PETITIONER:
THE STATE OF VINDHYA PRADESH(NOW MADHYA PRADESH)
Vs.
RESPONDENT:
MORADHWAJ SINGH AND OTHERS
DATE OF JUDGMENT:
24/02/1960
BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
SINHA, BHUVNESHWAR P.(CJ)
IMAM, SYED JAFFER
SARKAR, A.K.
SHAH, J.C.
CITATION:
1960 AIR 796 1960 SCR (3) 106
ACT:
Jagirs, Abolition of-Constitutional validity of enactment
Vindhya Pradesh Abolition of Jagirs and Land Reforms Act,
1952 (XI of 1952), SS. 22(1), 37, Schedule cl. (4)(e)-Code
of Civil Procedure (Act V of 1908), S. 9-Constitution of
India, Art. 31 A.
HEADNOTE:
These appeals raised the question of constitutional validity
of the Vindhya Pradesh Abolition of jagirs and Land Reforms
Act, I952 (XI Of 1952). Applications were made before the
judicial Commissioner under Art. 226 of the Constitution on
the ground that various provisions of the Act placed
unreasonable restrictions on the exercise of the fundamental
rights guaranteed by the Constitution. The judicial
Commissioner held that the Act, excepting S. 22(1), s. 37
and cl. (4)(e) of the Schedule to the Act, was
constitutionally valid. The State appealed against that
part of the order which declared the three provisions
unconstitutional and one of the petitioners appealed against
the order declaring the rest of the Act constitutional.
Held, that the appeal of the State must be allowed and that
of the petitioner dismissed.
It was not correct to say that S. 22 of the Act, which lays
down the scheme for giving, effect to S. 7(a) of the Act
which permits the jagirdars to remain in possession of
certain lands even after the abolition of their jagirs, is a
piece of colourable legislation and, therefore, ultra vires
the Legislature. That section cannot be said to
discriminate as between jagirdars on the one hand and other
occupants of land, to whom s. 28(1) applies, on the other,
since they belong to distinct and different classes.
107
Even assuming that they belong to the same class and S. 22
is discriminatory, that section is protected by Art. 31A of
the Constitution.
The question as to colourable legislation' is really one
relating to legislative competency and there can be no doubt
that the Vindhya Pradesh Legislature was perfectly competent
to enact the impugned provisions under Entry 18, List II of
the Seventh Schedule to the Constitution.
K. C. Gajapati Narayan Deo v. The State of Orissa. [1954]
S.C.R. i and Raghubir Singh v. The State of Ajmer (Now
Rajasthan). [1959] SuPP1. (1) S.C.R. 478, relied on.
There was no substance in the contention that s. 37 of the
Act is repugnant to s. 9 of the Code of Civil Procedure and
consequently ultra vires the State Legislature. The Vindaya
Pradesh Legislature had undoubtedly the power under Entry 3,
List II of the Seventh Schedule to make a provision like s.
37 Of the Act and, once it did so, the last part of s. 9 of
the Code would apply and the jurisdiction of the Civil
Courts would be barred by s. 9 of the Code read with S. 37
of the Act.
Nor was it correct to say that cl. (4)(e) of the Schedule
deprives the jagirdar of his proprietory interest without
compensation. Although he may have to pay rent for the land
remaining with him, no revenue for such land was any longer
payable by him and the revenue is taken into account in
assessing compensation.
The entire Act, therefore, falls within the protection of
Art. 31A of the Constitution and, in view of the decisions
of this Court, its constitutional validity is beyond
question.
Case-law referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 40 to 110
of 1955.
Appeals from the judgment and order dated November 12, 1953,
of the former Judicial Commissioner’s Court, Vindhya
Pradesh, Rewa, in Misc. Applications (Writ) Nos. 51 to 119
and 121 of 1953.
C. K. Daphtary, Solicitor-General of India, M. Adhikari,
Advocate-General for the State of Madhya Pradesh and I. N.
Shroff, for the appellant (in C.As. Nos. 40 to 109 of 55)
and respondent (in C.A. No. 110/55).
K. B. Asthana, S. N. Andley, J. B. Dadachanji, Rameshwar
Nath and P. L. Vohra, for the respondents (in C.As. Nos. 40,
51, 52, 54, 65 and 100155) and appellant (in C.A. No.
110/55).
1960. February, 24. The Judgment of the Court was
delivered by
108
WANCHOO, J.-These seventy-one appeals on certificates
granted by the Judicial Commissioner of Vindhya Pradesh
arise out of seventy petitions under art. 226 of the
Constitution filed before that Court challenging the
constitutionality of the Vindhya Pradesh Abolition of Jagirs
and Land Reforms Act, No. XI of 1952, (hereinafter called
the Act). They were disposed of by a common judgment by the
Judicial Commissioner. We shall also dispose of these
appeals, by a common judgment. Seventy (Nos. 40 to 109),
out of these appeals, are by the State ‘of Vindhya Pradesh
(now Madhya Pradesh) while one (No. 110) is by the Brijindar
Singh, a jagirdar.
The case of the petitioners in the Court of the Judicial
Commissioner was that the Act was unconstitutional as
various provisions in it placed an unreasonable restriction
on the exercise of the fundamental rights guaranteed to the
petitioners under Part III of the Constitution. The
-Judicial Commissioner held that the Act was constitutional,
except for three provisions thereof, namely, S. 22(1), s. 37
and cl. (4) (e) of the Schedule to the Act. The seventy
appeals by the ‘State are with respect to this part of the
order declaring these three provisions unconstitutional.
The appeal of Brijindar Singh is against that part of the
order by which the rest of the Act was held constitutional.
We shall first deal with the appeal of Brijindar singh.
Learned counsel for Brijindar Singh was unable-and in our
opinion rightly-to challenge the constitutionality of the
Act as a whole in view of art. 31-A of the Constitution and
the decisions of this court in The State of Bihar v.
Maharajadhiraja Sir Kameshwar Singh (1), Visweshwar Rao v.
The State of Madhya Pradesh (2) Raja Suriya Pal Singh v. The
state of U.P. (3), K. C. Gajapati Narayan Deo v. The State
of Orissa (4), Thakur Amar Singhji v. The State of Rajasthan
(5), Raja Bhairebendra Narayan Bhup v. “he State of Assam
(6), Sri Ram Ram Narain v. The state of Bombay (7), Raghubir
Singh v. The State of Ajmer (now Rajasthan) (8) and Atma Ram
v. The State of Punjab (9), relating to similar legislation
in the
(1) [1952] S.C R. 889.
(2) [1952] S.C R. 1020.
(3) [1952] S.C.R. 1056.
(4) [1954] S.C.R. i.
(5) [1955] 2 S.C.R. 303.
(6) [1956] S.C.R. 303.
(7) [1939] SUPPL. (1)S.C R. 499
(8) [1959] Suppl. (1) S.C.R. 478
(9) [1959] Suppl. (1) S.C.R. 748.
109
States of Bihar, Madhya Pradesh, Uttar Pradesh Orissa,
Rajasthan, Assam, Bombay, Ajmer and Punjab. It is not
necessary therefore to examine the provisions of the Act in
detail. In the circumstances, Appeal No. 110 is dismissed;
but as it was not pressed we think it right that the parties
should bear their own costs of this appeal.
Now we turn to the appeals by the State. The object of the
Act is to resume jagir-lands. Sec. 5 provides for the
appointment of a date for the resumption of any class of
jagir-land by notification and power is given to the State
Government to fix different dates for different classes of
jagir-lands. Sec. 6 provides for the consequences of such
resumption. Sec. 7, however lays down that notwithstanding
anything contained in s. 6, certain lands will remain in
possession of jagirdars and cl. (a) thereof is material and
may be quoted here-
” The jagirdar shall continue to remain in possession of his
sir and khudkasht to the extent and subject to the
conditions and restrictions specified in Ch. IV. ”
Sec. 10 and the subsequent sections appearing in Ch. III of
the Act provide for compensation and the Schedule provides
the manner in which the compensation shall be computed.
Then comes Ch. IV, which deals with sir and khudkasht
lands. See. 20 provides for an application by the jagirdar
for allotment of land for personal cultivation. See. 21
provides for an enquiry by the Tahsildar on such application
in the prescribed manner, and the allotment of land and the
issue of a patta thereof to the jagirdar having regard to
the remaining provisions of the Chapter. Then comes s. 22,
which may be quoted in full-
” (1) A jagirdar shall be allotted all sir and khudkasht
lands which he was cultivating personally for a continuous
period of three years immediately preceding the date of
resumption.
” (2) A jagirdar whose jagir-lands have been resumed under
this Act-
(a) who is not allotted any sir or khudkasht land under
sub-section (1), or
110
(b) who had been allotted any such land which is less than
the minimum area,
may if he applies in this behalf, be allotted any other sir
or khudkasht land in his personal cultivation at the date of
resumption or where there is no such land or sufficient area
of such land any unoccupied cultivable waste land in the
jagir-land subject to availability of such land, so that-
(i) in a case falling under cl. (a), the total area
allotted to him under this sub-section is equal to the
minimum area, and
(ii) in a case falling under cl. (b), the area allotted to
him under this sub-section together with the area allotted
under sub-section (1) is equal to the minimum area.
Explanation-In this sub-section, the expression minimum
means ten per cent. of the total cultivated land in the
jagir-land at the date of resumption or 30 acres whichever
is greater:
Provided that in no case the minimum area shall exceed 250
acres.”
Chapter V deals with rights of tenants, grove holders and
occupants in jagir-land and confers certain benefits on
them. Chapter VI provides for the machinery and the
procedure for carrying out the purposes of the Act. The
last section (42) gives power to the State Government to
make rules to carry out the purposes of the Act.
The learned -Judicial Commissioner has held that s. 22(1)
is a colourable piece of legislation. The scheme of s. 22
is to give effect to s. 7(a) by which certain lands were
allowed to remain in the possession of the jagirdar.
Section 22(1) lays down that all sir and khudkasht lands
which a jagirdar was cultivating personally for a continuous
period of three years immediately preceding the date of
resumption shall be allotted to him by the Tahsildar. Sub-
section (2) provides for those cases where there is no land
which can be allotted to a jagirdar under sub-s. (1) or
where the land, which can be allotted to him under sub-sec-
tion (1) is less than the minimum area as defined in the
section. In such a case the jagirdar can be allotted any
other sir or khudkasht land in his personal culti-
111
vation at the date of resumption upto the minimum area.
Where, however, the minimum is not reached even after such
allotment, the jagirdar can be allotted under sub-s. (2) any
unoccupied cultivable waste land in the jagir subject to
availability of such land upto that area. The minimum area
means ten per cent. of the total cultivated area in the
jagir at the date of resumption or 30 acres whichever is
greater subject to the proviso that in no case the minimum
area shall exceed 250 acres. In other words, s. 22 (1)
provides that in the first instance the jagirdar will get
all his sir and khudkasht land which he had been cultivating
for three years continuously before the date of resumption.
If, however, there is no such land or if the land of this
kind allotted to a jagirdar is less than the minimum area he
will be entitled to further allotment out of the sir or
khudkasht land in his possession for less than three years
to make up the minimum area. Lastly if the minimum area is
not made up even by allotment of such land which has been in
the jagirdar’s possession for less than three years he will
be entitled to allotment of unoccupied cultivable waste land
subject to availability of such land to make up the minimum
area; but the provisions of sub-s. (2) are subject to a
minimum of 250 acres. We have not been able to understand
how these provisions can be called a piece of colourable
legislation. The learned Judicial Commissioner seems to be
of the view that as a period of three years’ continuous
cultivation is made a condition of allotment under s. 22(1),
there is discrimination between jagirdars and other
occupants of land in whose case s. 28(1) provides that every
person who is entered in the revenue record as an occupant
of any jagir-land at the date of resumption, shall be deemed
to be pattadar tenant in respect of such land which shall be
assessed at the village rate. The learned Judicial
Commissioner was not unconscions of the provisions of art.
31-A which lays down that no such legislation would be
struck down on the ground of discrimination under art. 14.
He however thought that this was an extra condition which
had been imposed so that the jagirdar might.be deprived of
as much sir and khudkasht land as possible subject
112
to the minimum and that this was done to create in-
convenience to the jagirdars whom the legislature did not
like. He therefore thought that such legislation was
altogether outside the power of the legislature and was
invalid as a colourable piece of legislation.
In the first place we cannot see how any discrimination can
arise in circumstances like this, for the jagirdars are
obviously one class while the occupants of lands other than
jagirdars belong to another class. Secondly, even if it
could be held that jagirdars and other occupants of land
stood in the same class and there was discrimination under
s. 22(1) as compared to s. 28(1), such discrimination could
not be a ground for striking down s. 22(1) in view of the
specific constitutional provision in art. 31-A. It was
because of -this difficulty that the learned Judicial
Commissioner did not strike down s. 22(1) on the ground of
discrimination but held that it was a colourable piece of
legislation. What is a colourable piece of legislation has
been laid down by this Court in K. 0. Gajapati Narayan Deo
v. The State of Orissa (1). It was pointed there that :-
“The question whether a law was a colourable legislation and
as such void did not depend on the motive or bona fides of
the legislature in passing the law but upon the competency
of the legislature to pass that particular law, and what the
courts have to determine in such cases is whether though the
legislature has purported to act within the limits of its
powers, it has in substance and reality transgressed those
powers, the transgression being veiled by what appears, on
proper examination, to be a mere pretence or disguise. The
whole doctrine of colourable legislation is based upon the
maxim that you cannot do indirectly what you cannot do
directly.”
Applying this principle it is obvious that the Vindhya
Pradesh legislature in this case had full competence to make
this provision under Entry 18, List II of the Seventh
Schedule. There is no question here of transgressing those
powers and veiling the transgression under a pretence or
disguise. We do not think it was proper for the Judicial
Commisisioner to
(1) [1954] S.C.R. (1)
113
ascribe motives to the legislature as he seems to have done
by saying that the provision was made for creating
inconvenience to a class whom the legislature did not like.
Nor do we think that there is any force in the argument that
art. 31-A has no application to provisions dealing with
allotment of land, for ss. 7 and 22 of the Act work out the
scheme of acquisition of estates and are incidental
provisions which are equally protected under that Article
along with the main provisions contained in ss. 5 and 6 of
the Act; (see Raghubir Singh v. The State of Ajmer (now
Rajasthan) (1). The provisions of s. 22 as a whole provide
a scheme for carrying out the intention of the legislature
expressed in s. 7(a) of the Act and are in our opinion
perfectly constitutional.
We now turn to s. 37 of the Act. That section appears in
the procedural part of the Act and is as follows:-
” (1) No civil court shall have jurisdiction to settle,
decide or deal with any question which is, by or under this
Act, required to be settled, decided or dealt with by the
Tahsildar, the Deputy Commissioner, the Land Reform
Commissioner, or the Board of Revenue.
(2) Except as otherwise provided in this Act no order of a
Tahsildar, a Deputy Commissioner, the Land Reform
Commissioner, or the Board of Revenue under this Act shall
be called in question in any court.”
Sub-s. (1) thus takes away the jurisdiction of the civil
court to decide any matter which under the Act is to be
decided by the Tahsildar, the Deputy Commissioner, the Land
Reform Commissioner or the Board of Revenue. Sub-s. (2)
provides that no order passed by any of these authorities
shall be called in question in any court. The learned
Judicial Commissioner has held this section invalid on the
ground that it.is repugnant to s. 9 of the Code of Civil
Procedure, inasmuch as it takes away the jurisdiction of the
civil court which it has under that section. Sec. 9 lays
down that the civil courts shall have jurisdiction to try
all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
(1) (1959] Suppl (1) C.R. 478
114
Sec. 9 therefore gives jurisdiction to civil courts to try
all suits of a civil nature excepting those which are
expressly or impliedly barred by any other law. The
provision of s. 37 is an express bar to the matters dealt
with in the Act being agitated in civil courts. The learned
Judicial Commissioner seems to think that s. 9 takes away
the power of the legislature of a Part State like Vindhya
Pradesh to legislate with respect to the jurisdiction of
courts. The power to the legislature is given by Entry 3,
List 11 and cannot be affected by s. 9 of the Code of Civil
Procedure. As a matter of fact s. 9 recognises that if a
competent legislature passes a law barring the jurisdiction
of a civil court, the jurisdiction of the civil court to
take cognizance of such suit, even though of a civil nature,
is ousted. It was in our opinion unnecessary to go into s.
22 of the Government of Part C States Act, No. XLIX of 1951
and compare it with art. 254 of the Constitution in this
connection. Sec. 37 does not in any way affect s. 9. All
that it provides is that civil courts shall have no
jurisdiction to hear certain matters of a civil nature; and
s. 9 expressly recognizes that if such a provision is made
by any law, the jurisdiction of the civil courts will
disappear. There is thus no question of any repugnancy
between s. 9 of the Code of Civil Procedure and s. 37 of the
Act. The legislature in this case had power to make a
provision like s. 37 and once it did so, the last part of s.
9 will apply and the jurisdiction of the civil courts will
become barred by virtue of s. 9 read with s. 37 of the Act.
The decision of the Judicial Commissioner there. fore that
s. 37 is ultra vires the powers of the Vindhya Pradesh
legislature is not correct.
Lastly we come to el. (4) (e) of the Schedule. The Schedule
provides for the method of computing compensation. Clause
(3) lays down the manner in which the gross income of a
jagirdar shall be arrived at. Clause (4) lays down how net
income will be arrived at after making certain deductions.
One of these deductions is in sub-cl. (e) of this Clause,
which is as follows:-
“Where the jagirdar is allotted any sir. or khudkasht or
other land or any grove under this Act an
115
amount equal to the valuation of rent for such land or grove
for the basic year at the current settlement rates (less the
land revenue paid by him in respect of such land and grove
in the basic year to be ascertained in such manner as may be
prescribed).”
This sub-clause is in fact a contra entry to sub-cl. (b)
(i) of cl. (3). The method of calculation provided by these
two clauses is that the gross income is first arrived at
without taking into account the land which remains with the
jagirdar under s. 7 (a). Thereafter in order to arrive at
the net income for the purpose of compensation the rent for
sir and khudkasht land which remains with the jagirdar is
taken into account and its value determined under el. (3)
(b) (i) minus the revenue payable in respect thereof. This
is then deducted from the gross income, for the reason that
this land remains, with the jagirdar. The learned Judicial
Commissioner thinks that the arithmetical result of this
provision is that so far as these lands are concerned the
landlord has lost his proprietary interest and has to pay
rent to the government, but at the same time gets no
compensation. it should however be noted that though the
landlord may have to pay rent in future for the land
remaining with him, he does not pay any revenue which was
payable by him so far with respect to such land. In the
circumstances, it cannot be said that he has been deprived
of the proprietary interest without any compensation, for he
is relieved of the charge of paying land revenue which has
also been taken into account in arriving at the net assets
for that purpose, and that is all that he can expect
considering that the land remains in his possession for all
other purposes. We are therefore of opinion that there is
nothing unconstitutional in el. (4) (e) of the Schedule.
We therefore dismiss Appeal No. 110 but order parties to
bear their own costs. We allow Appeals Nos. 40 to 109 and
hold that s. 22 (1), s. 37 and cl. (4) (e) of the Schedule
are valid and constitutional. As the respondents in these
appeals have not seriously contested them we order parties
to bear their own costs.
Appeal No. 110 dissmissed.
Appeals Nos. 40 to 109 allowed.
116