@JUDGMENTTAG-ORDER
1. The civil appeals No. 13 14 to 13 18 of 1979 by certificate are directed against the decision of the Judicial Commissioner of Goa, Daman and Diu, declaring the Goa, Daman and Diu Agricultural Tenancy (5th Amendment) Act, 1976, as unconstitutional. The respondents are landlords in Goa. The lands were in possession of the tenants who were cultivating the same and paying rent to the respondents. The respondents were divested of their title in the lands by the provisions of the impugned Act which came in force in 1976 vesting the same in the tenants. The respondents filed five writ applications in the court of the Judicial Commissioner challenging the validity of the Amendment Act. The writ petitions were allowed by the impugned judgment. It has been held that the Act violates Articles 14 and 19 of the Constitution and the protection of Article 31A is not available as the scheme of the Act does not constitute agrarian reform.
2. It has been contended on behalf of the respondent-writ petitioners that the landlords in Goa are generally small land-holders and their condition is not better than that of the tenants and in that view the Act divesting the landlords of their title in the land and Vetting the same in the tenants suffers from the vice of illegal discrimination. A similar Act was earlier passed by the Maharashtra Legislature also which has been found to be constitutionally valid. The writ petitioners have, before the court below, successfully argued that the decision in that case is not applicable inasmuch as the Maharashtra Act contains provisions fixing ceiling to which the other provisions are subject to, while there is no such restriction in the present Act. The result is that although the Maharashtra Act had to be upheld as a measure of agrarian reform and thus protected by Article 31A of the Constitution, the present Act cannot be so interpreted.
3. During the pendency of these appeals the impugned Amendment Act along with the main Act were included in the 9th Schedule of the Constitution and the assent of the President was received on the 26th of August, 1984. Smt. Lakshmibai Narayan Patil, the writ petitioner in the three of the cases in the court of Judicial Commissioner (respondent in Civil Appeals No. 1314, 1315 and 1316 of 1979) has challenged the constitutional amendment as illegal and ultra vires by filing an application under Article 32 of the Constitution which has been numbered as Writ Petition No. 864 of 1988.
4. By the impugned Amendment Act, Chapter IIA has been included in the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter referred to as the Act), Chapter III has been deleted and some consequential changes have been made in some other sections. Chapter IIA deals with "Special rights and privileges of tenants" as indicated by the heading. Broadly speaking, by the provisions of Section 18A of this Chapter the land belonging to a landlord not in his cultivating possession on the tiller's day gets transferred to the tenant-in-possession for a price to be paid to the landlord. The expression 'tenant' has been given a larger meaning under the Act by Section 4. By the second proviso of Section 4 a sub-tenant cultivating any land on or after 1.7.1962 has to be deemed to be a lawfully cultivating tenant notwithstanding the fact that the creation of sub-tenancy might have been prohibited by any law, and the tenant prior to the creation of the sub-tenancy (who may be referred to as intermediary tenant) is not to be treated as a tenant. The price of the land in question has to be determined and the payment made in accordance with the provisions of Chapter IIA. Separate provisions have been made with respect to special cases where tenant is a minor or has been evicted by the landlord before the tiller's day. The provisions of Section 18-J provide for the resumption and disposal of the land not purchased by the tenant by reason of purchase being ineffective u/s 18C or Section 18H or due to the failure of the tenant to take steps u/s 18B within time. A revenue officer described as Mamlatdar is vested with the power to dispose of such land in the manner provided in Sub-section (2) of Section 18J. Such land has to be disposed of in the order of priority, where-under 75% of such land is to be disposed of by sale to persons belonging to Scheduled Castes or Scheduled Tribes and thereafter the remaining land to serving members of the Defence Forces of the p country or ex-servicemen or freedom fighters who agree to cultivate the land personally. If the land still remains undisposed of, it first goes to agricultural labourers and thereafter to landless persons. If some of the land still remains available, it has to be sold to a co-operative farming society. Section 18-K puts a restriction on transfer of the land which the tenant acquires by purchase under the Chapter. Only with the previous sanction of the Mamlatdar any transfer whether by sale, gift, exchange, mortgage, lease or assignment can be made.
5. If the land-owner is himself cultivating it, there being no tenant or a deemed tenant he continues to be in possession without any curtailment of his rights. On the other hand, in a case where the tenant after getting a tenancy from the landlord inducts another person as a sub-tenant who cultivates the same, the benefits of the impugned provisions go to him and not to the tenant. The object of the Amending Act is thus clearly to vest the land in the tiller. The right of any person to receive merely rent is taken away for a price. The respondents who are landlords, have challenged the Amendment Act whereby Chapter HA has been inserted in the Act on the ground of illegal discrimination. The argument is that in absence of provisions for ceiling the impugned Act bestows undeserved benefit on the tenants at the cost of the landlords, without reference to the respective areas in their possession. The Amendment was enforced as also the impugned judgment was delivered before the deletion of Clause (f) of Article 19(1) from the Constitution and one of the grounds which has been successfully urged before the High Court is based on Article 19(1)(f). So far Article 31A of the Constitution is concerned, the case of the respondents which has found favour with the court below is that the provisions of the impugned Amendment Act cannot be held to be a step by way of agrarian reforms and, therefore, cannot have the protection of the Article. This is the main thrust of the argument of Mr. R.F. Nariman in this Court also. He has strenuously contended that for extending the protection of Article 31A(1)(a) to any particular law it is necessary that the law contains adequate measure against concentration of wealth in the hands of a few. It is claimed that fixation of ceiling is the heart and soul of agrarian reform without which it does not survive.
6. It has been observed in the impugned judgment that from the transcripts of newspapers produced by the writ petitioners and the statements alleged to have been made by the late Chief Minister that there were very few big land-holders in Goa, it can be assumed that the landlords in Goa are small holders of land. Certain statements made in the affidavit filed before the Court were also referred to in this connection. An attempt was made in this Court also to urge that there could not be many big landlords in Goa, and, therefore, their deprivation of the lands cannot be deemed to be a step towards fair distribution. It was contended that in many a case, a cultivating tenant in possession of lands under different landlords may be having far larger area of land than his landlords and there cannot be any justification in clothing such a tenant with title to the land at the cost of his comparatively poor landlords. The argument proceeded, that so far the holdings of the tenants are concerned, a necessity of placing ceiling on the holdings cannot be denied in view of the affidavit filed on behalf of the State stating that further legislation for that purpose was in contemplation. Mr. R.F. Nariman emphasized the fact that no such law has been brought in force till now. To the last part of the argument it was rightly pointed out by the learned Counsel for the appellants that since the Amendment Act was struck down by the Judicial Commissioner's Court as ultra vires, further amendment in the Act by way of introducing provisions for ceiling had to await this Court's judgment in the present civil appeals.
7. Before proceeding with the main argument of Mr. R.F. Nariman and the cases relied upon by him, it may be useful to briefly refer to the nature of the right of the landlords and the tenants under the Act before the insertion of Chapter IIA by the impugned Amendment Act. The rights of a tenant were heritable and Sections 8 and 9 prohibited the termination of his tenancy and his eviction except where the himself surrendered his right to the landlord or where the landlord established one of the grounds specified in this regard. By an Amendment in 1966, the tenant was given, by Section 13A, the first option to purchase the land in case the landlord proposed to sell it. By Chapter III the landlord was permitted to resume the land, subject to the ceiling of an area of 2 hectares in case of paddy land and 4 hectares in other lands, on the ground of bonafide requirement for personal cultivation; but this right was also dependant on the fulfillment of certain conditions. This Chapter was to come into force only on a notification for the purpose which was never issued. By the impugned Amendment Act this Chapter was omitted from the Act. In effect the right of resumption contemplated by the Act never vested in the landlords g before it disappeared from the statute book. It may be stated here that the 1964 Act is not under attack and the challenge is confined to its 5th Amendment whereby Chapter IIA has been included and Chapter III deleted.
8. The statement of objects and reasons was placed before us wherein it has been mentioned that there was a similar legislation in force in the neighbouring State of Maharashtra. The reference obviously is to the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956, mentioned in paragraph 2 above, introducing similar amendments in the Bombay Tenancy and Agricultural Lands Act, 1948. In
9. Article 31A(1)(a) declares that no law providing for "the acquisition by the State of any estate or of any rights therein or the extinction 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 Article 14 or Article 19. The 5th Amendment Act has received the assent of the President as required by the first proviso. The expression 'estate' is undisputedly applicable in the present case in view of the provisions of Clause (2) of the said Article. Although Article 31A(1)(a) does not by express language restrict its application to a particular nature of law, it is now well settled that the protection of the Article is limited to the laws which serve the purpose of agrarian reform, and Mr. R.F. Nariman is right in relying upon the observations at page 90 IF of the judgment in
In the case of Balmadies Plantations Ltd. and Anr. v. State of Tamil Nadu it was held while dealing with the provisions of Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act that the object and general scheme of the Act was to abolish intermediaries between the state and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the state. The Act, as such, in its broad outlines was held to be a measure of agrarian reform and protected by Article 31A.
At page 903H it was observed that in a sense agrarian reform is wider than land reform. At page 905 the conclusion was summarised under 8 heads, and Mr. R.F. Nariman strongly relied on the last proposition stating,
(8) A provision fixing ceiling area and providing for the disposal of surplus land in accordance with the rules is a measure of agrarian reform.
It cannot be denied that the appropriately enacted statutes having provisions for fixing ceiling of holdings do fall in the category of legislation for agrarian reform, but the proposition relied upon, does not say and cannot be interpreted as holding that it is such an essential feature of agrarian reform without which a law cannot be included in that category. The observations at page 902F in respect of the judgment in Balmadies Plantations case, quoted earlier rather negative such an assumption.
10. The case of Sri Ram Ram Narain Medhi (supra) has not only been distinguished in the impugned judgment but has been relied upon for supporting the writ petitioner's argument. Reliance has been placed on the observations at page 495 of the reported judgment to the effect that the object of the Maharashtra Act, which was under consideration in that case, was to bring about such distribution of the agricultural lands as best to subserve the common good and this object was sought to be achieved by fixing ceiling on areas of holdings. It, however, does not follow that fixing ceiling area of land which can be held by a person is a basic and essential requirement of land reform. Since the challenge against the Maharashtra Act was being directed to the provisions fixing ceiling it became necessary to consider and decide the effect of those provisions pointedly. But on a careful consideration p of the entire judgment, there does not remain any element of doubt that a proper statute even without including provisions regarding ceiling may be entitled to the protection of Article 31A provided it is otherwise a measure of agrarian reform. As mentioned earlier, the Court was deciding the question of constitutional validity of the 1956 Act which amended the Bombay Tenancy and Agricultural Lands Act enacted in 1948. The original 1948 Act did not contain the provisions of ceiling which were later introduced by the impugned amendment. If the stand of the respondents be assumed to be correct, the 1948 Act could not have been in absence of the provisions of ceiling, held to be a step in agrarian reform. But the Court at page 492 stated that:
The 1948 Act had been passed by the State Legislature as a measure of agrarian reform....
With respect to the 1956 Amendment Act, it was said at page 493 that,
With a view to achieve the objective of establishing a socialistic pattern of society in the State within the meaning of Articles 38 and 39 of the Constitution, a further measure of agrarian reform was enacted by the State Legislature, being the impugned Act, hereinbefore referred to, which was designed to bring about such distribution of the ownership and control of agricultural lands as best to subserve the common goods thus eliminating concentration of wealth and means of production to the common detriment.
(emphasis added)
The use of the expression "further measure' as mentioned above and the repetition of the said expression again at page 495 emphasise the fact that the original Act also was a measure of agrarian reform. Thus the decision, instead of helping the respondents lends support to the appellants' argument.
11. Mr. R.F. Nariman cited a number of other decisions dealing with the validity of provisions fixing ceiling and the Court upheld those provisions on the ground that they were measures of agrarian reform, but they do not support the reverse proposition as put forward on behalf of the respondents. All these decisions are, therefore, clearly distinguishable and we will mention briefly some of them which were heavily relied on by Mr. Nariman.
12. In the case of
This Article has been construed by this Court on several occasions in dealing with legislative measures of agrarian reforms. The object of such reforms generally is to abolish the intermediaries between the State and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the State.
The 5th Amendment Act impugned in the cases before us satisfies this test. Similar was the position in
The golden web, throughout the warp and woof of the Act, is the feature of personal cultivation of the land. The expression 'personal cultivation' which runs through Sections 3, 4, 5, 7 and 8 is defined with care u/s 2(7) in a detailed manner with a proviso and six explanations.
From a review of the foregoing provisions it is obvious that the Act contains a clear programme of agrarian reforms in taking stock of the land in the State which is not in personal cultivation (Section 3) and which though in personal cultivation is in excess of the ceiling area (Section 4)
In the ultimate paragraph of the judgment it was pointed that for framing a scheme for agrarian reforms it is not necessary or feasible to follow a set pattern in different parts of the country. It was observed,
On the other hand, the predominant object underlying the provisions of the Act is agrarian reforms. Agrarian reforms naturally cannot take the same pattern throughout the country. Besides the availability of land for the purpose, limited in scope in the nature of things, the scheme has to fit in with the local conditions, variability of climate, rainfall, peculiarity of terrain, suitability and profitability of multiple crop patterns, vulnerability of floods and so many other factors in formulating a scheme of agrarian reforms suitable to a particular State.
The decision, therefore, indicates that a flexible approach has to be adopted in deciding as to the nature of agrarian reform to be taken, rather than laying down a strait jacket rule for universal application. The observations in
13. The learned Counsel for the respondents also placed two cases wherein Article 31A was held to be inapplicable. In
The definition of "estate" refers to an existing law relating to land tenures in a particular area indicating thereby that the Article is concerned only with the land tenure described as an "estate". The inclusive definition of the rights of such an estate also enumerates the rights vested in the proprietor and his subordinate tenure-holders. The last clause in that definition, viz., that those rights also include the rights or privileges in respect of land revenue, emphasizes the fact that the Article is concerned with land tenure. It is, therefore, manifest that the said Article deals with a tenure called "estate" and provides for its acquisition or the extinguishment or modification of the rights of the land-holders or the various subordinate tenure-holders in respect of their rights in relation to the estate. The contrary view would enable the State to divest a proprietor of his estate and vest it in another without reference to any agrarian reform. It would also enable the State to compel a proprietor to divide his properties, though self-acquired, between himself and other members of his family or create interest therein in favour of persons other than tenants who had none before.
The Court, thus held that Article 31A(1)(a) will not apply to an Act which does not contemplate or see to regulate the rights inter se between the landlords and tenants leaving all their characteristics intact. The Court further considered the judgment in Sri Ram Ram Narain's case (supra) and distinguished it on the ground that under the Bombay Act certain rights were conferred on the tenants in respect of their tenements which they did not have before. The other case of
14. As has been discussed above, the title to the land shall vest in the tiller and the landlord shall get the compensation. Earlier also his right to resume the land for personal cultivation was considerably restricted by the provisions of the 1964 Act. As a result of the impugned Amendment Act he has been divested of this limited right for a price, and the tiller shall no more be under a threat of dispossession. The impugned provisions must therefore be accepted as a measure of land reform. We reject the argument of the respondents that in absence of provisions fixing ceiling on the area of land which can be held by a person a statute cannot be accepted as a measure of land reform. The 5th Amendment Act is, therefore, entitled to the protection of Article 31A and it cannot be struck down on the ground of violation of Articles 14 and 19 of the Constitution. The judgment of the Judicial Commissioner declaring the Act as ultra vires is accordingly set aside and the writ petitions filed by the respondents are dismissed. Consequently it is not necessary to deal with the writ petition (W.P. No. 864 of 1988) filed in this Court under Article 32 challenging the inclusion of the impugned Act in the 9th Schedule of the Constitution and the same is rejected.
15. In the result, Civil Appeals No. 1314-1318 of 1979 are allowed, but, in the circumstances, the parties are directed to bear their own costs throughout.
