PETITIONER:
THAKUR RAGHUBIR SINGH
Vs.
RESPONDENT:
COURT OF WARDS, AJMER, AND ANOTHER.
DATE OF JUDGMENT:
15/05/1953
BENCH:
MAHAJAN, MEHR CHAND
BENCH:
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
HASAN, GHULAM
BHAGWATI, NATWARLAL H.
JAGANNADHADAS, B.
CITATION:
1953 AIR 373 1953 SCR 1049
CITATOR INFO :
D 1955 SC 795 (9)
R 1956 SC 559 (4)
R 1958 SC 578 (177)
R 1959 SC 459 (40)
E 1959 SC 519 (13)
D 1960 SC 468 (6)
R 1961 SC 705 (13)
E 1961 SC 954 (23)
RF 1962 SC1371 (36,41)
R 1965 SC 632 (11)
R 1969 SC 168 (11)
ACT:
Constitution of India, 1950, arts. 19(1) (f), 19(5),
31-A-Ajmer Revenue and Land Records Act (XLII of 1950) s.
112-Ajmer Government Wards Regulation (I of 1888), ss. 6, 7-
Law declaring landlords who habitually infringe the rights
of a tenant to be disqualified proprietors and empowering
Court of Wards to assume management of their lands -
Validity-Infringement of fundamental right-Reasonableness-
Scope of article 31-A-"Modification of rights," meaning of.
HEADNOTE:
Section 112 of the Ajmer Tenancy and Land Records Act
(XLII of 1.950) provided that "if a landlord habitually
infringes the rights of a tenant under this Act, he shall,
notwithstanding any thing in section 7 of the Ajmer
Government Wards Regulation, 1888 (I of 1888) be deemed to
be a 'landlord who is disqualified to manage his own
property' within the meaning of section 6 of the said
Regulation and his property shall be liable to be taken
under the superintendence of the Court of Wards." Section 6
of Regulation I of 1888 provided that the Court of Wards
may, with the previous sanction of the Chief Commissioner,
assume the superintendence of the property of any landholder
who is disqualified to manage his property. The petitioner,
whose estate was taken over by the Court of Wards under the
above-mentioned provisions of law, applied for relief under
art. 32 of the Constitution for restoration of his estate
and other appropriate reliefs:
Held, (1) that the result of the combined operation of
s. 112 of Act XLII of 1950 and the provisions of ss. 6 and 7
of Regulation I of 1888 was that the Court of Wards could in
its own discretion and on its subjective determination
assume the superintendence of the property of a landlord who
habitually infringed the rights of his tenants, and the
exercise of the discretion of the Court of Wards cannot be
questioned in a civil court; s. 112 of Act XLII of 1950 read
with the provisions of Regulation I of 1888 therefore
infringed the fundamental rights of the petitioner
guaranteed by art. 19 (1) of the Constitution and was to
that extent void;
(ii) the provisions of s. 112 cannot be regarded as a "
reasonable" restriction imposed in the interests of the
general public on the exercise of the right conferred by
art. 19 (1) (f), because they completely negatived the right
by making its enjoyment depend on the mere discretion of the
executive;
136
1050
(iii)that s. 112 was not validated by art. 31-A of the
Constitution as it was not "a law providing for the
acquisition by the State of any estate or of any rights
therein or for the extinction or modification of any such
rights" within the meaning of art. 31-A. The word
"modification" in the context of art. 31-A only means a
modfication of the proprietary right of a citizen like an
extinguishment of that right and cannot include within its
ambit a mere suspension of the right of management of the
estate for a time, definite or indefinite.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 29 of 1953.
Petition under article 32 of the Constitution of India
praying that the Court of Wards, Ajmer, be ordered to
forbear from carrying on the superintendence of the
istimrari estate and other properties of the petitioner and
for restoration of possession and management of the said
estate and properties.
J.B. Dadachanji and H. C. Sogain for the appellant.
M.C. Setalvad, A ttorney-General for India, (Bhava
Datta Sharma, with him) for the respondents.
1953. May 15. The Judgment of the Court was delivered by
MAHAJAN J.-This is a petition under article 32 of the
Constitution seeking relief against alleged infringement of
certain fundamental rights of the petitioner and arises in
these circumstances.
The petitioner owns an ” istimrari estate” in the State
of Ajmer under an istimrari sanad granted to his ancestor in
the year 1875. He enjoys therein a life interest with an
obligation to perform certain duties as prescribed by the
Ajmer Land and Revenue Regulation (11 of 1877).
The Deputy Commissioner of Ajmer, who is the Court of
Wards constituted under the Ajmer Government Wards
Regulation (I of 1888), took over possession and assumed
superintendence of the said estate on the 18th September,
1952, purporting to act under sections 6 and 7 of the
Regulation read with section 112 of the Ajmer Tenancy and
Land Records Act, 1950 (XLII of 1950), and hence this
petition for a writ of mandamus or one in the nature
thereof, or for the issue
1051
of a direction to the Court of Wards for restoration of
possession of the estate and for an order directing it to
forbear from carrying on the superintendence of the estate.
The order made by the Court of Wards on the 18th
September, 1952, is impugned as being void and of no effect
whatever, because it is alleged that the statutory
provisions under which it is purported to have been made
contravene the provisions of Part III of the Constitution
and take away and abridge the petitioner’s rights guaranteed
by article 19 (1) (f) of the Constitution.
Section 112 of Act XLII of 1950 is one of a group of 7
sections in Chapter X of the Act which deals with the
subject of ” Compensation and Penalties “. The section
prescribes penalties for habitual infringement of rights of
tenants and reads thus:-
” If a landlord habitually infringes the rights of a
tenant under this Act, he shall, notwithstanding anything in
section 7 of the Ajmer Government Wards Regulation, 1888 (I
of 1888), be deemed to be a “landlord who is disqualified to
manage his own property ” within the meaning of section 6 of
the said Regulation and his property shall be liable to be
taken under the superintendence of the Court of Wards “.
The preceding section 110 is in these terms:-
“If a landholder or his agent collects from a tenant
any lag or neg, he shall be deemed to have committed an
offence of extortion within the meaning of the Indian Penal
Code (Act XLV of 186O)
Just as section II 0 declares an illegal exaction by a
landlord to be an offence under the Indian Penal Code, in
like manner, section 112 declares a landlord who habitually
infringes the rights of a tenant ” a person disqualified to
manage his own property ” within the meaning of section 6 of
Regulation I of 1888, the consequence being that his
property becomes liable to be taken over by the Court of
Wards. The section is an ingenious and novel device to
punish landlords who habitually infringe the rights of
tenants. It authorizes
1052
the use for punitive purposes of the machinery of Regulation
I of 1888 enacted to make better provision for the
superintendence of Government Wards in AjmerMerwara. By
force of the declaration in section 112 of the Act,
landlords who habitually infringe the rights of the tenants
fall within the category of persons incapable of managing
their own property and come within the ambit of section 6 of
the Regulation, which is in these terms:-
,, The Court of Wards may, with the previous sanction of the
Chief Commissioner, assume the superintendence of the
property of any landholder who is disqualified to manage his
own property “.
The result therefore of the combined operation of sec-
tion 112 of Act XLII of 1950 and of the provisions of
Regulation I of 1888, is that the Court of Wards can in its
own discretion and on its subjective determination, assume
the superintendence of the property of a landlord who
habitually infringes the rights of his tenants. The
condition precedent to such assumption of superintendence is
the previous sanction of the Chief Commissioner, the giving
of which is also a matter entirely resting on his
discretion. Section 27 of Regulation I of 1888 provides
that ” the exercise of any discretion conferred on the Court
of Wards or the Chief Commissioner by this Regulation shall
not be called in question in any civil court “. It was
conceded by the learned Attorney-General appearing for the
State of Ajmere that there was nothing in the contents of
either Act XLII of 1950 or Regulation I of 1888 which
provided a machinery for determining the question whether a
certain landlord was a person who was habitually infringing
the rights of his tenants. Under Regulation I of 1888, the
assumption by the Court of Wards of the superintendence of
the property of a disqualified proprietor depends merely on
the subjective determination of the Deputy Commissioner or
the Commissioner or of the Chief Commissioner, and the
exercise of this discretion cannot be questioned in any
manner in a civil court. Act XLII of 1950 says nothing
whatsoever on this subject.
1053
The contention that the provisions of section 112 of
Act XLII of 1950 read with the provisions of Regulation I of
1888 infringe the fundamental right of the petitioner
guaranteed by article 19 (1) (f) of the Constitution, is, in
our opinion, well-founded and does not require any elaborate
discussion. The petitioner’s right to hold the istimrari
estate and his power of disposal over it stand abridged by
the act of the Court of Wards authorized by these
provisions. His right to manage the estate and enjoy
possession thereof stands suspended indefinitely and until
the time that the Court of Wards chooses to withdraw its
superintendence of the property of the petitioner. During
this period, he can only receive such sums of money for his
expenses as the Court of Wards decides in its discretion to
allow. Thus, the provisions of section 112 of Act XLII of
1950 clearly abridge the fundamental right of the petitioner
under article 19 (1) (f) and are to that extent void.
The learned Attorney-General canvassed for the validity
of the provisions of section 112 on three grounds. He
contended that the determination of the question whether a
certain landholder was a person who habitually infringed the
rights of his tenants did not depend on the opinion of the
Court of Wards, but was a matter that could be agitated and
canvassed in a civil court. It was said that there were no
words in the section from which it could be inferred that
the determination of this fact depended on the subjective
determination of the Court of Wards. It was emphasized that
the section had not used the familiar language “in its
opinion” or words like that, which are usually employed to
indicate whether a matter depends on the subjective
determination of an authority or whether it can be agitated
in a civil court. This contention, in our opinion, is not
well-founded. As already pointed out, Act XLII of 1950 has
prescribed no machinery for the determination of the
question whether a landlord is guilty of habitually
infringing the rights of his tenants, and rightly so,
because section II 2 of the Act is merely of a declaratory
character and
1054
declares such a landlord as being under a disability and
suffering from an infirmity. This declaration becomes
operative and effective only when the Court of Wards in its
discretion decides to assume superintendence of the property
of such a proprietor. In other words, when the Deputy
Commissioner or the Commissioner or the Chief Commissioner
is of the opinion that such a proprietor should be deprived
of possession of his property, this determination then
operates to the prejudice of the landlord, but he cannot
challenge the exercise of the discretion by these officers
in view of the provisions of section 27 of Regulation I of
1888. The result then is that by the subjective
determination of the Court of Wards, both the questions
whether a particular person habitually infringes the rights
of his tenants and whether his property should be taken over
by the Court of Wards, stand settled and the landlord cannot
have recourse to a civil court on these questions. The
learned Attorney-General was not able to draw our attention
to any provision in the Court of Wards Act or in Act XLII of
1950 which enabled the landlord, held to be a habitual
infringer of the rights of his tenants, to have recourse to
a civil court to test the correctness of the determination
made by the Court of Wards. The provisions of Regulation of
1888 clearly indicate the contrary.
Next, it was argued that the provisions of section 112
amount to reasonable restrictions on the exercise of the
right conferred by article 19 (1) (f) of the Constitution on
a citizen, and these restrictions are in the interests of
the general public. In our judgment, this. argument also is
not sound. As indicated above, the provisions of section
112 of Act XLII of 1950 are penal in nature and are intended
by way of punishment of a landlord who habitually infringes
the rights of his tenants. He is punished by being placed
at the mercy of the Court of Wards and by being made subject
to the stringent provisions of Regulation I of 1888. An
enactment which prescribes a punishment or penalty for bad
behaviour or for misconduct of a landlord cannot possibly be
regarded as restriction on a fundamental
1055
right. Indeed, a punishment is not a restriction. This was
frankly conceded by the learned Attorney-General. It is
still more difficult to regard such a provision as a
reasonable restriction on the fundamental right. When a law
deprives a person of possession of his property for an
indefinite period of time merely on the subjective
determination of an executive officer, such a law can, on no
construction of the word “reasonable” be described as coming
within that expression, because it completely negatives the
fundamental right by making its enjoyment depend on the mere
pleasure and discretion of the executive, the citizen
affected having no right to have recourse for establishing
the contrary in a civil court. Section 112 of Act XLII of
1950 cannot therefore be held valid as coming within the
scope of article 19 (5) of the Constitution.
Lastly, it was contended by the learned AttorneyGeneral
that section 112 was valid by reason of the curative
provisions of article 31 -A of the Constitution. That
article validates laws which would otherwise contravene the
fundamental right in article 31(2) of the Constitution, but
its operation is restricted to laws providing for
acquisition of estates etc. It runs as follows:-
” Notwithstanding anything in the foregoing provi-
sions of this Part, no law providing for the acquisition by
the State of any estate or of any rights therein or for the
extinguishment or modification of any such rights shall be
deemed to be void on the ground that it is inconsistent with
or takes away or abridges any of the rights conferred by any
provisions of this Part……..
Section II 2 of Act XLII of 1950, intended to regulate
the rights of landlords and tenants, is obviously not a law
providing for ” the acquisition by the State ” of the
estates of the landlords, or of any rights in those estates.
It is also not a law providing for the extinguishment or
modification of any such rights. The learned Attorney-
General laid emphasis on the word modification ” used in
article 31 -A, That word in
1056
the context of the article only means a modification of the
proprietary right of a citizen like an extinguishment of
that right and can not include within its ambit a mere
suspension of the right of management of estate for a time,
definite or indefinite. Historically speaking, article 31
-A which has relation to article 31(2) of the Constitution,
has no relevancy whatsoever to the law enacted in section
112 of the Act XLII of 1950.
For the reasons given above, we are of the opinion
that the law enacted in section 112 of Act XLII of 1950 is
not saved either by clause (5) of article 19 or by article
31-A of the Constitution. It manifestly infringes the
fundamental right of the petitioner guaranteed by article 19
(1) (f) of the Constitution. That being so, the petitioner
is entitled to a direction that possession of his estate be
restored to him. We accordingly direct the Court of Wards,
Ajmer-Merwara, constituted under the Ajmer Government Wards
Regulation, I of 1888, to forbear from carrying on superin-
tendence of the petitioner’s istimrari estate and the other
properties taken possession of, and to restore their
possession to the petitioner. The petitioner will have the
costs of this petition.
Petition allowed.
Agent for the petitioner : I. N. Shroff.
Agent for the respondents: G. H. Rajadhyaksha.
1057