect from 1184 Fasli at a consolidated Jama of Rs. 2,701/- (Rupees two thousand seven hundred and one) comprised of varying malwajahat and Sayarwajahat, with all habuba, with nazarana mohmoni nankar and Kanungel fee payable year after year, as per details given below excepting Brahmottar, Shibottar and imlak lands, aima jagirs and jagirs of archers and barkandes rasum (perquisites) to Makaddama, and Zamindari expenses etc. It is requisite that you should peacefully make proper cultivation and management and improve the population and Zirat day after day & year after year & pay into the treasury the proper rent due to Sarkar crop after crop, Instalment after instalment. You should keep the raiyats contented and satisfied by your good treatment and go round and protect the villages and watch the boundaries and limits, escorted by the archers and barkandazen attached to the Jagir as mentioned below and keep (yourselves) engaged in doing the work of Sarkar, huzur. You shall be held responsible for any murder, breach of the peace and (or) oppression that might be committed in the country. You should not oppress or tyrannize any raiyat. If anybody lodges any complaint before the huzur, you shall be punished on proof of the matter after enquiry. Whoever will give evil counsel to others and interfere in the work of the Sarkar shall be held guilty before the Company (and) shall be turned out of his bunyad (Flaka) and shall not toe allowed to come back to his place. Should any ghatwal invade your place (elaka) for committing depredation you should come up before huzur and lodge information; he shall be punished by huzur. Whenever you will be called for by huzur, you should present yourselves before huzur accompanied by sardar with a body, of archers and barkandazee. 307 in number of whom the Sardar will be 7 and the archers and barkandazes 300. You should guard the boundaries and limits of your (villages).

“Annual Jama of istamrarl mokarrari  (payable) year after  year.  (Torn in  the original) barkan-dazes and archers etc. 2.701.

Sikka
Rs.

Sanwat
Rs.

Deduct
59-2-0

Ala’
1,755
 
943
Sarf.

2,641-14-0

Sikka
Rs.

Sayar
Rs.

in Sanwat
Rs.a.p.

Ala’
1,755.

Rs.a.p.

466

coin.

Deduct

 
Deduct
31-4-0
Deduct
27-14-0
Sarf

 
Sarf
468-12-0
Sarf
418-2-0
at 0-1-0

 
(Bal)
 
(Bal)
 
per rupee
59-2-0.

Rs.a.p.

886-14-0
Sikka Ala

Dated Chakai, the 27th Rajab of the 18th year corresponding to 29th Bhado ‘ 1183 Fasli-the llth September, 1776.”

In 1794 a parwana, purporting to be a confirmatory grant, was made by Mr. Dickinson to the representatives of the original grantees, imposing upon them the same duties and providing that fresh sanads should not be required. In Satya Narayan Singh v. Satya Naranjan Chakravarti, ILR 3 Pat 183: (AIR 1924 PC 5) (B), these two documents of 1776 and 1794 were interpreted by the Judicial Committee and the nature and incidents of the Handwa Ghatwali tenure were elaborately discussed in the light of contemporaneous conduct and of prior history. It was held by Lord Sumner, who pronounced the opinion of the Judicial Committee, that the documents of 1776 and 1794 must be interpreted to mean a grant of perpetual hereditary tenure from the Government and also that the tenures were perpetual and hereditary tenures.

It was further held by Lord Summer that the express obligations imposed upon the grantees, as an integral part of the grant, to support, a specified number of barkandazes, and with them to attend the Huzur when required, showed that the tenure was a service tenure and was Ghatwali in nature. Lord Sumner also drew the conclusion that the tenure so granted was inalienable and indivisible and could not be sold in execution of a decree against the person of the incumbent of the office of the Ghatwali for the time being. At page 200-01 of the report Lord Sumner states:

“A further incident of such a tenure is the inalienability of the ghatwali lands, for it is obvious that, if the whole lands were alienated together at the choice of the ghatwal, he would be in a position either to make his own alienee, possibly a person non-resident or unfit, the ghatwal in succession to himself without the consent of his superior, or to deprive himself of the whole of the means provided to enable the services to be rendered, while himself retaining the office, whose obligations he could in consequence no longer fulfil. The office cannot, except by special custom, grant or other arrangement, either run with lands or be severed from them. If the lands are alienated piecemeal — and this must be involved in a right to alienate them at all–the same difficulty arises in another form, for here, the office being indivisible, the question is to which of a number of several purchasers of the lands is it to pass?

Hurlal Singh v. Jorawun Singh, 6 SDA 169 (C), Lelanund Singh v. Government of Bengal, 6 Moo Ind App 101 (D), Nilmoni Singh v. Bakranath Singh, ILR 9 Cal 187 (PC) (E), Leelanund Singh v. Munrunjun Singh, IA Supp Vol. 170 (F).”

4. At pp. 202-203 Lord Sumner states:

“No authority is forthcoming to show that a folding on the terms of both yielding a jama and
rendering a quasi-military service may not be consistent with the use of these words. Whether the service tenure is made a term or not, the holder might be a ‘zamindar’ or landholder and his holding be ‘perpetual’ and ‘on fixed terms’, and the position of Subhao Singh depends not on his being styled ‘raja’ and Zamindar, which are general expressions of consideration, but upon the condition upon which he held the land. , Their Lordships are further unable to refer the obligation to furnish a force of 307 men to any ordinary police administration of a Bengal zamindari. The force is precise and it is large; it is military rather than civil; but is fixed at a standing number at all times, and attendance beyond the scope of mere constabulary duties. Effect must be given to these very special and express words, and although no forfeiture is stated in case of non-compliance with them, it is only possible to do so by regarding them as descriptive of an obligatory service tenure, whether of the ordinary ghatwal type or not, and as the condition on which the ghatwal holds the lands”.

The argument presented on behalf of the plaintiff is that the Bihar Land Reforms Act (Bihar Act 30 of 1950) was not intended to be applied to a Ghatwali tenure like the Handwa Ghatwali. It was contended that as a matter of construction the Act does not apply to the Ghatwali estate. It was argued that the office of the Ghatwal was not separable from the land and that the Ghatwal’s descendants were entitled to possession of the land in perpetuity so long as they were willing to fulfil the obligations of their tenure. It was argued that the Ghatwali of the plaintiff was a service tenure and if the lands were taken away by the Government the Ghatwali would, not be able to perform the services imposed upon him.

It was argued that such an unreasonable intention could not be attributed to the legislature, I am unable to accept the argument of learned Counsel of the plaintiff as correct. Section 3 of Bihar Act 30 of 1950 enables the State Government to declare by notification that “the estates or tenures of a proprietor or tenure-holder, specified in the notification, have passed to and become vested in the State”.

Section 2 (q) of the Act defines a “tenure” as follows-:

(q) ‘tenure’ means the interest of a tenure-holder or an under-tenure-holder and includes –

(i) a ghatwali tenure,

(ii) a tenure created for the maintenance of any person and commonly known as kharposh, babuana, etc., and

(iii) a share in or of a tenure but does not include a Mundari Khunt Kattidari tenancy with in the meaning of the Chota Nagpur Tenancy Act, 1908, or a bhuinhari tenure prepared and confirmed under the Chota Nagpur Tenures Act, 1869.” Section 2 (r).

” ‘tenure-holder’ means a person who has acquired from a proprietor or from any other tenurfe-holder a right to hold land for the purpose of collecting rent or bringing it under, cultivation by establishing tenants on if and includes –

(i) the successors-in-interest of persons who have acquired such right,

(ii) a person who holds such right in trust,

(iii) a holder of a tenure created for the maintenance of any person,

(iv) a ghatwal and the successor-in-interest of a ghatwal, and

(v) where a tenure-holder is a minor or of unsound mind or an idiot, his guardian, committee or other legal curator.”

It is important to notice that the definition of a “tenure” in Section 2 (q) expressly includes a Ghatwali tenure. It was argued by learned Counsel on behalf of the .plaintiff that only zamindari Ghatwalis Were intended to be acquired under the Bihar Land Reforms Act and there was no intention to acquire Government Ghatwalis. I do not think this argument is valid. The expression “ghatwali tenure” in Section 2 (q) is unqualified and there are no restrictive words. I see, therefore, no reason why the expression should not be construed to include Ghatwali tenures of every description, namely, both the zamindari and the Government Ghatwalis. It should also be noticed that in Section 2 (q) the legislature has expressly excluded a Mundari Khunt Kattidari tenancy and a Bhuinhari tenure from the definition of a “tenure”.

If, therefore, the legislature intended to exclude a Government Ghatwali, there is no reason why it should not have expressly said so. As regards the definition of a “Tenure-holder” in Section 2(r) it was contended on behalf of the plaintiff that the Handwa Ghatwali was not a grant from the proprietor for the purpose of collecting rent or bringing the land under cultivation by establishing tenants on it. It was argued, therefore, that the plaintiff was not a tenure-holder within the meaning of Section 2 (r). There is no substance in this argument, because the definition of “tenure-holder” in Section 2 (r) has been artificially extended so as to include a Ghatwal and the successor-in-interest of a Ghatwal. It was then submitted by Counsel for the plaintiff that Section 23 (1) (f) would not apply to the case of Handwa Ghatwali.

It was pointed out that Chapter V of the Eihar Land Reforms Act deals with the assessment of compensation and Section 23 provides for the preparation of compensation assessment roll. The section sets out the method by which the compensation is to be determined, and in Clause (f) it is stated that the net income shall be computed by deducting from the gross asset “any other tax or legal imposition payable in respect of such estate or tenure not expressly mentioned in Clauses (a) to (e) or the value, to be commuted in the prescribed manner, of any services or obligations of any other form to be rendered or discharged as a condition precedent to his enjoyment “of such estate or tenure”. It was argued that this clause would not apply to the case of Handwa Ghatwali, because the plaintiff held her tenure not merely for services or obligations to be rendered or discharged as a condition precedent to her enjoyment of such tenure;

Counsel for the plaintiff relied upon the decision of the Judicial Committee in, ILR 3 Pat 183: (AIR 1924 PC 5) (B), and submitted that the plaintiff was entitled to possess the land comprised in her tenure so long as she was able and willing to perform the services or obligations. It was contended, therefore, that Section 23 (1) (f) has no application to the case of Handwa Ghatwali.

Assuming that the argument of the petitioner is right and Section 23 (1)(f) does not apply to the case of Handwa Ghatwali, it does not necessarily follow that Handwa Ghatwali cannot be acquired by the State Government under Section 3 of the Bihar Land Reforms Act. Section 23(1)(f) provides only for the deduction of a particular item from the gross asset of the tenure-holder for the purpose of computing the net income. Even if Section 23 (1) (f) does not apply, the statute provides for other deductions to be made for the purpose of calculating the net income of the tenure-holder. Sub-section (1) of Section 23 states:

“For the purposes of preparing Compensation Assessment roll, the net income of an intermediary shall be computed by deducting from the gross asset of such intermediary, as the case may be, the following,”;

then follow Clauses (a) to (e). According to Clause

(a), the net income of the proprietor or tenure-holder shall be computed by deducting from the gross asset any sum which was payable as land-revenue or rent including cesses to the State Government or to the immediately superior landlord, as the case may be, in respect of the estate or tenure for the previous agricultural year. Clause

(b) provides for the deduction of any sum which was payable by such proprietor or tenure-holder as agricultural income-tax. Clause (c) provides for the deduction of any sum which was payable by a proprietor or tenure-holder as income-tax in respect of any income derived from such estate or tenure, other than royalties. Clause (d) provides for the deduction of any sum which was payable as chaukidari tax or municipal tax in respect of any building or part of a building used primarily as an office or cutchery for the management of such estate or tenure.

Clause (e) provides for the deduction of cost of management of such state or tenure at the rates mentioned therein. It is, therefore, manifest that Section 23 does provide for the computation of net income in the case of a tenure-holder after making certain deductions. Even if Section 23 (1) (f) does not apply to the case of a Ghatwali, the compensation assessment roll can be prepared on the basis laid down in the other clauses of Section 23 (1). A submission was then made on behalf of the plaintiff that Section 32 (4) would not apply to the case of a Ghatwali estate. Section 32 (4) is in the following terms :

“32. (4) If the estate or tenure in respect of which, the compensation is payable is held by a limited owner or the holder of a life interest, the Compensation Officer shall keep the amount of compensation in deposit with the Collector of the district and the Collector shall direct the payment of the interest accruing on the amount of compensation to the limited owner or the holder of the life interest during his life time. Such amount shall remain deposited with the Collector until the amount of compensation or portion thereof after making payments, if any, under the proviso to this sub-section is made over to any person or persons becoming absolutely entitled thereto :

Provided that nothing in this sub-section shall be deemed to affect the right of any limited owner or the holder of a life interest to apply to the District Judge for the payment of a part of the amount of compensation to defray any expenses which may be necessary to meet any legal necessity”:

It was argued that Section 32 (45 would not apply to the Handwa Ghatwali because the expression “limited owner” could not be properly applied to the case of the plaintiff. It was argued that Section 32 (4) was intended to apply to the case of Hindu widows who hold limited interest, In this connection reference was made to the use of the expression “legal necessity” in the proviso to Section 32 (4). I am unable to accept this argument. I have already referred to the incidents of the Handwa Ghatwali, and according to the decision of Lord Sumner in. ILR 3 Pat 183: (AIR 1924 PC 5) (B), the tenure was a perpetual and hereditary tenure and was also inalienahle and indivisible and cannot be sold in execution of a decree against the person of the Ghatwal for the time being. It is, therefore, apparent that the plaintiff is in the position of a “limited owner” within the meaning of Section 32 (4). I do not think that the expressions “limited owner” and “legal necessity” are used in Section 32 (4) in any technical sense or in the sense ascribed to these expressions in Hindu law.

I do not think that Section 32 (4) was intended to apply only to those persons who are governed by Hindu law. It may well apply to those persons who are governed by other systems of personal law, like Muhammadan law or Christian law, or any other personal law, to which the tenure-holder or the proprietor is subject. I, therefore, consider that the plaintiff is in the position of a “limited owner” within the meaning of Section 32 (4). I shall, however, assume in favour of the plaintiff that Section 32 (4) has no application to the case of the Ghatwal. Even so, the statute makes a provision for payment of compensation to the tenure-holders like Ghatwals, Section 32 (1) of the Act states :

32. (1) When the time within which appeals under Section 27 may be made in respect of any entry in or omission from a Compensation Assessment roll has expired or where any such appeal has been made under that section and the same has been disposed of, the Compensation Officer shall proceed to make payment, in the manner provided in this section, to the proprietors, tenure-holders and other persons who are shown in such Compensation Assessment roll as finally published under Section 28 to be entitled to compensation, of the compensation payable to them in terms of the said roll after deducting from the amount of any compensation so payable any amount which has been ordered by the Collector under Clause (c) of Section 4 or under any other section to be so deducted”.

It was argued on behalf of the plaintiff that if Section 32 (1) applied to the case of a Ghatwal, the entire compensation money would be payable to the Ghatwals for the time being. It was argued that in such a case the Ghatwal could deal with the compensation money in any manner he liked and he could deprive his descendants of the right to the corpus of the compensation money. I have already said that the Ghatwal is a “limited owner” within the meaning of Section 32 (4) of the Act and a Ghatwal has perhaps no right to deal with the compensation money in any manner he likes. Even if Section 32 (4) of the Act did not apply to the the case of Handwa Ghatwali, the question as to what the Ghatwal would do with the compensation money cannot have any bearing on the interpretation of the expressions “ghatwal” and “ghatwali tenure” used in the definitions of “tenure-holder” and “tenure” In Sections 2 (r) and 2 (q) of the Statute.

I think there is nothing in the context or in the language of Sections 23 (1) or 32 (4) which affords any justification for cutting down or restricting the meaning of the “words “ghatwal” and “ghatwalli tenure” used in the definition of “tenure” and “tenure-holder” in Sections 2(q) and 2 (r) of the Bihar Land Reforms Act. On this point I would respectfully adopt the reasoning of Imam, C. J. in Manmohan Deo v. State of Bihar, ILR 34 Pat 57 (Fa). My concluded opinion is that the Bihar Land Reforms Act is applicable to the Handwa Ghatwali and the State Government has the lawful authority to apply the provisions of the Bihar Land Reforms Act to the Handwa Ghatwali of which the plaintiff is the proprietor.

5 I shall then deal with the argument that Handwa Ghatwali is a semi-military tenure and

that the State legislature is not competent to enact legislation for abolishing such a tenure. The contention was put forward that the office of the Ghatwal was not separable from the land and the effect of the State legislation is to indirectly abolish the office of the Handwa Ghatwal. In this connection Counsel for the plaintiff referred to the decision in, ILR 3 Pat 183: (AIR 1924 PC 5) (B), and submitted that the Handwa Ghawali has been held by the Judicial Committee to be a tenure of a semi-military character. The Government Advocate said that though the Handa Ghatwali was in its origin semi-military in character, it was quite unrealistic to describe any of the duties of the Handwa Ghatwal at the present day as military or semi-military in character.

It was argued that the duty of the office is at present confined to maintenance of public peace and support of the local police. There is much force in the argument of the learned Government Advocate, but I shall assume in favour of the plaintiff that the office of the Handwa Ghatwal is semi-military in character. Even so, I am unable to accept the contention of the plaintiff that the Bihar Land Reforms Act is unconstitutional because one of the incidental effects’ of the legislation is to abolish such a semi-military tenure. It is contended on behalf of the plaintiff that the Parliament alone is competent to enact legislation with regard to abolition of a semi-military tenure. Reference was made in this connection to items 1 and 2 of the Union List of the Seventh Schedule of the Constitution. Item 1 states:

“1. Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilisation.

Item 2 is:

“2. Naval, military and air forces; any other armed forces of the Union.”

But the assumption underlying the argument of the plaintiff is that the Bihar Land Reforms Act is legislation falling within items 1 and 2 of the Union List. This assumption, however, is unsound. Merely because the Bihar Act 30 of 1950 affects the land comprised in Ghatwali tenures, or merely because the Act has the indirect effect of abolishing semi-military tenures, it is not correct to argue that Bihar Act 30 of 1950 is legislation “with respect to” items 1 and 2 of the Union List.

The problem in this case is the problem of characterisation of the law or classification of the law. In other words, the question must be asked what is the subject-matter of legislation in] its “pith and substance” or in its true nature and character? We must find what is the primary matter dealt with in order to ascertain the class of subject to which it belongs.

Is the Bihar Land Reforms Act a law substantially with respect to acquisition of land, or is it a law substantially with respect to “naval, military and air forces” or to defence of India? . In. ‘Huddart Parker v. Moorehead’, 8 Comm. WLR, 410 (D) (G), Higgins J., observed:

“Now, how are we to determine what is the subject of any law, or any legislation, when two or more things that might be subjects of legislation are mentioned in it? The mere fact of mentioning corporations in these Sections 5 and 8 does not necessarily make them a law with respect to’–on the subject of — corporations.

If a Licensing Act provides that the Licensing court shall not transfer the license of a wife to her husband unless the husband be approved by the Court as a holder of a license, we should not call it legislation ‘with respect to’ marriage or marital relations. If an Act provides that every marriage shall be celebrated in the presence of two witnesses of full age, and shall be registered, we should not call it legislation ‘with respect to’ witnesses, or ‘with respect to’ infancy, or ‘with respect to registration.

The first is a law ‘with respect to’ dealing in intoxicating liquors; the second is a law ‘with respect to’ marriage. In the recent — ‘Bank Nationalisation case’, 76 Comm. WLR 1 (E) (H), Latham C. J., said: ‘It is not enough that a law should refer to the subject-matter or apply to the subject-matter; for example, income-tax laws apply to clergymen and to hotel-keepers as members of the public; but no one would describe an income-tax law as being, for that reason, a law with respect to clergymen or hotel-keepers.

Building regulations apply to buildings erected for or by banks; but such regulations could not properly be described as laws with respect to banks or to bankipg.”

(6) In the present case what is the subject-

matter of the legislation in its true nature and
character? The Act is entitled as Bihar Land
Reforms Act, 1950. The preamble state that it is
expedient to provide for the transference to the
State of the interests of the proprietors and
tenure-holders in land and of the mortgagees and
lessees of such interests, and to provide for the
constitution of a Land Commission for the State
of Bihar with powers to advise the State Government on the agrarian policy to be pursued. The
main provisions of the Act are designed to carry
out the purpose stated in the preamble :

It is manifest that the legislation falls entirely within item 36 of the State List, viz. “Acquisition or requisitioning of property, except for the purposes of the Union, subject to the provisions of entry 42 of List III.” In fact the question was much debated in ‘Kameshwar Singh v. State of Bihar‘, AIR 1951 Pat 91 (SB) (I), in which the Pull Bench held that the Bihar Land Reforms Act was covered by entry 36 of List II of the Constitution. In appeal the Supreme Court affirmed this view holding that the pith and substance of the Legislation was transference of ownership of estates to State Government and falls within the ambit of legislative head entry No. 36 of List II.

(7) Since the Act deals In pith and substance
with item 36 of the State List, the Act would be constitutionally valid though it incidentally trenches on matters reserved for Union Legislature. It is not a material consideration in such a case to what extent the Union field is invaded by the impugned statute. In ‘Prafulla Kumar v. Bank of Commerce Ltd., Khulna’, AIR 1947 PC 60 (J), the Judicial Committee had to consider the Bengal Money Lenders Act, 1940.

The Act undoubtedly restricted the rights of the holders of promissory notes to recover interest beyond a certain rate, and to that extent the legislation could be regarded as legislation in respect of Items 28 and 38 in the Federal Legislative List. But the Judicial Committee held that the Act was in pith and substance an Act dealing with money lending within entry 23 in the Provincial Legislative List, and that the Act was intra vires, and valid. At page 44 Lord Porter observed;

“No doubt where they come in conflict List I had priority over Lists III and II and List III has priority over list II, but the question still remains priority in what respect? Does the priority of the Federal Legislature prevent the provincial legislature from dealing with any matter which may incidentally affect any item in its list, or in each case has one to consider what the substance of an Act is and, whatever its ancillary effect, attribute it to the appropriate list according to its true character? In their Lordships’ opinion the latter is the true view.”

8. The question of conflict between Lists II and III arose directly in another case namely, –‘Megh Raj v. Allah Rakhia‘, AIR 1947 PC 72 (K), in which it was held that Section 107, Government of India Act, had no application in a case where the province could show, as it did in that case, that it was acting wholly within its powers under the …………..Provincial List, and was not relying on any power conferred on it by list III of the Concurrent List. In that case it was argued that the Punjab Restitution of Mortgaged Lands Act, 1938, was invalid in that a number of its provisions were in fact legislation on matters falling within list III, namely, items 7, ‘8 and 10 of that list.

The Judicial Committee, however, held that the impugned Act which dealt with mortgages on agricultural lands was legislation falling entirely within item 21 of the Provincial Legislative List, that is, land or any interest in land and, therefore, no question of repugnancy could arise by reason of the fact that the Act might trench to a certain extent upon the items in the Concurrent Legislative List. The whole argument in the case turned upon the effect of Sections 100 and 107 of the Government of India Act. At p. 22 Lord Wright observed:

“It follows that in their Lordships’ judgment there is not sufficient ground for holding that the impugned Act, or any part of it, was invalid. As a. whole it fell within the powers given to the province by items 2 and 21 of List II, without any necessity to invoke any powers from the Concurrent List, list III. Accordingly, question of repugnancy under Section 107, Constitution Act, do not) arise and need not be considered here.”

9. These cases demonstrate the principle that if the subject-matter of State legislation falls as a whole within a particular item in the State List the legislation is valid and no question of invalidity can arise even if the legislation trenches incidentally upon the items in the Union list. In the present case even if the Bihar Act 30 of 1950 trenches to some extent upon items 1 and 2 of the Union list, the legislation would be valid since the State legislature was acting wholly within its powers under the State Legislative List. The argument of Mr. G.P. Das on behalf of the plaintiff on this part of the case must be overruled.

10. In the decision of the Supreme Court in AIR 1952 SC 252 (A), the argument addressed on behalf of the Taluqdars of Oudh was that the Taluqdars were absolute owners of the holdings at the time of the annexation of Oudh in 1856, and after the mutiny the taluqdars were reinstated to their earlier status and their status was reaffirmed by the enactment of the Oudh Estates Act I of 1856 and that the permanent and hereditary rights of the Taluqdars under that Act in the lands granted to them under the sanads could not be affected by any legislation made by the successors in interest of the British Government. The argument was rejected by Mahajan J., who

pronounced the majority judgment of the Supreme
Court.

It was held by his Lordship that the Crown could not deprive a legislature of its legislative
authority by the mere fact that in the exercise of its prerogative it makes a grant of land within the territory over which such legislative authority existed, and no Court could annul the enactment of a legislative body acting within the legitimate scope of its sovereign competence.

If, therefore, it is found that the subject-matter of a Crown grant is within the competence of a Provincial legislature, nothing could prevent that legislature from legislating about it unless the Constitution itself expressly prohibited legislation on the subject, either absolutely or conditionally. It was also held by the Supreme Court that the circumstances that the U.P. Act I of 1851 affected the hereditary rights of the Taluqdars in Oudh in the lands granted under the sanad by the British Government did not make that Act Invalid.

In my opinion, therefore, the constitutional objection raised by counsel on behalf of the plaintiff must be rejected. I have also held, for the reasons already given, that as a matter of construction the Bihar Land Reforms Act is applicable to Handwa Ghatwali and that the State Government has lawful authority to apply the provisions of the Bihar Land Reforms Act to the Handwa Ghatwali of which the plaintiff is the proprietor. I would accordingly answer issue No. 4 against the plaintiff an a in favour of the defendant. It follows that the plaintiff is not entitled to any relief and the suit must fail. I would accordingly dismiss the suit of the plaintiff with costs.

Raj Kishore Prasad, J.

I agree.


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