Bombay High Court
Janardhan Walu Gadekar vs Assistant Collector And Competent ... on 8 June, 1988
Equivalent citations: 1988(3)BOMCR74
JUDGMENT C.S. Dharmadhkari, J.
1. As all these writ petitions involve common questions of law and fact, they were heard together and are being disposed of by this common judgment.
2. It is the case of the petitioner Janardhan Walu Gadekar in Writ petition No. 887 of 1984 that he is an agriculturist residing in a farmhouse with the members of his family in an agricultural land bearing S. No. 37/1 admeasuring 90 Ars situate at Deolali in District Nashik. The said land is situated within the Municipal limits of erstwhile Nashik Road-Deolali Municipal Council, constituted under the Maharashtra Municipalities Act and now merged in the Nashik Municipal Corporation constituted under the Bombay Provincial Corporation Act, 1949. According to the petitioners along with the members of his family he is cultivating the said land and growing therein crops like sugarcane, grapes, wheat, Bajri and other bagayat and bhusar crops. There is a well situated in the said land which is utilised for growing bagayat crops. He also owns cattle, including bullocks and cows that are tethered in the in the farmhouse and are used for the purpose of cultivation. Thus it is his case that the said land is in his personal cultivation. This personal cultivation is reflected in the revenue records. It is also his case that his total holding of agricultural land does not exceed the limits of ceiling as prescribed by the Maharashtra Agricultural Lands (Ceiling on holdings) Act, 1961.
3. He then contended that the Maharashtra Regional Town Planning Act, 1966 is applicable to the area in question including Nashik Agglomeration and the lands within the limits of the erstwhile Nashik Road Deolali Municipal Council. The Nashik Road Deolali Municipal Council acting as a planning Authority under the MRTP Act, published a draft development plan for the municipal area on or about 18th July, 1968 earmarking the petitioner's said land as in area for residential purpose. The said draft development plan came to be sanctioned by the Government on or about 18th August, 1972 and is brought into force from 2nd December, 1972. It is also his case that neither the Municipal Council nor the Town Planning Authorities have taken any steps to develop the area comprised in the development plan, except earmarking the same for different purposes in the draft development plan. Therefore inspite of the fact that the land is reserved for residential purpose, the same is still under his personal cultivation. On the basis of these facts, it is contended by the petitioner that though in view of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 and particularly section 2(o) which defined 'urban land' and explanation to the said section, the said land shall not deemed to be mainly used for the purpose of agriculture as it has been specified in the master plan for a purpose other than agriculture, in view of the provisions of Article 31-A, second proviso, provisions of the Urban Ceiling Act will not apply to these lands and hence will have to be excluded while determining the ceiling area under the said Act.
4. Shri Rane, learned Counsel appearing for the petitioner in Writ Petition No. 887 of 1984, contended before us that the second proviso to Article 31-A(1) is party of basic feature of the Constitution, inasmuch as it constitutes limits on the legislative powers of the State and confers a corresponding fundamental right. The second proviso to Article 31-A introduced by the 17th Amendment Act, 1964, is a fundamental right as held in Dattatraya's case, . The Supreme Court has so far not held that the said fundamental right is a right to property or a mere right to receive compensation for acquisition of property or that it is not a basic feature of the Constitution. The decision of the Supreme Court in Keshavanand Bharati's case and the observations of Justice Krishna Iyer in Bhim Singhji's case to the effect that 'the right to property is not a part is not a part of the basic structure of the Constitution, even as a right to poverty is not a basic structure of the Constitution of India for ever', is in the context of Articles 31 and 19(1)(f) as they existed in the Constitution before they were deleted by the 44th Amendment. It is clear that the challenge to the Urban Land Ceiling Act in Bhim Singhji's case was under Articles 14, 19 and 31 only and not on the ground of infringement of the fundamental rights guaranteed under the second proviso to Article 31-A of the Constitution. Therefore, the said decision must be held as being restricted to Article 31 and 19(1)(f) of the Constitution. There is a substantial difference between Articles 31 and 19(1)(f) of the Constitution on the one hand and the second proviso to Article 31-A, both historically and conceptually. Articles 31 and 19(1)(f) guaranteed right to hold and own property to an unlimited extent and the said right could not be taken away by law except by conforming to the provisions of Article 19(1)(f) and 31 . The fundamental right guaranteed under the second proviso is not an unrestricted right to hold property to any extent. In order to protect the small farmers, personally cultivating their lands within the ceiling limits fixed by the State Acts laying down ceiling limits fixed by the State Acts laying down ceiling for agricultural holdings, who formed vast majority in the country, the second proviso to Article 31-A(1) was introduced by the 17th Amendment Act, 1964. It was a solemn assurance to the small holders of land personally cultivating their lands within the ceiling limits as the source of their livelihood. If their lands were required to be acquired for any public purpose or otherwise, they would not be acquired except on payment of the full market value of the said lands within the ceiling limits along with the building or structures standing thereon. In such circumstances the small holders of lands personally cultivating the same would receive monies equivalent, for the purpose of carrying on their livelihood which they would lose if their land was acquired by the State.
5. Shri Rane also contended that the conditions and scope of Articles 31 and 19(1)(f) on the one hand and of the second proviso to Article 31-A(1) on the other are substantially different. Article 19(1)(f) and 31 as they existed prior to the 44th Amendment were obviously rights to property including the right to hold property to an unlimited extent and the said right could not be abridged without confirming to the fundamental rights under Articles 19(1)(f) and 31 of the Constitution. The right conferred by the second proviso to Article 31-A(1) is not only a right to limited property but a right to livelihood. The right recognised is of vast majority of farmers who are only cultivators of land, to continue to hold the lands as their means of livelihood within the ceiling limits prescribed by the State enactments on agricultural holdings and in case they were required to be acquired by the State, the same shall not be acquired except on payment of the market value of the self cultivated agricultural lands and the structures standing thereon. This fundamental right guaranteed under second proviso to Article 31-A is linked with Article 21 which guarantees life and liberty. In the light of broad interpretation given by the Supreme Court that the said right of life is not of just existence but one with dignity as human beings. Vast majority of Indian Peasants who earn their livelihood by cultivating the lands within the ceiling limits cannot live with dignity unless they are assured that they can continue to hold the said lands and in case they are required to be acquired they shall not be acquired except on payment of their full market value on the date of acquisition as money's value for the land acquired. Therefore, such a right as guaranteed under the 2nd proviso to Article 31-A(1) cannot be construed as a right to property as contemplated by the Supreme Court in Keshavand Bharati's case or in Bhim Singhji's case. The wording for compensation embodied in the 2nd proviso is substantially different from the wording that obtaining in Article 31-A(2) which provided for payment of an 'amount' that may be fixed by law provided for compulsory acquisition or requisition of property.
6. It is also contended by Shri Rane that since the said right is a fundamental right, even otherwise it is essential and basic feature of the Constitution and, therefore, the relevant provisions of the Urban Land Ceiling Act will have to be read down to mean that the provisions of the Urban Lands Celling Act will not apply to the lands which are under personal cultivation, in view of the said proviso to Article 31-A(1) of the Constitution. It is also contended by him that even though the Urban Land Ceiling Act is inserted in the 9th Schedule, that will not make any difference, since the right conferred by the 2nd proviso to Article 31-A(1) of the Constitution, constitutes essential and basic feature of the Constitution. In support of these contentions Shri Rane has placed reliance upon the decisions of the Supreme Court in Dattatraya Govind Mahajan and others v. The State of Maharashtra and Anr. Minerva Mills Ltd. and others v. Union of India, . Waman Rao & others v. Union of India and others , State of U.P. & others v. L.J. Johnson and another, Khajamian Wakf Estates etc. v. The State of Madras, The State of Karnataka and another v. Ranganatha Reddy and another, and The All Saints High School etc. v. The Government of Andhra Pradesh and others etc..
7. It is then contended by Shri Rane that though in Bhim Singhji's case i.e. and , the entire Urban Land (Ceiling and Regulation) Act is held valid save and except section 27(1) in so far as it imposes a restricting on transfer of any urban or urbanisable land with a building or of a portion of such building, which is within the ceiling area, this aspect of the matter was neither placed nor considered by the Supreme Court. According to him without declaring any provisions of the Act as ultra vires, in view of the second proviso to Article 31-A(a)(a) of the Constitution, the Act will have to be so read so as to execute the lands which are under personal cultivation of a owner from the operation of the Urban Lands Ceiling Act and if so read the provisions of the Act will not apply to the lands which are under personal cultivation of the petitioner.
8. The arguments advanced by Shri Rane are adopted by Shri Mhamane and Shri Ingale, learned Counsel appearing for the petitioners in other matters. It was further contended by them that in their cases the owners of land have filed applications under section 20 of the Act for exemption. The said applications came to be rejected mechanically without a speaking order or without giving any opportunity of being heard to the applicants. Therefore, said orders of rejection are in breach of principles of natural justice. In support of this contention the learned Counsel have placed strong reliance upon the decision of Madhya Pradesh High Court, in Nandkishore v. State of M.P., Gujarat High Court, in Manilal Hiralal Doshi (by Lrs.) and others v. State of Gujarat, and Karnataka High Court in A.I.R. 1985 Karnataka, D. Ananthakrishna Bhat v. Special Deputy Commr. & Competent Authority, Mangalore and others. Shri Mahamane has also placed reliance upon the circular dated 12th February, 1982 issued by the General Administrative Department, Government of Maharashtra under section 20 of the Act as well as the Bill No. 64 of 1981 which sought to amend the Urban Land (Ceiling and Regulation ) Act, 1976.
9. On the other hand it is contended by Shri R.V. Desai and Shri R.D. Rane, A.G.P. , learned Counsel appearing for the respondents, that in view of the decision of the Supreme Court in Bhim Singhji's case i.e. and , it is not open to the petitioners or to this Court to hold that any of the provisions of the Ceiling Act are invalid. In Bhim Singhji's case it is held that the entire Act is valid save and except section 27(1) in so far as it imposes a restriction on transfer of any urban or urbanisable land with a building or of a portion of such building, which is within the ceiling area. Since the Supreme Court has held that the entire Act is valid now by an oblique method it cannot be held that though the entire Act is valid it is invalid so far as it infringes the fundamental rights guaranteed by second proviso to Article 31-A(1) of the Constitution of India nor the same result could be achieved by reading down the provisions. In support of this contention the learned Counsel have placed reliance upon the decision of the Supreme Court in Ballabhadas Mathuradas Lakhani and others v. Municipal Committee, Malkapur, T. Govindraja Mudaliar etc. v. State of Tamil Nadu and others and a decision of this Court in 1980 Mh.L.J. 287, Isak Chanda Palkar v. Nyamatbi w/o Isak Palkar and others. It is also contended by the learned Counsel that in Bhim Singhji's case it is held by the Supreme Court that the Act protected by the protective umbrella of Article 31-B and 31-C of the Constitution. The contention now raised by the petitioners that the fundamental right guaranteed by the second proviso to Article 31-A(1) of the Constitution is a part of basic structure of the Constitution, is also repelled by the Supreme Court in Bhim Singhji's case and therefore the petitioner is not entitled to argue that by reading down the provision, it should be held that it constitutes basic structure of the Constitution.
10. For properly appreciating the controversy raised before us it will be worthwhile if a reference is made to the decision of the Supreme Court in Bhim Singhji's case. In Bhim Singhji's cases Supreme Court held that the entire Urban Land (Ceiling and Regulation) Act, 1976 is valid save and except section 27(1) in so far as it imposes restriction on transfer of any urban or urbanisable and with a building or of a portion of such building, which is within the ceiling area. In a further order in the same case i.e. while giving reasons, Chandrachud, C.J., and Bhagwati, J., fully agreed with the reasoning given by Krishna Iyer, J., in his judgment . It was also held that the impugned Act was intended to act and did in fact enacted to implement or achieve the purpose of Clauses (b) and (c) of Article 39 of the Constitution and that the vice from which a few provisions of the Act could be shown to suffer, would not justify a contrary conclusion. However, it is contended by Shri Rane that the provisions of Article 31-A(1) and particularly second proviso thereof, were not considered by the Supreme Court in the said decisions. As has been held by the Supreme Court the said proviso is a part of the fundamental right and, therefore, is an essential and basic feature of the Constitution and by mere inclusion in the Act in 9th Schedule, it cannot get the immunity form the said challenge. In substance the controversy raised before us is limited to find out as to whether this challenge is open inspite of the Supreme Court in Bhim Singhji's case and as to whether it could be said that the right conferred by the second proviso to Article 31-A(1) of the Constitution, constitutes an essential and basic feature of the Constitution. In this context the observations of Krishna Iyer, J., in Bhim Singhji's case are pertinent, which read as follows:
"We need not go into the details except to state that even Gandhiji took the view that anything like compensation could possibly not be given when property was taken from the property owners by the State for community benefit. I mention this only to drive home the point that right to property is not part of the basic structure of the Constitution even as right to poverty is not the basic structure of India for ever. The whole adventure of the Constitution is to remove poverty and in that process remove concentration of property, not for a return, but for almost free, if the justice of the situation commended itself to the legislation to take it that away. See Granville Austin. The Indian Constitution : Cornerstone of a Nation, p. 89. Of course, it may be a deception to say that an `amount' is paid if nothing is paid except a title. So, what we have to consider is whether the amount of Rs. 2 lakhs is so utterly deceptive and totally nominal as to be discarded as a farthing with contempt. Having regard to the human condition of a large percentage of pavement dwellers and slum dwellers in our urban areas and proletarian miserables in our rural vastnesses, any one who gets Rs. 2 lakhs can well be regarded as having got something substantial to go by. In a society where half of humanity lives below the breadline, to regard Rs. 2 lakhs as a farthing is fare well to poignant facts and difficult to accept. In my view, with the greatest respect for my learned brother, I am unable to assent to the view that section 11(6) contravenes Article 31(2) because the payment stipulated is a mere mockery.
14. To put a ceiling on the maximum amount payable when property is taken is reasonable and does not spell discrimination unless the maximum itself is a hoax, being trivial. In a Constitution which creates a Socialist Republic legality is the rule of life and when gross in equalities mar the economic order, a measure of equalisation is but one strategy of promoting equality and has to be viewed as part of the dynamics of social justice. Indeed, even in the Income Tax Act, at a certain stage, almost all the income is taken away by a steep rate of tax leaving next to nothing to the income earner. We have to be pragmatic and show empathy with the values of the Constitution. Chief Justice Earl Warrant's statement is apposite as a reminder to our judicial conscience: Fortune, November 1955.
Our Judges are not monks or scientists, but participants in the living stream of our national life, stearing the law between the dangers of rigidity on the one hand and of formlessness on the other. Our system faces no theoretical dilemma but a single continuous problem; how to apply to ever changing conditions the never changing principles of freedom. I have no hesitation in holding section 11(6) as invulnerable".
In our view these observations will aptly apply to the controversy raised before us also. Once it is held that the right to property is not part of basic structure of the Constitution, then obviously the right to get compensation at the rate which shall not be less than the market value of the property in case of its acquisition cannot be treated as part of essential or basic feature or structure of the Constitution. Ultimately the compensation is paid for the acquisition of the property.
11. While coming to the conclusion that right to property is not part of the basic structure of the Constitution, Krishna Iyer J., relied upon the view expressed by the Father of Nation that anything like compensation could possibly not be given when property was taken from property owners by the State for community benefit. It was also observed that whole adventure of the Constitution is to remove property and in that process remove concentration of the property, not for a return but for almost free, if the justice of the situation commended itself, to the legislation to take it that way. This is the reason why section 11(6) was held as invulnerable. The reasoning given by the Supreme Court clearly indicates that property or compensation for its acquisition are two sides of the same coin. Conflict between propertied and non-propertied class can be reduced if the rich will give up voracious quest for profit and compensation. It cannot be forgotten that all these years the rich have selfishly enjoyed the property, unjustly, depriving others, and society of the fruits of its labour. Therefore, some thinkers feel that this unjust enjoyment of the property was in itself enough compensation. If economic justice is to be assured to the common man then we cannot guarantee an unrestricted right to property or compensation. As a matter of fact an instinct to accumulate property is not fundamental in human nature. It is an acquired instinct because of uncertainties and insecurity. That right can be treated as fundamental or basic feature, which is consistent with human nature and can be enjoyed at all times and by all, whether rich or poor. It as observed in Bhim Singhji's case the whole adventure of the Constitution is to remove poverty and in that process remove concentration of property, not for return, but almost free, if the justice of the situation so commended and the right to property is not part of basic structure of Constitution, then the right to claim compensation at a rate which shall not be less than the market value of property, and that too for a land which is in excess of urban ceiling limit, cannot be treated as part of basic structure of Constitution. In view of this it is not necessary to consider other contentions raised by Shri Desai namely that it not now open to the petitioners to challenge any of the provisions of the Act on the ground that the said provisions are violative of second provisions to Article 31-A(1) of the Constitution, since the entire Act has been held valid by the Supreme Court.
12. It is also not necessary to consider another contention-raised by Shri Desai i.e. that the land in question is not covered by the second proviso to Article 31-A(a) of the Constitution. Relying upon the decision of this Court in Shri Savalram v. State, 1982 Mh.L.J. 299 and Clause (c) to explanation to section 2(o) of the Act, it is contended by Shri Desai that since the lands in dispute are specified in the master plan for a purpose other than agricultural, they cease to be agricultural land. For application of the second proviso to Article 31-A(1), the land should be an agricultural land. If the land itself is not agricultural land, then this proviso will not apply. It is also contended by him again on relying upon certain observations of this Court in 1979 Mh.L.J. 786, Ganesh Raghunath Deshpande v. Special Land Acquisition Officer, Pune, wherein it is observed, that acquisition is not the aim of the Urban Lands Ceiling Act but is a consequence of its holder having land in excess of the ceiling limit. According to Shri Desai therefore, this is not as enactment for acquisition of the land and hence second proviso to Article 31-A(1) of the Constitution is not applicable to the Act. Though we find some substance in these contentions, in the view which we have taken it is also necessary to consider the said contentions in further details. It is not disputed that once it is held that the right to compensation at the market value as guaranteed by the second proviso to Article 31-A(1), is not an essential and basic feature or structure of the Constitution, then in view of the decision of the Supreme Court in Bhim Singhji's case, petitioner will not entitled to any relief in these petitions. Hence Rule in Writ Petition No. 887 of 1984 stands discharged with no orders as to costs. However, it is made clear that the petitioner will be at liberty to file an application for exemption under section 20 of the Act, as and when occasion arises.
13. For these very reasons, the main challenge in other writ petitions also stands negatived. However, so far as the challenge to the orders passed under section 20 of the Act is concerned, there is much substance in the said challenge. It is not disputed that the applications filed by the petitioners are rejected mechanically without passing any speaking order or without giving any opportunity of being heard to the petitioners. From the bare reading of section 20 it is quite clear that it is implicit in the said provisions that the applications filed for exemption will be disposed of after giving an opportunity of being heard to the petitioners and that too by a speaking order, to indicate that the authority concerned has applied its mind to the contentions raised in the applications. It is not necessary to deal with this aspect of the matter any further since we agree with the view taken by the Madhya Pradesh, Gujarat and Karnataka High courts in and in that behalf. Therefore, in these writ petitions rule is made partly absolute. The orders passed by the authorities concerned on applications filed by the petitioners under section 20 of the Act, are set aside and the authorities are directed to decide the said applications afresh in accordance with law after giving a reasonable opportunity of being heard to the petitioners. However, in the circumstances of the cases there will be no order as to costs.
14. At this stage Shri Rane learned Counsel appearing for the petitioners prays for leave to appeal to Supreme Court. Since we have decided the controversy raised before us on the basis of the decisions of the Supreme Court, in Bhim Singhji's case we do not feel that this is a fit case for grant of such leave. Hence leave refused. Interim relief to continue for a period of two months.