Andhra HC (Pre-Telangana)
Maddukuri Venkatarao And Ors. vs The State Of Andhra Pradesh And Anr. on 11 April, 1975
Equivalent citations: AIR1975AP315, AIR 1975 ANDHRA PRADESH 315, ILR (1975) ANDH PRA 310
JUDGMENT Ramachandra Rao, J.
1. In this batch of Writ Petitions filed under Article 226 of the Constitution of India, common questions as to the constitutional validity of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1972 (hereinafter referred to as the Act) are raised.
2. The Act was passed on 31-7-1972 and received the assent of the President of India on 1-1-1973 and came into force from 1-1-1975 according to the notification issued by the Government of Andhra Pradesh in the Andhra Pradesh Extraordinary Gazette dated 18-12-1974. The Act was included in the Ninth Schedule of the Constitution of India by the Thirty Fourth Constitution Amendment Act, 1974. Earlier, with a view to prevent alienations of agricultural lands in anticipation of the ceiling law, the Andhra Pradesh Agricultural Lands (Prohibition of Alienationl Ordinance, was promulgated on 2-5-1972, in and by which all alienations made from that date, have been declared null and void. The Ordinance was subsequently replaced by the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act. 1972. The said Act has however been repealed by the present Act.
3. The constitutionality of the Act and its provisions is challenged on the grounds that they are beyond the legislative competence of the State legislature and that they violate the provisions of Articles 14, 19, 31 (2) the second proviso to Article 31-A of the Constitution, and they are not saved by the provisions of Articles 31-A, 31-B and 31-C of the Constitution.
4. Before we consider the main attack on the constitutionality of the Act, it is necessary to briefly outline the scheme of the Act. The Act fixes a ceiling on agricultural land holdings and provides for acquisition of land which is in excess of the ceiling limit and for distribution of the lands acquired, to the landless and poor agriculturists. The Act contains thirty sections and two schedules. Section 2 declares that the Act is for giving effect to the policy of the State towards securing the principles specified in Clauses (b) and (c) of Article 39 of the Constitution. The expressions 'family Unit', 'holding', 'owner', 'person', are denned in Section 3 Clauses (f). (i), (n) and (o) which are as follows;--
"3 (i). 'Family unit' means:--
(i) in the case of an individual who has a spouse or spouses, such individual the spouse or spouses and their minor sons and their unmarried minor daughters, if any;
(ii) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried minor daughters;
(iii) In the case of an individual who is a divorced husband and who has not remarried, such individual and his minor sons and unmarried minor daughters, whether in his custody or not;
(iv) where an individual and his or her spouse are both dead, their minor sons and unmarried minor daughters.
Explanation: Where a minor son is married, his wife and their offspring, if any; shall also be deemed to be members of the family unit of which the minor son is a member;
3 (i) 'Holding' means the entire land held by a person:
"(i) as an owner;
(ii) as a limited owner:
(iii) as an usufructuary mortgagee;
(iv) as a tenant;
(v) who is in possession by virtue of a mortgage by conditional sale or through part performance of a contract for the sale of land or otherwise; or in one or more of such capacities; and the expression 'to hold land' shall be construed accordingly:
Explanation: Where the same land is held by one person in one capacity and by another person in another capacity, such land shall be included in the holding of both such persons.
3 (n). 'Owner' includes a person by whom or in whose favour a trust is created end a person entitled to a vested remainder; but does not include a limited owner; and In the case of any land not held under ryotwari settlement, a person who is or would be entitled to the grant of a ryotwari patta or to the registration as an occupant in respect of such land under any law for the time being in force providing for the conversion of such land into ryotwari tenure and where there is no such law, any person holding such land immediately before the specified date otherwise than in any one of the capacities specified in items (ii) to (v) of Clause (i);
3 (o). 'Person' includes an individual a family unit, a trustee, a company, a firm, a society or an association of individuals, whether incorporated or not."
5. 'Ceiling Area' specified in Section 4 is as follows:
4. Ceiling Area:
"(1) The Ceiling area in the case of a family unit consisting of not more than five members shall be an extent of land equal to one standard holding.
(2) The ceiling area in the case of a family unit consisting of more than five members shall be an extent of land equal to one standard holding plus an additional extent of one-fifth of one standard holding for every such member in excess of five, so however that the ceiling area shall not "exceed two standard holdings".
(3) The ceiling area in the case of every individual who is not a member of a family unit, and in the case of any other person shall be an extent of land equal to one standard holding.
Explanation: In the case of a family unit, the ceiling area shall be applied to the aggregate of the lands held by all the members of the family unit."
6. The standard holding for different classes of lands and the computations of the holdings are mentioned in Section 5 and the First Schedule.
7. Section 6 refers to the Constitution of Tribunals for the purpose of the Act.
8. Section 7 contains a special provision in respect of certain transfers by way of sale, gift, usufructuary mortgage etc., made prior to the Act and it reads as follows:
"7. Special provision in respect of certain transfers etc., already made :
(1) Where on or after the 24th January, 1971, but before the notified date, any person has transferred whether by way of sale, gift, usufructuary mortgage, exchange, settlement, surrender or in any other manner whatsoever, any land held by him or created a trust of any land held by him, then the burden of proving that such transfer or creation of trust has not been effected in anticipation of, and with a view to avoiding or defeating the objects of any law relating to a reduction in the ceiling on agricultural holding shall be on such person, and where he has not so proved, such transfer or creation of trust, shall be disregarded for the purpose of the computation of the ceiling area of such person.
(2) Notwithstanding anything in Sub-section (1), any alienation made by way of sale, lease for a period exceeding six years, gift, exchange, usufructuary mortgage or otherwise, any partition effected or trust created of a holding or any part thereof, or any such transaction effected in execution of a decree or order of a Civil Court or any award or order of any other authority, on or after the 2nd May, 1972 and before the notified date, in contravention of the provisions of the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act, 1972 shall be null and void.
(3) Where at any time within a period of five years before the notified date, any person has converted any agricultural land held by him into a non-agricultural land, then the land so converted shall be deemed to be agricultural land on the notified date for the purpose of this Act.
(4) Where on or after the 24th January, 1971, but before the notified date:
(a) any declaration of dissolution of marriage has been made by a court on an application made on or after the 24th January, 1971; or
(b) any other dissolution of marriage in accordance with any law or custom has taken place, then the land held by each spouse immediately before the date of such dissolution shall, for the purposes of this Act, be deemed to be the land held on the notified date by the family unit of which they were members immediately before such dissolution.
(5) Where on or after the 24th January, 1971, but before the notified date, any person has been given in adoption, then the land held by such person immediately before the date of such adoption shall, for the purposes of this Act, be deemed to be held on the notified date by the family unit of which he was a member immediately before such adoption.
(6) In every case referred to in Sub-section (4) or Sub-section (5), the computation of the ceiling area shall first be made in respect of the family unit referred to in the said sub-section, and after the surrender of the land held in excess of the ceiling area by such family unit, the remaining land held by such divorced spouse or adopted person, as the case may be, shall be included in the holding of such divorced spouse or adopted person, whether as an individual or as a member of a family unit of which such spouse or person has become a member.
(7) If any question arises,--
(a) whether any transfer or creation of a trust effected on or after the 24th January. 1971, had been effected in anticipation of. and with a view to avoiding or defeating the objects of anv law relating to a reduction in the ceiling on agricultural holdings;
(b) Whether any alienation made, partition effected or trust created on or after the 2nd May. 1972, is null and void;
(c) Whether any conversion of agricultural land into non-agricultural land had taken place within a period of five years before the notified date;
(d) Whether any dissolution of a marriage had taken place on or after the said date, or in accordance with any law or custom :
(e) Whether any person had been given in adoption on or after the 24th January, 1971, such question shall be determined by the Tribunal, after giving an opportunity of being heard to the affected parties, and its decision thereon shall, subject to an appeal and a revision under this Act, be final.
(8) If the Tribunal decides that any transfer, or creation of trust had been effected in anticipation of, and with a view to avoiding or defeating the objects of, any law relating to a reduction in the ceiling on agricultural holding or that any alienation made or partition effected or trust created is null and void and if as a result of such transfer, alienation or creation of trust, the holding of the person or the family unit, that remains on the notified date, does not exceed the extent of land that he or the family unit is liable to surrender, then, the Tribunal shall treat the entire holding thus left over as the extent of land to be surrendered under the provisions of this act by the person or the family unit, as the case may be ;
Provided that the balance of extent of land that remains liable to be surrendered by the person or family unit shall, subject to such rules as may be prescribed, be surrendered by the alienee who is in possession of such holding by virtue of any transaction effected in contravention of the provisions of the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act, 1972.
9. Section 8 requires the filing of declarations of the holdings in the forms prescribed and is as follows:--
8. Declaration of holding: (1) Every person, whose holding on the notified date together with any land transferred by him on or after the 24th January, 1971, whether by way of sale, gift, usufructuary mortgage, exchange, settlement, surrender or in any other manner whatsoever, and any land in respect of which a trust has been created by him on or atter the 24th January, 1971, exceeds the specified limit, shall, within thirty days from the notified date or within such extended period as the Government may notify in this behalf, furnish declaration in respect of his holding together with such land, to the Tribunal within whose jurisdiction the whole or a major part of his holding is situate containing such particulars including those relating to lands held by him in any part of India outside the State, and in such form as may be prescribed.
Explanation I: Where the land is held by a minor, lunatic, an idiot or other person subject to like disability, not being a member of the family unit, the declaration shall be furnished by the guardian, manager or other person in charge of the property of such person; and where the land is held or is deemed to he held by a company, firm, association or other corporate body, the declaration shall be furnished by any person competent to act for such company, firm, association or corporate body in this behalf.
Explanation II:-- Where the land is held or is deemed to be held by a family unit, the declaration shall be furnished by a person in management of the property of such family unit and the declaration so furnished shall be binding on all the members of the family unit:
Provided that the Tribunal shall in the event of a dispute as to the declaration furnished by the person in management, give to the other members of the family unit an opportunity of making their representation or of adducing evidence, if any, in respect of such declaration and shall consider such representations and evidence before determining the ceiling area under this Act.
Explanation III: In this sub-section specified limit means,
(a) In the case of wet land -- 4.05 hectares (10 acres);
(b) in the case of dry land -- 10.12 hectares (25 acres), and for the purpose of computing the specified limit in a case where the holding of any person includes both wet land and dry land, one hectare of wet land shall be deemed to be equal to two and half hectares of dry land.
(2) Without prejudice to the provisions of Sub-section (1), the Tribunal shall have power to issue notice requiring any person holding land or residing within its jurisdiction who it has reason to believe, holds or is deemed to hold land in excess pf the ceiling area, to furnish a declaration of his holding, or that of his family unit under Sub-section (1) within such period as may be specified in the notice, not being less than fifteen days from the date of its communication, and such person shall furnish the declaration accordingly.
(3) If any person who is liable to furnish a declaration under Sub-section (1) or Sub-section (2) fails to furnish the declaration within the specified time, the Tribunal may obtain the necessary information in such manner as may be prescribed.
10. Under Section 9, the Tribunal has to hold an enquiry and pass orders determining the ceilinfi area in respect of a person, and the extent of land in excess of the ceiling area.
11. Section 10 provides for the surrender of the land in excess of the ceiling area.
12. Under Section 11, the lands surrendered are to vest in the Government and any claim or liability enforceable against the lands surrendered immediately before the date of vesting in the Government may be enforced only against the amount payable under the Act in respect of such land or against any other property of the owner.
13. Section 12 provides for reversion of the lands surrendered by a tenant or an usufructuary mortgagee to the owner and for payment of the mortgage money by the owner and proportionate rent by the tenant.
14. Section 13 excludes the lands held by a protected tenant from the holding of the owner. Under Section 14, the lands vested in the Government shall be disposed of by the Government by allotment for use as house-sites for agricultural labourers, village artisans or other poor persons owning no houses or house-sites or for transfer to the weaker sections of the people dependent on agriculture for purposes of agriculture or for purposes ancillary thereto. Proviso to Section 14 (1) requires that as far as may be practicable, not less than one half of the total extent of land so allotted or transferred shall be allotted or transferred to the members if the Scheduled Castes and the Scheduled Tribes and out of the balance, not less than two thirds shall be allotted to members of the backward classes of citizens notified under Article 15 (4) of the Constitution.
15. Section 15 specifies the amount payable for the lands vested in the Government and it reads as follows:--
"The amount payable for any land vested in the Government under this Act, shall be a sum calculated at the rates specified in the second Schedule and it shall be paid at the option of the Government, either in cash or in bonds or partly in cash and partly in bonds. The bonds shall be issued on such terms and carry such rate of interest as may be prescribed."
16. Claims for the aforesaid amounts will be determined by the Tribunal under Section 16 in accordance with the rules prescribed.
17. Section 17, prohibits alienation of holdings by any person or a member of a family unit after the notified date until he has furnished a declaration under Section 8, and the extent of the land if any to be surrendered, has been determined by the Tribunal and an order has been passed by the Revenue Divisional Officer taking possession of the land in excess of the ceiling area, and a notification published under Section 16 and alienations made in contravention of this Section are declared to be null and void.
18. Section 18 refers to filing of declarations in respect of future acquisitions and Section 19 provides for declarations to be furnished before the registering officer to the effect that the holding of the transferor does not exceed the ceiling area.
19. An appeal is provided against an order of the Tribunal under Section 20 and a further revision to the High Court under Section 21.
20. Section 23 exempts certain categories of lands from the operation of the Act.
21. Section 24 provides for imposition of penalties for contravention of the provisions of the Act.
22. Section 30 repeals the Andhra Pradesh Ceilings on Agricultural Holdings) Act. 1961 (Act X of 1961) and the Andhra Pradesh Agricultural Lands (Prohibition of Alienation) Act, 1972.
23. First Schedule to the Act relates to the classification of lands according to terms or Bhagannas; and second schedule leys down the manner in which the amount payable for the lands vested in the Government, has to be calculated.
24. The Act has been included in the Ninth Schedule by the Thirty Fourth Amendment Act and is protected by Article 31-B which gives protection to the Act from attack on the ground of violation of any of the rights conferred by the provisions of Part III of the Constitution. Further the challenge to the Act on the basis of Articles 14, 19 and 31 would not be available to the petitioners if the Act falls within the purview of Articles 31-A, 31-C of the Constitution.
25. We shall now refer to the contentions urged on behalf of the petitioners in these petitions. Sri P. A. Chowdary, appearing for the petitioners in W. P. No. 35 of 1975 started by contending that several of the contentions based on Articles 14, 19, 31, are covered by the Judgments of the Supreme Court. However he raised the following points:--
(1) The definitions of 'family unit' and 'person' are ultra vires the powers of the State Legislature, that any law made under Article 245 is subject to the provisions of second proviso to Article 31-A, that the State Legislature could not by definition create an artificial 'family unit' or 'person', that the 'family unit' as defined in the Act, is an artificial family, that under the second proviso to Article 31-A, the Legislature can only make a law with regard to fixation of ceiling limit in respect of an individual, or a natural or juristic person, and not an artificial person like the family unit as defined in the act and that impugned provisions are therefore void ab initio for want of legislative competence.
(2) The provisions of Article 14 and the second proviso to Clause (1) of Article 31-A are injunctions against the legislature from enacting a law contrary to the aforesaid provisions, and any law made in contravention of the aforesaid provisions, would be void for want of legislative competence and therefore the said law is not protected by Article 31-B which applies only to rights conferred by Part III and not to Constitutional limitations imposed on the legislative power by Article 14, and second proviso to Clause (1) of Article 31-A of the Constitution.
(3) (a) Article 31-B became unconstitutional after Kesavanada's case (AIR 1973 SC 1461).
(b) At any rate, the inclusion of the Act in the Ninth Schedule by Thirty Fourth Amendment, affects the basic structure or essential feature of the Constitution, and does not get the protection of Article 31-B. (4) The definition of "family unit" is unrelated to agrarian reform, therefore Article 31-A does not protect the law from challenge under Articles 14. 19 and 31.
(5) Section 4 (1) fixing the 'ceiling area' in respect of a family unit read with the definitions of 'family unit' and 'person' affect the basic structure, as the said provision deprives a citizen to hold minimum property as provided by Section 4 (3) in respect of an individual. The right to hold minimum property is secured by the preamble to the Constitution and the provisions of Articles 19 (1) (f), 23, 24, 31, 39 (a) and therefore the deprivation of the said right of minimum existence by the aforesaid provisions affect the basic structure.
(6) Section 7 (1) which provides for computation of ceiling area by including lands already transferred on or after 24-1-1971, and before notified date, and Section 8 relating to filing of declarations, are unrelated to 'land' and therefore not within the legislative competence of the State Legislature. Similarly the lands 'deemed to be held' in Explanation II read with Section 7 (4) and (51 are unrelated to 'land'. Section 24 imposing penalty is also beyond its legislative competence.
(7) (a) Section 14 (1) proviso regarding allotment of lands to Scheduled Castes/Scheduled Tribes and to Backward Classes notified by Government for purposes of Article 15 (4) is arbitrary and discriminatory.
(8) Article 31-C does not protect the impugned law as 31-C applies only to laws relating to industry and not agrarian reforms.
(b) Further, an Act giving effect to the principles in Article 39 (b) and (c) to get the protection under Article 31-C must deal with an individual as a unit and not a body of individuals.
(9) Ratio decidendi in Kesavananda Bharati's case (AIR 1973 SC 14611 is not discernible; therefore it is not binding as a precedent.
26. Sri M. Natesan, submitted that for the purpose of this case, it is not necessary to determine whether right to property is a basic structure or essential feature of the Constitution and that he is confining his challenge to the ground that the provisions of the Act are arbitrary and discriminatory and offend the provisions of Article 14 of the Constitution.
27. He raised the following contentions.
1. Article 14, the right of equality constitutes a basic structure or an essential feature of the Constitution and therefore the impugned law could be challenged on the ground of Article 14; and the provisions of Articles 31-A, 31-B and 31-C would hot confer Constitutional immunity from challenge under Article 14.
2. The provisions of Section 3 (f), (i) (n), (o) Sections 5 (3) (4) (5) and 7 and 8, 10 (5) and 11 are not related to agrarian reform and deprive the individual of adequate means of livelihood and offend the right of equality under Article 14 and are not saved by Articles 31-A, 31-B and 31-C.
3. Article 31-C is inapplicable as it applies only to laws made for giving effect to principles in Article 39 (b) and (c) which relate to the sphere of Industry and Commerce, and not to laws relating to agrarian reform.
4. Even if the impugned law relates to agrarian reform, it is hit by the second proviso to Clause (1) of Article 31-A as it purports to take away the land under the personal cultivation of a person and which is within the ceiling limit, and Article 31-B does not bar challenge to the Act as offending the second proviso to Article 31-A (1) of the Constitution.
28. Sri G. R. Subbarayan, while adopting the contentions of Sri P. A. Chowdary and Sri M. Natesan raised the following contention.
1. The provisions of Explanation read with Sec. 3 (1) denning 'holding', Sec. 10 (5) (ii), "surrender of land by vested remainderman", Sec. 7 (1) relating to burden of proof regarding transfers in anticipation of ceiling laws, are ultra vires the powers of the legislature as they are hit by the second proviso to Article 31-A (1).
29. Sri P. Babul Reddy, raised the following contentions:
1. The right of equality and the right to property constitute the basic structure or essential features of the Constitution and the impugned law in so far as it offends the said basic structure or essential features is ultra vires.
2. The impugned law offends the second proviso to Clause (1) of Article 31-A of the Constitution and is not saved by Article 31-B.
3. The definitions in the Act of 'family unit', 'holding', 'owner', 'person', 'double crop wet land', and fixation of compensation under Section 15 of the Act, are arbitrary and discriminaloiy and are unrelated to agrarian reform and violate Articles 14, 19 and 31 of the Constitution.
4. The State while making a law for giving effect to the directive principles under Article 39 (b) and (c) of the Constitution, should not derogate from the directive principles contained in Article 39 (a), that minimum property and adequate means of livelihood should be assured to every individual as required by Article 39 (a) and that the impugned Act offends the provisions of Article 39 (a) of the Constitution.
5. Articles 39 (b) and (c) of the Constitution contemplate distribution of the ownership and control of the material resources of the community and the removal of concentration of wealth and means of production; but they do not provide for acquisition of property of an individual, and the impugned law which provides for acquisition of lands is unrelated to the objects of Article 39 (b) and (c) and the law is therefore not saved by Article 31-C of the Constitution,
30. Sri P. Kodandaramayya, contended that right to property and the right of equality constitute basic structure or essential features of the Constitution and Articles 31-A, 31-B and 31-C cannot have the effect of overriding basic structure or essential features of the Constitution and therefore the impugned Act in so far as it offends the said rights is not saved by Articles 31-A. 31-B and 31-C of the Constitution. He further submits that according to the majority view in Kesavananda's case , fundamental rights constitute the basic structure and therefore are outside the amendatory power of the Parliament-31, Sri K. V. Narasinga Rao, learned counsel appearing for the petitioners in W. P. No. 1059 of 1975 raised the following contentions:
1. The impugned Act deprives the owners of their individual holdings by adopting artificial definitions with regard to 'family unit' and 'person' and thus offends the directive principles contained in Article 39 (a) which requires the State to provide adequate means of livelihood to every citizen and that the said definitions are unrelated to agrarian reform and not covered by Articles 31-A and 31-C of the Constitution.
2. Section 14 (1) contemplates allotment of lands mainly for house-sites, and the Government may not distribute the lands for agricultural purposes and therefore the section is wholly unrelated to agrarian reform and is not protected by Article 31-A of the Constitution.
3. The Act offends the provisions of the second proviso to Clause (1) of Article 31-A and is not saved by Article 31-B of the Constitution.
4. The provisions of Sections 4, 8 and 10 of the Act provide for transfer of ownership or control or possession, and surrender of land belonging to one person by another, and that it is not a legislation with respect to land and is not covered by Entry 18. List II of the Seventh Schedule of the Constitution and are therefore ultra vires the powers of the State Legislature.
5. In Telangana area, there has been no classification of lands for over 50 years, that the classification made by Section 5 of the Act is unrelated to the quality and fertility of the lands obtaining today and the section is arbitrary and unworkable and is therefore unenforceable.
32. Sri T. Atlanta Babu, contended, that the concept of individual right is the very basis of a democratic way of life, that the provisions of the Constitution lay special emphasis on the rights of an individual, that the basic structure of the Constitution is the protection of the individual's right and that the definition of 'family unit', destroys the separate legal identity of the individual by merging the individual in the 'family unit' and therefore the said definition offends the basic structure:
2. That the definition of 'family unit' also offends the second proviso to Clause (1) of Article 31-A of the Constitution as the Act does not contemplate surrender of land by the 'family unit' but by the individual owner who is a member of the family unit and that in respect of a member of a family unit, no ceiling has been fixed under the Act and therefore the Act is unenforceable against a member of the family unit.
3. That Explanation 1 (a) to Section 10 of the Act, provides for surrender of excess land by agreement of the members of the family unit and where there is no such agreement, extent surrendered shall be in proportion to the land held by each member of the family unit; and the ceiling should be fixed by the Statute and not by agreement of the parties, and that in so far as Explanation I (a) provides for surrender of excess land by agreement, it amounts to abdication of a legislative function and is unconstitutional; and
4. That the provisions of the Act, are unrelated to agrarian reform.
33. Sri M. Suryanarayana Murty, learned Counsel appearing for the petitioners in Writ Petitions Nos. 1207 to 1211 of 1975 contended that the definition of family unit does not satisfy the requirements of Article 31-A of the Constitution as the 'family unit' is not the proprietor of any 'estate' or entitled to any rights therein as mentioned in Articles 31-A (1) (a) and 31-A (2) (b) of the Constitution and therefore it is not saved by Article 31-A of the Constitution.
34. He also contended that the Act is unrelated to agrarian reform and therefore Article 31-A does not save the impugned Act; that the Article 31 does not apply to law relating to agrarian reforms and that even otherwise, the provisions of the Act do not have any nexus with the objects mentioned in Article 39 (b) and (c) of the Constitution and therefore the protection of Article 31-C is not available.
35. He adopted the arguments of the other Counsel that Article 14 constitutes a basic structure of the Constitution and therefore the Act is not saved by Article 31-B from attack on the ground of violation of Article 14. He also contended that the provisions of Sections 7 and 8 of the Act offend the provisions of the proviso to Clause (1) of Article 31-A and therefore they are not saved by Article 31-B of the Constitution.
36. Sri S. Venkata Reddy, and Sri K. Nagaraja Rao, adopted the arguments of the other counsel and contended that the Act offends the provisions of the proviso to Clause (1) of Article 31-A of the Constitution.
37. Sri M. Jagannadha Rao, and Sri B. V. Subbarayudu while adopting the arguments of the other counsel, raised an additional contention that the petitioners were holding lands within the ceiling area as fixed by the Andhra Pradesh Ceilings on Agricultural Holdings Act, 1961, (Act No. X of 1961), that the impugned Act further reduced the ceiling area thereby depriving the petitioners of the lands held by them under the 1961 Act and that the impugned Act cannot be given retrospective effect so as to take away the rights vested in the petitioners.
38. Sri P. V. Seshaiah, learned counsel for the petitioner in W. P. No. 651 of 1975 contended that the provisions of Section 8 in so far as they require a person to make a declaration in respect of lands held by him including the lands situate outside the State, are ultra vires the powers of the State Legislature.
39. Sri K. Kameswara Raiu, learned counsel for the petitioners in W. P. No. 623 of 1975 etc., submitted that he is not challenging the Act on the ground of infringement of any provisions of part III or on the ground that the Act does not relate to agrarian reform. He proceeds on the assumption that the Act is intended to give effect to the policy in Article 39 (b) and (c) of the Constitution but seeks to challenge the Act mainly on the ground of want of legislative competence. His contentions are as follows:
Fixing of ceiling limit in respect of land does not fall under Entry 18 of List II or Entry 42, List III but falls under the residuary Item 97, of List I of the Seventh Schedule to the Constitution and therefore the impugned Act fixing ceiling on agricultural holdings is ultra vires the powers of the State Legislature.
The definition, of 'family unit' violates the directive principles particularly those contained in Article 39 (a) and 39 (f) of the Constitution as the impugned Act does not ensure adequate means of livelihood and that it also results in moral or material abandonment of minors.
In the context of Article 31-A and the definition of 'estate' and other expressions like 'holding', 'personal cultivation', 'existing law', 'fixation of ceiling area', occurring in the said Article, 'ceiling has to be fixed with reference to the individual and not a family unit and that the definition of 'family unit' and the ceiling fixed for a family unit violate the provisions of Article 31-A of the Constitution.
The ceiling limit for a family unit, violates the Constitutional concept of a person as contemplated by Article 31-A read with the definition of person in Section 3 (42) of the General Clauses Act, and that the family unit as defined in the Act in so far as the members constituting the unit do not have any common right or interest or management, cannot be called a person as known to law; and the inclusion of 'family unit' 'in the definition of 'person' in Section 3 (o) of the Act has the effect of widening the definition of a person in Article 31-A of the Constitution and is ultra vires the powers of the State Legislature.
Article 31-A is a special provision, end Article 31-B does not preclude challenge of the Act on the ground of violation of the provisions of Article 31-A of the Constitution.
40. In W.P. 1077 of 1975 the Learned Counsel raised an additional point that Section 7 (3) read with the definition of land in Section 3 (j) of the Act which provides that land converted into non-agricultural land within a period of five years before the notified date shall be deemed to be an agricultural land on the notified date, is ultra vires the powers of the State Legislature as the said provisions are unrelated to land and not covered by Entry 18 of List II of the Seventh Schedule to the Constitution and that the said provisions which apply to lands converted into Salt Pans long prior to coming into force of the Act, are repugnant to the provisions of the Central Excises and Salt Act, 1944, and the impugned Act in its application to lands converted into Salt Pans, is ultra vires the powers of the State Legislature.
41. Sri Soli Sohrabji, contended that the definition of 'family unit' is beyond the competence of the State legislature as the definition of 'family unit' contravenes the Constitutional concept of a 'person' in Article 31-A Clause (1) second proviso. He also contended that Articles 31-A and 31-B do not confer rights but only confer Constitutional immunity from challenge on the ground of violation of rights in Part III, that Article 31-A (1) second proviso does not confer a right and that it constitutes a prohibitive condition for making a law and that any law transgressing the said condition is ultra vires.
42. The learned Advocate-General appearing on behalf of the State of Andhra Pradesh contended as follows: The fundamental rights under Articles 14, 19 and 31 do not constitute the basic structure or essential features of the Constitution, that according to the majority view in Kesavananda Bharati v. State of Kerala. , the fundamental rights can be abridged or abrogated by the Parliament by exercising the power of amendment, that Articles 31-A, 31-B and the First Part of 31-C have been held to be valid by the decisions of the Supreme Court, that the challenge to the Act on the ground of violation of the rights under Articles 14, 19 and 31 of the Constitution is precluded by the provisions of Articles 31-A, 31-B and 31-C of the Constitution.
Agrarian Reforms have been given special protection even at the time the Constitution was framed, as is clear from Clauses (4) and (61 of Article 31, that subsequently the First Amendment to the Constitution introduced Articles 31-A and 31-B the validity of which has been upheld by the Supreme Court, that Kesavananda Bharati's case also proceeded on the assumption that Articles 31-A and 31-B are valid.
The fact that Article 31-C first part, was upheld shows that the right of equality and right to property conferred by Articles 14, 19 and 31 do not constitute basic structure or essential features of the Constitution.
The State Legislature is competent to legislate and create an artificial 'family unit' and treat the said 'family unit' as a person for the purpose of giving effect to the law relating to agrarian reform.
The definitions of 'family unit' and 'person' do not offend the proviso to Clause (1) of Article 31-A of the Constitution as it is competent for the State to club the several individuals for the purpose of fixing the ceiline on holdings.
The impugned Act is covered by Entry 18. List II and Entry 42 of List III of the Seventh Schedule and is within the legislative competence of the State Legislature.
The pith and substance of the legislation is land in Entry 18, List II, and therefore the provisions of the Act are not repugnant to the Central Excises and Salt Act, 1944.
The impugned Act while repealing the Andhra Pradesh Ceiling on Agricultural Holdings Act, 1961 further enacted that all proceedings pending under the said Act, shall abate and therefore the Act has been given retrospective effect and the rights accrued under the 1961 Act, have been validly taken away.
43. He further contended that Article 31-A (1) second proviso confers another fundamental right with regard to payment of compensation for acquisition of lands held by a person which are under his personal cultivation and which - are within the ceiling limit.
44. He submitted that the definition of 'family unit' fixing the ceiling area does not violate the provisions of the said proviso, but conceded that the provisions of Section 7 of the Act, violate the provisions of the said proviso. But this challenge on the ground of violation of the second proviso, is precluded as the Act is included in the Ninth-Schedule and the provisions of Article 31-B of the Constitution protects the Act from such an attack.
45. Sri K. Subramanya Reddy, the Central Government standing Counsel adopted the agruments of the learned Advocate-General, and further contended that the Act cannot be struck down on the ground that it is unreasonable or unworkable, that the Act relates to agrarian reform, that the several contentions urged by the petitioners challenging the validity of the Act, are precluded by reason of the provisions of Articles 31-A, 31-B, 31-C of the Constitution. He also raised a larger point that there is nothing like a basic structure or essential features in the Constitution which cannot be amended by the Parliament in the exercise of the power under Article 368 of the Constitution.
46. Sri V. Venkata Subbarao, learned Counsel appearing for the party respondents who have been impleaded, contended that the rights under Articles 14 and 19 do not constitute the basic structure or essential features of the Constitution and that the Articles 31-A. 31-B and 31-C confer on the impugned Act immunity from challenge on the ground of violation of Articles 14, 19 and 31 of the Constitution.
47. The various contentions urged on behalf of the petitioners can be conveniently brought under the following heads:
1. The impugned Act and in particular the provisions of Section 3 (f) (i), (n) and (o) and Sections 4 (1), 5, 7, 8, 10, 11 and the proviso to Section 14 (1), Section 15 and Section 24 of the Act are arbitrary and discriminatory and offend the rights of the petitioners under Articles 14, 19 and 3l of the Constitution.
2. The aforesaid provisions of the Act are unrelated to agrarian reform and therefore they are not covered by Article 31-A of the Constitution.
3. The provisions of the Act in so far as they affect the fundamental rights under Articles 14 and 19 of the Constitution which constitute the basic structure or essential features of the Constitution, are not protected by the provisions of Articles 31-A, 31-B and 31-C of the Constitution
4. The impugned provisions of the Act, are beyond the legislative competence of the State Legislature as they are not covered by Entry 18, Last II and Entry 42, List III of the Seventh Schedule of the Constitution.
5. The provisions of Section 7 (3) read with the definition of land in Section 3 (i) of the Act, in so far as they apply to salt pan lands, are not covered by Entry 18. List II but by Entry 58 of List I, and are not therefore within the competence of the State Legislature.
6. The said provisions of Section 7 (3) read with Section 3 (i) in so far as they are sought to be applied to lands converted into Salt Pans, are repugnant to the provisions of the Central Excises and Salt Act. 1944.
7. The definitions of 'family unit' and 'person' are ultra vires the powers of the State Legislature as they offend the provisions of the second proviso to Clause (1) of Article 31-A of the Constitution.
8. The protection given by Article 31-B of the Constitution by including the Act in the Ninth Schedule by the Thirty Fourth Constitution Amendment Act, does not save the impugned Act from challenge on the ground of violation of the second proviso to Clause (1) of Article 31-A of the Constitution.
9. Assuming that the impugned Act is a measure of agrarian reform, it does not get the protection of Article 31-C as the said Article applies only to laws relating to the industrial sphere and not to agrarian reform.
10. The impugned Act has no retrospective effect so as to take away the vested rights accrued to the petitioners under the Andhra Pradesh Ceilings on Agricultural Holdings Act, 1961.
48. Now it is clear, the challenge to the Act and its provisions based on Articles 14, 19 and 31, would be available to the petitioners only if the Act and the impugned provisions do not have the immunity conferred by Articles 31-A, 31-B and 31-C of the Constitution. All the learned counsel appearing for the petitioners sought to get over the Constitutional immunity conferred by Articles 31-A, 31-B and 31-C of the Constitution on the grounds that the impugned Act offends Articles 14 and 19 of the Constitution which constitute the basic structure or essential features of the Constitution and that the Act is unconstitutional for want of legislative competence.
49. It is contended that the protection of Article 31-A is not available as according to the learned Counsel for the petitioners, the various provisions of the Act are unrelated to agrarian reforms and fall outside the purview of Article 31-A.
50. But it is difficult to accept this contention. The preamble to the Act states, that it is an Act to consolidate and amend the law relating to the fixation of ceiling on agricultural holdings and tak-ing over of surplus lands and to provide for the matters connected therewith. The provisions of the Act which have been extracted earlier, show that the Act is a measure of agrarian reform. The several provisions of the Act provide for fixation of ceiling on agricultural holdings, and for acquisition of the surplus in excess of the ceiling area and for distribution of the same to agricultural labourers, village artisans or other poor persons or weaker sections, either for the purpose of agriculture or purposes ancillary thereto. The legal position as to what constitutes an agrarian reform is now well-settled by the decisions of the Supreme Court.
51. In Sri Ram Narain v. State of Bombay, dealing with the Constitutional validity of the Bombay Tenancy and Agricultural Lands (Amendment) Act (Act No. 13 of 1956), Bhagwati. J., after referring to the provisions of the Bombay Tenancy and Agricultural Lands Act. 1948 observed as follows:--
"These instances culled out from some of the provisions of the 1948 Act go to show that the agrarian reform which was initiated by that Act was designed to achieve the very same purpose of distribution of the ownership and control of agricultural lands so as to subserve the common good and eliminate the concentration of wealth to the common detriment which purpose became more prominent when the Constitution was ushered in on January 26, 1950 and the directive principles of State Policy were enacted inter alia in Articles 38 and 39 of the Constitution."
52. In The Kannan Devan Hills Produce Co. Ltd. v. State of Kerala, the Constitutional validity of Kannan Devan Hills, (Resumption of Lands) Act (Act No. 5 of 1971). was challenged and it was contended that the Act was not a measure of agrarian reform and was not protected from challenge by Article 31-A of the Constitution. Their Lordships held that Section 9 of that Act envisaged three purposes namely: (1) reservation of lands for promotion of agriculture; (2) reservation of land for the welfare of agricultural population and (3) assignment of remaining lands to agriculturists and agricultural labourers, and that all the purposes mentioned above were comprised within the concept of agrarian reform. Their Lordships referred to the decision in Ranjit Singh v. State of Punjab, , where Hida-yatullah, J. (as he then was) gave a wide meaning to the concept of agrarian reform in the following words:--
"The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few on the other, but envisaged also the raising of economic standards and better-Ing rural health and social conditions. Provisions for the assignment of lands to village Panchayat for the use of the general community or for hospitals, schools, manure pits, tanning grounds etc., enure for the benefit of rural population and must be considered to be an essential part of the redistribution of holdings and open lands to which no objection is apparently taken. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough. There must be a proper planning of rural economy and conditions and a body like the village Panchayat is best designed to promote welfare than individual owners of small portions of lands."
53. Their Lordships further held that:--
"in a sense agrarian reform is wider than land reform. It includes besides land reform something more and that something more is illustrated by the definition of "common purpose" which was sustained in Ranjit Singh's case."
54. In a later decision in State of Kerala v. G. R. Silk Mfg. (Wvg ) Co., . Kerala Private Forests (Vesting and Assignment) Act, 1971 was challenged on the ground that it was not a measure of agrarian reform and not protected by Article 31-A of the Constitution. Palekar, J. observed in paragraph 19 as follows:--
"What then is the scheme of agrarian reform envisaged in the impugned Act ? The title of the Act shows that it is an Act to provide for the vesting in the Government or private forests for the alignment thereof to agriculturists and agricultural labourers for cultivation. The preamble shows that such private forests which the legislature thought to be agricultural lands in the sense, already explained should be so utilised as to increase their agricultural production in the State to promote the welfare of the agricultural population in the State. It is further stated in the preamble that in order to give effect to the above objects it was necessary that the private forests should vest in the Government. The objectives of increasing the agricultural production and the promotion of the welfare of the agricultural population are clearly a predominant element in agrarian reform. How these objectives are to be implemented are generally stated in Sections 10 and 11. All the private forests, after certain reservations are to be assigned to agriculturists or agricultural labourers and to the poorer classes of the rural population desiring bona fide to take up agriculture as a means of their livelihood."
55. Krishna Iyer. J., observed in Paragraph 30 as follows:--
"The concept of agrarian reform is a complex and dynamic one promoting wider interests than conventional reorganisation of the land system or distribution of land. It is intended to realise the social function of the land and includes--we are merely giving, by way of illustration, a few familiar proposals of agrarian reform -- creation of economic units of rural production, establishment of adequate credit system, implementation of modern production techniques, construction of irrigation systems and adequate drainage, making available fertilizers fungicides, herbicides and other methods of intensifying and increasing agricultural production, providing readily available means of communication and transportation, to facilitate proper marketing of the village produce, putting up of silos, warehouses etc., to the extent necessary for preserving produce and handling it so as to bring it conveniently within the reach of the consumers when they need it, training of village youth in modern agricultural practices with a view to maximissing production and help solve social problems that are found in relation to the life of the agricultural community. The village man, his welfare, is the target."
56. Again His Lordship observed in paragraph 31 as follows:--
"Agricultural economists have focussed attention on the need of underdeveloped countries to upgrade the standards of living of village communities by resort to schemes for increasing food production and reorganising the land system. The main features of the agrarian situation in India and in other like countries are the gross inequality to land ownership, the disincentives to production and the desperate backwardness of rural life."
57. In a recent decision in Kh. Fida Ali v. State of Jammu and Kashmir, the Constitutional validity of the Jammu and Kashmir Agrarian Reforms Act (26 of 1972) was challenged on the ground of violation of Articles 14, 19 and 31 and that it was not protected by Article 31-A of the Constitution, as it was not a legislation relating to agrarian reform. On a consideration of the relevant provisions of the Act, it was held that the Act was a measure of agrarian reform. In coming to the said conclusion, the learned Judge made the following observations in paragraphs 13, 14, 15 and 17.
"13. 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). A ceiling area is fixed for land or orchards or both measuring 12 1/2 standard acres. After the land vests in the State, in accordance with the provisions of the Act, a provision is made for disposal of the surplus land in accordance with the rules.
14. The main focus of the Act is to see that the tillers, who form the backbone of the agricultural economy, are provided with land for the purpose of personal cultivation subject to the ceiling provision even in their case. The Act makes effective provisions for creating a granary of land at the disposal of the State for equitable distribution, subject to the limit, amongst the tillers of the soil and even the owners who would make 'personal culivation' of the same within the meaning of the Act. In the nature of things it is imperative that a ceiling area has to be fixed and those who have so far enjoyed land in large tracks mostly without personally cultivating the same; are required to share with others who have no land of their own but are genuine tillers of the soil. Even so, no one is allowed to own more than the ceiling area.
15. In fixing the ceiling area again land and orchards are both included.
16. XX XX XX XX
17. 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 to floods and so many other factors in formulating a scheme of agrarian reforms suitable to a particular State. Where a modest beginning is made with the land at disposal, modern methods of mechanisation and other improvements can be resorted to with the help of the State machinery available to the tillers of the soil. Such details can be worked out gradually by various processes in the course of implementation of the provisions of the Act and the rules which definitely provide sufficient elasticity. We are of opinion that the impugned Act has been passed with the definite object of agrarian reforms and cannot be successfully challenged on the score of violation of Article 14, Article 19 and Article 31 in view of the provisions of Article 31-A."
58. The impugned Act also provides for acquisition by the State of the surplus lands above the ceiling limit and for disposal of the said lands by allotment to agricultural labourers and other poor persons for the purpose of agriculture and other purposes ancillary thereto. We therefore hold that the impugned Act is a measure of agrarian reform and falls within the scope of Article 31-A of the Constitution.
59. Sri M. Suryanarayana Murthy, however sought to contend that the definition of 'family unit' does not satisfy the requirements of Articles 31-A (1) (a) and 31-A (2) (b) of the Constitution on thi ground that the lands sought to be acquired are not an "estate" within the meaning of Article 31-A (1) (a) and that no rights of any proprietor in such an estate are being acquired.
60. But we do not find any merit in the submission. The expression, "estate", in Article 31-A (2) includes any land held under ryotwari settlement and the expression "rights" in Article 31-A (21 (b) includes any rights in such an "estate". For the purpose of fixing the ceiling limit, the lands held by each member of the family unit are aggregated and it is only the rights of each member of the family unit in the surplus lands in excess of the ceiling limit that are acquired. Therefore the whole of the Act including the definition of 'family unit' is covered by Article 31-A of the Constitution.
61. We shall now refer to the contention urged on behalf of the petitioners that Articles 14 and 19 of the Constitution constitute the basic structure or essential features of the Constitution, and that the impugned provisions of the Act are not protected by the provisions of Articles 31-A, 31-B and 31-C from challenge on the ground of violation of the rights conferred by Articles 14 , and 19. The contention of all the learned counsel for the petitioners is that the Supreme Court has held in Kesavananda Bharati's case that Parliament, cannot in exercise of the power of amendment conferred by Article 368 of the Constitution, destroy or damage the basic structure or essential features of the Constitution, and that fundamental rights including Articles 14, 19 constitute the basic structure or essential features of the Constitution and therefore Articles 31-A, 31-B and 31-C of the Constitution would not preclude challenge on the ground of violation of the basic structure or essential features of the Constitution. The learned counsel for the petitioners and the respondents have cited passages from the Judgments of all the learned Judges in Kesavananda Bharati's case (supra) and contended that the majority view of the Supreme Court in the said decision is that fundamental rights constitute the basic structure or essential features of the Constitution and therefore the Constitution Amendment Acts introducing Articles 31-A. 31-B and 31-C, would not consider Constitutional immunity of the Act from challenge on the ground of violation of Articles 14 and id of the Constitution.
62. In order to appreciate the contention raised on behalf of the petitioners, it is necessary to refer briefly te the circumstances under which the aforesaid Article came to be introduced in the Constitution and the decisions of the Supreme Court upholding the validity of the said Articles.
63. Both the Articles 31-A and 31-B were introduced by the Constitution First Amendment Act, 1951 with retrospective effect with a view to validate the abolition of Zamindaries, and intermediaries and permanent settlement and confer immunity from challenge in Courts. Article 31-A as enacted in 1951 provided that no law affecting the rights of any proprietor or intermediate holder in any estate, shall be void on the ground that it was inconsistent with any of the Fundamental Rights in Part III of the Constitution. Article 31-B was inserted to save the particular acts included in the Ninth Schedule, from challenge on the ground of contravention of any of the rights conferred by Part III of the Constitution. In the Ninth Schedule, originally thirteen Acts relating to abolition of Zamindaries were included. The Constitutional validity of the First Amendment Act was challenged before the Supreme Court in Shankari Prasad v Union of India, AIR 1951 SC 458 = (1952 SCR 89), on the ground inter alia that the Constitution First Amendment Act passed by the Parliament in exercise of its power of amendment under Article 368 of the Constitution was 'law' within the meaning of Article 13 (2) of the Constitution, and that the amendment Act inserting Articles 31-A and 31-B which took away the fundamental rights conferred by Part III of the Constitution was void. The Supreme Court unanimously held that there was a clear demarcation between an ordinary law and an Amendment of the Constitution made in exercise of the constituent power under Article 368 and that in the context of Article 13, the law should be taken to mean rules and regulations made in exercise of ordinary legislative power and not amendment to the Constitution made in the exercise of constituent power with the result that Article 13 (2) did not affect amendments made under Article 368.
64. Subsequently in the case of State of West Bengal v. Bela Banerji, . The Supreme Court held that the word compensation in Article 31 (2), meant full cash equivalent of the property deprived of, and that it was open to the court to invalidate laws if they did not provide for adequate compensation for properties compulsorily acquired or requisitioned. With a view to widen the scope of Constitutional protection to the laws covered by Articles 31-A and 31-B, Parliament enacted the Constitution (Fourth) Amendment Act, 1955 whereby Article 31 (2) was amended, providing that the validity of laws authorising compulsory acquisition and requisition is not liable to be questioned on the ground that the compensation is inadequate. Article 31-A was also amended so as to bring within its purview laws relating to social welfare. But the immunity is restricted to challenge on the basis of Articles 14, 19 and 31 of the Constitution and not all the rights conferred by Part III. The Ninth Schedule was amended by adding seven more Acts to confer protection of Article 31-B. Even after the amendment, there were conflicts of views with regard to the question as to whether the amendment of Article 31 (2) would bar the question of adequacy of compensation from being challenged in Court: vide Vajravelu v. Special Deputy Collector, : Union of India v. Metal Corporation, and Shanti Lal Mangal Das, .
65. In Bank Nationalisation case, R. C. Cooper v. Union of India, the view taken in Shanti Lal Mangal Das. , was overruled and the question of compensation once again became justiciable but on certain limited grounds. Further it was also found that the protection afforded by Article 31-A was not effective to cover the legislation relating to ryotwari lands, and the several measures of Land Reforms were successfully challenged in Court, vide K. Kunhikoman v: State of Kerala, AIR 1982 SC 723, Krishnanswamy Naidu v. State of Madras, . With a view to further enlarge the scope of the protection of Articles 31-A and 31-B, Parliament enacted the Constitution Seventeenth Amendment Act of 1964, by which Article 31-A was amended by enlarging the definition of 'estate' so as to include inter alia land held under ryotwari settlement but at the same time adding a second proviso in Clause (1) of Article 31-A providing for payment of compensation at a rate not less than the market value in respect of land held by a person which is under his personal cultivation and which is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto. In the Ninth Schedule, forty-four Acts were inserted.
66. The validity of the Seventeenth Amendment Act was upheld by the Supreme Court in Sajjan Singh v. State of Rajasthan. . The Seventeenth Amendment Act was again challenged before the Supreme Court in Golaknath v. State of Punjab, on the ground that the Seventeenth Amendment Act was beyond the amending power of Parliament under Article 368 of the Constitution.
67. His Lordship Subba Rao, C. J., speaking for the majority held in paragraph 53 (1). (2), (3), (4) and (51 as follows:--
"The aforesaid discussion leads to the following results;
(1) The power of the Parliament to amend the Constitution is derived from Articles 245. 246 and 248 of the Constitution and not from Article 368 thereof which only deals with procedure. Amendment is a legislative process.
(2) Amendment is 'law' within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof. It is void.
(3) The Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act. 1955, and the Constitution (Seventeenth Amendment) Act, 1964 abridge the scope of the fundamental rights. But, on the basis of earlier decisions of this Court they were valid.
(4) On the application of the doctrine of 'Prospective overruling', as explained by us earlier, our decision will have only prospective operation and, therefore, the said amendments will continue to be valid.
(5) We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein."
68. In view of the Constitutional limitations on the power of Parliament as declared by the Supreme Court in the aforesaid two decisions in Golaknath Case , and Bank Nationalisation Case Parliament first enacted Constitution Twenty Fourth Amendment Act, 1971 in and by which Articles 13 and 368 were amended, expressly conferring powar on Parliament to amend the Conititution in exercise of its constituent power, and further providing that it was not subject to the limitations in Article 13.
69. Later Parliament in exercise of the power of amendment conferred by Article 368 as amended by Twenty Fourth Amendment Act, enacted the Constitution Twenty-fifth Amendment Act, 1971 in and by which Sub-clause (2) of Article 31 has been amended by subsituting the word 'amount' for the word 'compensation' and further providing that the law determining the amount or laying down the principle for determination of the amount shall not be called in question in any Court on the ground that the amount so fixed or determined is not adequate or that such amount is to be given otherwise than in cash. A new Clause 2 (b) has been inserted stating that nothing in Article 19 (1) (f) shall affect any law referred in Article 31 (2).
70. Another Amendment made was the insertion of Article 31-C which reads as follows:--
"31-C. Notwithstanding anything contained in Article 13, no law giving effect to the policy of the State towards securing the principles specified in Clause (b) or Clause (c) of Article 39 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, Article 19 or Article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy :
Provided that where such law is made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent."
71. By this Article it was provided that a law giving effect to the policy for securing the principles in Clauses (b) and (c) of Article 39 shall not be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14, 19 or 31, and that no law containing a declaration that it is for giving effect to the policy aforesaid shall be called in question in any court on the ground that it does not give effect to such policy.
72. By the date of passing of Twenty-Fourth and Twenty-Fifth Amendment Acts, a Writ Petition filed by H. H. Kesavananda Bharati, challenging the validity of the provisions of the Kerala Land Reforms Act, 1963 (Act No. 1 of 1964) as amended by the Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act No. 35 of 1969) was pending before the Supreme Court. During the pendency of the said Writ Petition, the Kerala Land Reforms (Amendment) Act, 1971 (Act No. 25 of 1971) was passed and the validity of the said Amendment Act was also permitted to be challenged in the said Writ Petition. While the said Writ Petition was pending, the Supreme Court by Judgment dated 26-4-1971 in Kunju-kutti v State of Kerala, upheld the Judgment of the Kerala High Court striking down certain sections of the Kerala Act. It was then that The Constitution (Twenty Ninth Amendment) Act, 1972 was passed inserting the two Kerala Acts in the Ninth Schedule. The challenge to the validity of the Twenty Ninth Amendment Act was also allowed to be raised as an additional ground in the Writ Petition then pending in the Supreme Court.
73-75. Before the Supreme Court the correctness of the view of the majority in Golaknath's case and the validity of the provisions of Twenty-fourth, Twenty-fifth and Twenty-ninth Constitution Amendment Acts were assailed. The contentions among others before the Supreme Court broadly were:
That the Amendment of the Constitution by Parliament under Article 368, is a law within the meaning of Article 13 (2) and that the said power of Parliament to amend the Constitution is subject to the limitations contained in Article 13 (2).
That Parliament's power to amend the Constitution under Article 368, is not absolute or unlimited, that the amending power of Parliament, apart from the limitations contained in Article 13 (2), is inherently limited by the basic structure and essential features of the Constitution, end that the fundamental rights constitute basic structure or essential features of the Constitution and they could not be abrogated or abridged by exercise of the amending power by Parliament.
76. The case was heard by all the thirteen Judges of the Supreme Court and the majority view set out at the end of the Judgment is as follows:--
"The view by the majority in these writ petitions is as follows:--
1. Golaknath's case is overruled.
2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution
3. The Constitution (Twenty-fourth Amendment) Act, 1971 is valid:
4. Sections 2 (a) and 2 (b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid.
5. The First part of Section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second Part, namely 'and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy' is invalid;
6. The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.
The Constitution Bench will determine the validity of the Constitution (Twenty-sixth Amendment) Act, 1971 in accordance with law.
The cases are remitted to the Constitution Bench for disposal in accordance with law. There will be no order as to costs incurred up to this stage.
Sd/- S. M Sikri, C. J.. J. M Shelat, J.. K. S. HePde, J., A. N. Grover. J., P. Jaganmohan Reddy, J., D. G. Palekar, J., H. R Khanna, J., A. K. Mukherjea, J., Y. V. Chandrachud, J.".
77. The final order which was signed by all the thirteen Judges, reads as follows:--
"The Constitution Bench will determine the validity of the Constitution (Twenty-sixth Amendment) Act. 1971 in accordance with law.
The cases are remitted to the Constitution Bench for disposal in accordance with law. There will be no order as to costs incurred upto this stage."
78. According to the majority view in Kesavananda Bharati v. State of Kerala, , Article 368 of the Constitution does not enable Parliament to alter the basic structure or framework of the Constitution. The learned counsel for the petitioners relying on the aforesaid decision sought to contend that Articles 31-A, 31-B and 31-C of the Constitution do not afford protection to a law which offends the basic structure or framework of the Constitution that fundamental rights in Part III of the Constitution, and in particular the rights conferred by Articles 14 and 19 constitute the basic structure or essential features of the Constitution and therefore the protective umbrella of Articles 31-A, 31-B and 31-C of the Constitution is not available to a challenge of the Act on the score of Articles 14 and 19 of the Constitution.
79. The learned counsel for the petitioners relied on the preamble to the Constitution and various other provisions of the Constitution to illustrate what constitutes the basic structure or essential features of the Constitution.
80. But we do not think it necessary to go into the broad question as to what constitute the basic structure or essential features of the Constitution. In these Writ Petitions the question that falls for consideration is whether the rights under Articles 14 and 19 of the Constitution constitute basic structure or essential features of the Constitution. None of the counsel however contended that Article 31 constitutes basic structure or essential features of the Constitution.
81. The question for consideration is whether Articles 14 and 19 of the Constitution constitute the basic structure or essential features of the Constitution. Here again, the question as to whether the broad concept of equality constitutes the basic structure or essential features of the Constitution does not arise for consideration. The point for consideration narrows down to the question, 'whether Article 14 in relation to the rights to property conferred by Articles 19 and 31 constitutes a basic structure or essential feature of the Constitution ?'
82. The learned Counsel for the petitioners state that according to the majority view of the Supreme Court in Kesavananda Bharati's case all the fundamental rights including Article 14 constitute the basic structure or essential features: whereas the learned Advocate-General submits that the majority view of the Supreme Court in the said case is that Articles 14 and 19 do not constitute the basic structure or essential features of the Constitution. We have to therefore refer to the view expressed by Their Lordships of the Supreme Court on this aspect of the case.
83. Sikri, Chief Justice held in paragraph 492 (c) as follows:--
"The expression "amendment of this constitution" does not enable Parliament to abrogate or take away fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article."
84. Shelat and Grover, JJ., held in paragraph 624 (2) fc) as follows:--
"Even if the amending power includes the power to amend Article 13 (2), a question not decided in Golak Nath the power is not so wide as to include the power to abrogate or take away the fundamental freedoms."
85. Hegde and Mukherjea, JJ., held in paragraph 759 (3) as follows:
"Though the power to amend the Constitution under Article 368 is a very wide power, it does not yet include the power to destroy or emasculate the basic elements or the fundamental features of the Constitution."
86. Jaganmohan Reddy, J., held in paragraph 1222 (2) as follows:--
"Twenty-fourth Amendment: The word 'amendment' in Article 368 does not include repeal. Parliament could amend Article 368 and Article 13 and also all the fundamental rights and though the power of amendment is wide, it is -not wide enough to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements in the basic structure of the Constitution or of destroying the identity of the Constitution. Within these limits. Parliament can amend every article of the Constitution. Parliament cannot under Article 368 expand its power of amendment so as to confer on itself the power to repeal, abrogate the Constitution or damage, emasculate or destroy any of the fundamental rights or essential elements or the basic structure of the Constitution or of destroying the identity of the Constitution, end on the construction placed by me, the Twenty-fourth Amendment is valid, for it has not changed the nature and scope of the amending power as it existed before the Amendment."
87. According to the view of the six learned Judges, the fundamental rights constitute the basic structure or essential features of the Constitution and they cannot be abrogated or destroyed or emasculated. But according to the other learned Judges, the fundamental rights do not constitute the basic structure or essential features.
88. Ray, J. (as he then was) held in paragraph 1078 as follows:
"The power to amend is wide and unlimited. The power to amend means the power to add, alter or repeal any provision of the Constitution. There can be or is no distinction between essential and inessential features of the Constitution to raise any impediment to amendment of alleged essential features. Parliament in exercise of constituent power can amend any provision of this Constitution."
89. Palekar, J., held in paragraph 1328 that there were no limitations on the power to amend fundamental rights end concluded in paragraph 1343 (1) and (2) as follows:--
"The power and the procedure for the amendment of the Constitution were contained in the unamended Article 368. An Amendment of the Constitution in accordance with the procedure prescribed in that Article is not a 'law' within the meaning of Article 13. An amendment of the Constitution abridging or taking away a fundamental right conferred by Part III of the Constitution is not void as contravening the provisions of Article 13 (2). The majority decision in Golak Nath v. State of Punjab, is with respect, not correct.
(2) There were no implied or inherent limitations on the Amending power under the unamended Article 368 in its operation over the fundamental rights. There can be none after its amendment."
90. Mathew, J., took the view that all the fundamental rights could be amended by way of addition, variation or repeal. In paragraph 1798 on the question of the power of amendment of fundamental rights, the learned Judge concluded as follows:
"I hold that the decision in Golak-nath Case that the Parliament had no power to amend Fundamental Rights in such a way as to take away or abridge them was wrong, that the power to amend under Article 368 as it stood before the 24th Amendment was plenary in character and extended to all the provisions of the Constitution, that the 24th Amendment did not add anything to the content of Article 368 as it stood before the amendment, that It is declaratory in character except as regards the compulsory nature of the assent of the President to a bill for amendment and that the article as amended makes it clear that all the provisions of the Constitution can be amended by way of addition, variation or repeal. The only limitation is that the Constitution cannot be repealed or abrogated in the exercise of the power of amendment without substituting a mechanism by which the State is constituted and organised. That limitation flows from the language of the article itself."
91. Dwivedi, J., also held in paragraph 2008, that "the word 'amendment' in Article 368 is broad enough to authorise the varying, repealing or abrogating of each and every provision in the Constitution including Part III, and that there are no inherent and implied limitations on the amending power in Article 368."
92. Beg, J,. concurred with the reasons of Rey, J. fas he then was) and Mathew, J. and Dwivedi, J.
93. Chandrachud, J., concluded in paragraph 2156 (3) as follows:--
"The decision of the leading majority and of Hidayatullah, J. (in Golak Nath's case) that Parliament had no power to amend the Constitution So as to abrogate or take away Fundamental Rights is incorrect."
94. Khanna, J., summarised his conclusions In paragraph 1550. The conclusions in sub-paragraphs (vi), (vii), (viii), (ix) and (x) are relevant for the purpose of this case and are as follows:
"(vi) The possibility that power of amendment may be abused furnishes no ground for denial of its existence. The best safeguard against abuse of power is public opinion and the good sense of the majority of the members of Parliament. It is also not correct to assume that if Parliament is held entitled to amend Part III of the Constitution, it would automatically and necessarily result in abrogation of all fundamental rights
(vii) The power of amendment under Article 368 does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure or framework of the Constitution. Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including those relating tp fundamental rights as well as those which may be said to relate to essential features. No part of a fundamental right can claim immunity from amendatory process by being described as the essence or core of that right. The power of amendment would also include within itself the power to add, alter or repeal the various articles.
(viii) Right to property does not pertain to basic structure or framework of the Constitution.
(ix) There are no implied or inherent limitations on the power of amendment apart from those which inhere and are implicit in the word "amendment". The said power can also be not restricted by reference to natural or human rights. Such rights in order to be enforceable in a Court of law must become a part of the statute or the Constitution.
(x) Apart from the part of the Preamble which relates to the basic structure or framework of the Constitution, the Preamble does not restrict the power of amendment."
95. According to the conclusions of their Lordships Ray, J., (as he then was) Palekar, Khanna, Mathew, Beg, Dwivedi and Chandrachud, JJ., fundamental rights are not beyond the amending power of Parliament as they do not constitute the basic structure or essential features of the Constitution. The reasons given by the learned Judges are as fol-lows:
Ray, J. (as he then was): "Fundamental rights are social rights conferred by the Constitution. There is no law above the Constitution. The Constitution does not recognise any type of law as natural law. (Para 953).
"On the one hand there is a school of extreme natural law philosophers who claim that a natural order establishes that private capitalism is good and socialism is bad. On the other hand, the more extreme versions of totalitarian legal philosophy deny the basic value of the human personality as such. Outside these extremes there is a far greater degree of common aspirations. The basic autonomy and dignity of human personality is the moral foundation of the teaching of modern natural law philosophers, like Maritain. It is in this context that our fundamental rights and Directive Principles are to be read as having in the ultimate analysis a common good. The Directive Principles do not constitute a set of subsidiary principles to fundamental rights of individuals. The Directive Principles embody the set of social principles to shape fundamental rights to grant a free scope to the large scale welfare activities of the State. Therefore, it will be wrong to equate fundamental rights as natural, inalienable, primordial rights which are beyond the reach of the amendment of the constitution. It is in this context that this court in said that the doctrine of natural rights is nothing but a foundation of shifting sand". (Para. 955).
Palekar, J.:-- "The further argument that fundamental rights are inalienable natural rights and, therefore, un-amendable so as to abridge or take them away does not stand close scrutiny." (Para 1287).
'The so-called natural rights which were discovered by philosophers centuries ago as safeguards against contemporary political and social oppression have in course of time, like the principle of laissez faire in the economic sphere, lost their utility as such in the fast changing world and are recognised in modern political Constitutions only to the extent that organised society is able to respect them. That is why the Constitution has specifically said that the rights are conferred by the people on themselves and are thus, a gift of the Constitution (para. 1288).
"Nor is it correct to describe the fundamental rights, including the right to property as rights "reserved" by the people to themselves. The Constitution does not use the word "reserved". It says that the rights are "conferred" by the people upon themselves, suggesting thereby that they were a gift of the Constitution. The Constitution had, therefore, a right to take them away." (para. 1289).
Khanna, J.:-- "What we are concerned with is as to whether on the true construction of Article 368, the Parliament has or has not the power to amend the Constitution so as to take away or abridge fundamental rights. So far as this question is concerned, the answer, in my opinion, should be in the affirmative, as long as the basic structure of the Constitution is retained", (para. 1432).
"Subject to the retention of the basic structure or framework of the Constitution, I have no doubt that the power of amendment is plenary and would include within itself the power to add, alter or repeal the various articles including those relating to fundamental rights." (para, 1445).
"The word "amendment" in Article 368 must carry the same meaning whether the amendment relates to taking away or abridging fundamental rights in Part III of the Constitution or whether it pertains to some other provisions outside Part III of the Constitution. No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment conferred by Article 368. The same approach, in my opinion should hold good when we deal with amendment relating to fundamental rights contained in Part III of the Constitution. It would be impermissible to differentiate between scope and width of power of amendment when it deals with fundamental rights and the scope and width of that power when it deals with provisions not concerned with fundamental rights." (para. 1446).
"We may now deal with the concept of natural rights. Such rights are stated to be linked with cherished values like liberty, equality and democracy. It is urged that such rights are inalienable and cannot be affected by an amendment of the Constitution. I agree with the learned counsel for the petitioners that some of the natural rights embody within themselves cherished values and represent certain ideals for which men have striven through the ages. The natural rights, have, however, been treated to be not of absolute character but such as are subject to certain limitations, Man being a social being, "the exercise of his rights" has been governed by his obligations to the fellow beings and the society, and as such the rights of the individual have been subordinated to the general weal. No one has been allowed to so exercise his rights as to impinge upon the rights of others. Although different streams of thought still persist, the later writers have generally taken the view that natural rights have no proper place outside the constitution and the laws of the state. It is up to the state to incorporate natural rights, or such of them as are deemed essential, and subject to such limitations as are considered appropriate, in the constitution or the laws made by it. But independently of the constitution and the laws of the state, natural rights can have no legal sanction and cannot be enforced. The courts look to the provisions of the Constitution and the statutory law to determine the rights of individuals. The binding force of constitutional and statutory provisions cannot be taken away nor can their amplitude and width be restricted by invoking the concept of natural rights. Further as natu-ral rights have no place in order to be legally enforceable outside the provisions of the Constitution and the statute, and have to be granted by the constitutional or statutory provisions, and to the extent and subject to such limitations as are contained in those provisions, those rights, having been once incorporated in the Constitution or the statute, can be abridged or taken away by amendment of the Constitution or the statute. The rights, as such, cannot be deemed to be supreme or of superior validity to the enactments made by the State, and not subject to the amendatory process." (para. 1467).
"It cannot, therefore, be said that the stress in the impugned amendments to the Constitution upon changing the economic structure by narrowing the gap between the rich and the poor is a recent phenomenon. On the contrary, the above material shows that this has been the objective of the national leaders since before the dawn of independence, and was one of the underlying reasons for the First and Fourth Amendment of the Constitution. The material further indicates that the approach adopted was that there should be no reluctance to abridge or regulate the fundamental right to property if it was felt necessary to do so for changing the economic structure and to attain the objectives contained in the Directive Principles." (para. 1495).
"So far as the question is concerned as to whether the right to property, can be said to pertain to basic structure or framework of the Constitution, the answer, in my opinion, should plainly be in the negative. Basic structure or framework indicates the broad outlines of the Constitution, while the right to property is a matter of detail. It is apparent from what has been discussed above that the approach of the framers of the Constitution was to subordinate the individual right to property to the social good. Property right has also been changing from time to time." (para 1496).
Mathew, J.: "That all natural rights are liable to be limited or even taken away for common good is itself a principle recognised by all writers on natural law. "However, even though man's natural rights are commonly termed absolute and inviolable, they are limited by the requirements of the universal order to which they are subordinated. Specifically, the natural rights of man are limited intrinsically by the end for which he has received them as well as extrinsically by the equal rights of other men, by his duties towards others." And when the Parliament restricts or takes away the exercise of the Fundamental Rights by military personnel or the police charged with the duty of maintaining the peace, that does not mean that there are no natural rights, or, that by and large, the Fundamental Rights are not a recognition of the natural rights. It only shows that Fundamental Rights like natural rights are liable to be limited for the common good of the society. John Lockes himself did not understand that natural rights are absolute and nowhere did he say so. In other words, because Parliament can restrict the exercise of or even take away the Fundamental Rights of the military personnel or the police charged with the duty of maintaining peace by law, it does not follow that fundamental Rights, by and large, are not a recognition of the basic human rights or that those rights are not liable to be limited by positive law for common good." (para. 1694).
"To sum up this part of the discussion I think there are rights which inhere in human beings because they are human beings -- whether you call them natural rights or by some other appellation is immaterial. As the preamble indicates, it was to secure the basic human rights like liberty and equality that the people gave unto themselves the Constitution and these basic rights are an essential feature of the Constitution; the Constitution was also enacted by the people to secure justice, political, social and economic. Therefore, the moral rights embodied in Part IV of the Constitution are equally an essential feature of it the only difference being that the moral rights embodied in Part IV are not specifically enforceable as against the State by a citizen in a Court of law in case the State fails to implement its duty but, nevertheless they are fundamental in the governance of the country and all the organs of the State, including the judiciary, are bound to enforce those directives. The Fundamental Rights themselves have no fixed content: most of them are mere empty vessels into which each generation must pour its content in the light of its experience. Restrictions, abridgment, curtailment, and even abrogation of these rights in circumstances not visualized by the Constitution-makers might become neces-'sary: their claim to supremacy of priority is liable to be overborne at particular stages in the history of the nation by the moral claims embodied in Part IV. Whether at a particular moment in the history of the nation, a particular Fundamental Right should have priority over the moral claim embodied in Part IV or must yield to them is a matter which must be left to be decided by each generation in the light of its experience and its values. And, if Parliament, in its capacity as the Amending Body, decides to amend the Constitution in such a way as to take away or abridge a Fundamental Right to give priority value to the moral claims embodied in Part IV of the Constitution, the Court cannot adjudge the constitutional amendment as bad for the reason that what was intended to be subsidiary by the Constitution-makers has been made dominant. Judicial review of constitutional amendment for the reason that it gives priority value to the moral claims embodied in Part IV over the Fundamental Rights embodied in Part III is impermissible. Taking for granted that by and large that Fundamental Rights are the extensions permutations and combinations of natural rishts in the sense explained in this judgment, it does not follow that there is any inherent limitation by virtue of their origin or character in their being taken away or abridged for the common good- The source from which these rights derive their moral sanction and transcendental character, namely, the natural law, itself recognizes that natural rights are only prima facie rights liable to be taken away or limited in special circumstances for securing higher values in a socitey or for its 'common good. But the responsibility of the Parliament in taking away or abridging a Fundamental Right is an awesome 'one and whenever a question of constitutional amendment which will have the above effect comes up for consideration. Parliament must be aware that they are the guardians of the rights and liberties of the people in a greater degree than the courts, as the courts cannot go into the validity of the amendment on any substantive ground (para. 1728).
"In the light of what I have said, I do not think that there were any express or implied limitations upon the power of Parliament to amend the Fundamental Rights in such a way as to destroy or damage even the core or essence of the rights and the Twenty-fourth Amendment, by its language, makes it clear beyond doubt. The opening words of the amended article should make it clear that no invisible radiation from any other provision of the Constitution would operate as implied limitation upon the power of amendment. Further, the amended Article 368 puts it beyond doubt that the power to amend the provisions of the Constitution is in the article itself, that the power includes the power to add, vary or repeal any provision of the Constitution, that the power is a constituent power, that the assent of the President to a bill for amendment is compulsory and that nothing in Article 13 (2) will apply to an amendment under the Article." (Para. 1729).
Beg. J.:-- "A socialistic state must have the power and make the attempt to build a new social and economic order free from exploitation misery and poverty, in the manner those in charge of framing policies and making appropriate laws think best for serving the public good. We do not today conceive of public good or progress in terms of a "movement from status to contract" but in terms of a movement for control of economic and other kinds of powers of exploitation by individuals so as to ensure that public good not merely appears to be served but is actually served by all individuals wherever or however placed. The emphasis today is upon due performance of their social obligations by individuals before claiming any right however fundamental or important it may be because rights and duties are correlative-" (para. 1862).
Dwivedi, J.:-- "Shri Palkhiwala has contended vigorously that people have reserved to themselves the fundamental rights and that those rights are sacred and immutable natural rights. It seems to me that it is an error to consecrate the rights enumerated in Part III of the Constitution as "Sacrosanct" or "Transcendental" or to romanticise them as "natural rights" or "Primordial rights" or to embalm them in the shell of "inalienable and inviolable" and "immutable", (para. 1930).
"To regard them as sacrosanct does not seem to comport with the secular virtue of our Constitution. To regard them as "natural rights" or "primordial rights"
overlooks the fact that the rights specified in Articles 15, 16, 17, 18, 21, 22, 23, 24, 25, 27, 28, 29, 30 and 32 were begotten by our specific national experience. They did not exist in India before the Constitution." (para 1931).
"The Constitution-makers did not regard the rights mentioned in Part III as 'sacrosanct' or as 'inalienable' and 'inviolable' or 'Immunable'." (para. 1932).
"Rights in Part III are downright man made. According to Dr. B. R. Ambedkar, they are the 'gift of law' 7 CAD 40 Articles 13 (2) and 32 (1) and (2) and 359 expressly speak of the fundamental rights as "conferred by Part III". They are thus the creatures of the Constitution. They are called fundamental rights not because they are reserved by the people to themselves but because they are made indestructible by legislative laws and executive action. There is no analogoue in the Constitution to the Amendment of the U. S. Constitution which expressly speaks of the reservation of powers by the people. It is well to remember that the I Amendment taking away or abrogating certain rights was passed by the Constituent Assembly acting as the Provisional Parliament. It reflects the Constitution-makers' intention that the rights can be abrogated." (para. 1934).
Chandrachud, J.:-- "Fundamental Rights undoubtedly occupy a unique place in civilized societies, whether you call them "transcendental", "inalienable", "inviolable" or as Liber called them, "primordial". There is no magic in these words, for, the strength and importance of these rights is implicit in their very description in the Constitution as "fundamental". But the special place of importance which they occupy in the scheme of the constitution, cannot by itself "justify the conclusion that they are beyond the reach of the amending power. Article 13 (2) clearly does not take in the amending power and Article 368 does not except the Fundamental Rights from its scope." (para. 2089).
"It is difficult to accept the argument that inherent limitations should be read into the amending power on the ground that Fundamental Rights are natural rights which inhere in every man. There is intrinsic evidence in Part III of the Constitution to show that the theory of natural rights was not recognised by our Constitution-makers- Article 13 (2) speaks of rights "conferred" by Part II and enjoins the States not to make laws inconsistent therewith. Article 32 of the Constitution says that the right to move the Supreme Court for the enforcement of rights "conferred" by Part III is guaranteed. Before the Fundamental Rights were thus conferred by the Constitution, there is no tangible evidence that these rights belonged to the Indian people. Article 19 of the Constitution restricts the grant of the seven freedoms to the citizens of India. Non-citizens were denied those rights because the conferment of some of the rights on the Indian citizens was not in recognition of the pre-existing natural rights. Article 33 confers upon the Parliament the power to determine to what extent the rights conferred by Part III should be restricted or "abrogated" in their application to the members of the Armed Forces. Article 359 (1) empowers the President to suspend the rights "conferred" by Part III during the proclamation of an emergency. Articles 25 and 26 by their opening words show that the right to freedom of religion is not a natural right but is subject to the paramount interest of society and that there is no part of that right, however important which cannot and in many cases has not been regulated in civilized societies. Denial to a section of the community the right of entry to a place of worship may be a part of religion but such denials, it is well known, have been abrogated by the Constitution. (Sri Venkataramana Devaru v. State of Mysore, per Venkatarama Aiyar. J., see also Bourne v. Keane, 1919 AC 815 at p. 861 per Lord Birkenhead, L. C.). Thus, in India, citizens and non-citizens possess and are entitled to exercise certain rights of high significance for the sole reason that they are conferred upon them by the Constitution." (Para. 2096).
96. In view of the aforesaid reasons and conclusions of the majority of the learned Judges, it is not possible to accept the contention of the petitioners that fundamental rights under Articles 14 and 19 of the Constitution constitute the basic structure or the essential features of the Constitution.
97. It is also significant to note that His Lordship Khanna, J., not only took the view that fundamental rights can be taken away by amendment by Parliament as long as the basic structure of the Constitution remains unaffected but went on to say that the right to property does not pertain to basic structure or frame work of the Constitution.
98. Dwivedi. J., also held that "although the amended Article 31 (2) according to my construction of it, will abrogate the right of property, it is constitutional as it falls within the scope of the twenty fourth Amendment which I have held to be constitutional." (para 1986).
99. Mathew, J., also took the view that private property is not an absolute right. The learned Judge observed in paragraphs 1742 and 1745 as follows:--
"1742. However, it is a very common mistake to speak of property as if it were an institution having a fixed content constantly remaining the same; whereas in reality, it has assumed the most diverse forms and is still susceptible to great unforeseen modifications.
1745. "The framers of our Constitution made the right to acquire, hold and dispose of property a Fundamental Right thinking that every citizen in this country would have an opportunity to come by a modicum of that right. Therefore, as the learned Attorney-General rightly contended any defence of the right to own and hold property must essentially be the defence of a well distributed property and not an abstract right that can in practice be exercised only by the few."
100. From the aforesaid observations, it follows that right to property conferred by Articles 19 and 31 and the right of equality in its relation to right to property cannot form the basic structure or essential features of the Constitution, and are not outside the purview of the amending power of Parliament.
101. Further, all the three cases Shankari Prasad's case (AIR 1951 SC 458), Sajjan Singh's case and Golak Nath's case , upheld the constitutional validity of Articles 31-A and 31-B of the Constitution and that view has been confirmed by the decision In Kesavananda's case . In Kesavananda's case, the Supreme Court no doubt overruled the majority view in Golak Nath's case that Parliament would have no power to abridge or take away the rights conferred by Part III of the Constitution. This again only leads to the conclusion that the amendments of the Constitution introducing Articles 31-A and 31-B which take away the fundamental rights, are constitutionally valid.
102. Further by the Constitution Twenty-ninth Amendment Act the two Kerala Acts which were impugned before the Supreme Court in Kesavananda's case, were included in the Ninth Schedule thus conferring the protection of Article 31-B of the Constitution. All the learned Judges unanimously upheld the validity of the twenty-ninth Amendment Act. This also shows that the rights under Articles 14, 19 and 31 in so for as they relate to the property rights do not constitute basic structure or essential features of the Constitution.
103. Again the Supreme Court by a majority held that the first part of Article 31-C was valid. Article 31-C first part is similar to Article 31-A and protects a law giving effect to the policy of the State towards securing the principles specified in Clauses (b) and (c) of Article 39 from challenge on the ground of infringement of the rights under Articles 14, 19 and 31 of the Constitution. The second part of Article 31-C ousts the jurisdiction of the Court to find out whether the law gives effect to the principles in Article 39 (b) and (c).
104. Khanna, J. held that judicial review had become an integral part of our constitutional system and a power had been vested in the High Court and Supreme Court to decide about the Constitutional validity of the provisions of the statute and "vesting of power of exclusion of judicial review in a Legislature including State Legislature, contemplated by Article 31-C in my opinion strikes at the basic structure of the Constitution." If Articles 14, 19 and 31 constitute the basic structure or essential features equally Article 31-C first part which precludes challenge of a law on the ground of violation of the said rights, would have been struck down as damaging or destroying the basic structures of the Constitution. But Article 31-C first part has been held to be valid by the majority. From this also it follows that Articles 14, 19 and 31 in so far as they relate to property rights do not constitute the basic structure or essential features of the Constitution.
105. It is contended for the petitioners that the majority of seven Judges including Khanna, J., took the view that Article 368 of the Constitution did not enable the Parliament to alter the basic structure or framework of the Constitution and out of the majority of the seven Judges six Judges took the view that fundamental rights constitute basic structure or essential features of the Constitution and that Khanna. J., took a different view that the right to property does not pertain to the basic structure or framework of the Constitution and that his view is in minority and therefore we should follow the majority view of the majority Judges.
106. But we find it difficult to accept this contention. While no doubt the seven Judges including Khanna. J., who constituted majority took the view that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution, the other six Judges took the view that Parliament could amend all or any of the provisions of the Constitution including Part III and that there are no basic structure on essential features.
107. So far as the right to property is concerned, the view of Khanna. J., accords with the view of the said six learned Judges. Further only five learned Judges took the view that Article 31-C first part takes away the fundamental rights and therefore not valid: whereas Jaganmohan Reddy. J., upheld the validity of the first part of Article 31-C by severing inter alia the words. "Article 14". However the other seven Judges upheld the validity of Article 31-C though it has the effect of taking away the rights under Articles 14, 19 and 31 of the Constitution. We are inclined to think that so far as the rights under Articles 14, 19 and 31 in relation to property are concerned, the majority view of the Supreme Court is that the Parliament has power to abridge or abrogate the same by exercising the power of amendment under Article 368 of the Constitution. For all the afore-said reasons, we therefore hold that the impugned provisions of the Act are protected by the provisions of Articles 31-A 31-B and the first part of Article 31-C of the Constitution from attack on the basis of Articles 14, 19 and 31 of the Constitution.
108. It is significant to note that subsequent to Kesavananda's case, the Supreme Court had upheld the validity of laws infringing the rights under Articles 14, 19 and 31 on the ground that the said laws were protected by Article 31-A of the Constitution (vide Kh. Fida Ali v. State of Jammu and Kashmir, ; State of Kerala v. G. R. Silk Mfg. (Wvg) Co. and the Godavari Sugar Mills Ltd. v. S. B. Kambie, (Civil Appeal No . It does not appear to have been contended before the Supreme Court in the said cases that Articles 14, 19 and 31 constitute the basic structure of framework of the Constitution and that Article 31-A would not confer immunity on the said laws from attack on the basis of Articles 14, 19 and 31 of the Constitution. This also further strengthens our view that where the law has the protection of Articles 31-A, 31-B and first part of Article 31-C of the Constitution, their validity cannot be challenged on the ground of infringement of the rights under Articles 14, 19 and 31 of the Constitution.
109. Faced with this difficulty of having to get over the constitutional immunity conferred by Articles 31-A. 31-B and first part of Article 31-C of the Constitution from attack on the basis of Articles 14, 19 and 31, the learned counsel for the petitioners sought to steer clear of the said articles by challenging the impugned provisions of the Act on the ground that they are not within the legislative competence of the State Legislature. This ground of challenge is not shut out by Articles 31-A. 31-B and 31-C as they cannot afford protection to or validate a law which is beyond the legislative competence of a legislature. This legal position is undisputed.
110. It is contended that the impugned provisions of the Act are unrelated to land and not covered by Entry 18 List II and Entry 42 List III of the Seventh Schedule of the Constitution.
111. It is contended by Sri P. A. Chowdary, that the provision in Section 7 (1) of the Act that transfer of lands made after 24-1-1971 shall be disregarded for purposes of computation of the ceiling area of a person where he does not establish that the transfer was not effected in anticipation of or with a view to avoiding or defeating the law relating to ceiling on agricultural holdings, is not a legislation with respect to land. Similarly he stated that the provisions of Section 7 (4) and (5) read with the Explanation II of Section 8 (1) and the penalty provision in Section 24 of the Act, cannot be said to be legislation with respect to land falling in Entry 18 of List II of the Constitution.
112. Sri K. V. Narasinga Rao, contended that the provisions of Sections 4 and 8 and the definitions of 'family unit' and 'person' deal with transfer of ownership or control, possession and surrender of lands of one person by another person and they are therefore unrelated to land and do not fall within the purview of Entry 18 of List II.
113. We do not find any merit in these submissions. All the aforesaid provisions are not merely ancillary but are necessary in any legislation relating to fixation of ceiling on agricultural holdings. This contention is no longer tenable as the legal position is well settled by the decisions of the Supreme Court.
114. In L. Jagannath v. Authorised Officer, Land Reforms, Madurai, similar provisions in the Madras Land Reforms (Fixation of Ceiling of Land) Act, 1961 were challenged as beyond the legislative competence of the State Legislature. The learned Judges repelled the aforesaid contention in the following words.
"29. In our view, Entry 18 in List II like any other Entry in the three lists only gives the outline of the subject-matter of legislation and therefore the words in the entry are to be construed in their widest amplitude. The field of legislation covered by the entry is not to be narrowed down in any way unless there is anything in the entry itself which defines the limits thereof. Entry 18 in our opinion is meant to confer the widest powers on the State Legislature with regard to rights in or over land and such rights are not to be measured by or limited to the rights as between landlords and tenants or the collection of rents. The words which follow the expression "rights in or over land" are merely by way of illustration. The specification itself shows that the genus of the rights mentioned is not the one which landlords have vis-a-vis their tenants or vise versa. All kinds of legislation regarding transfers and alienations of agricultural land which may affect the rights therein of landlords and tenants are envisaged by the entry as also improvement of land and colonisation of such land. If the State Government seeks to enforce a measure by which the condition of barren or unproductive lands can be improved, it can do so even if the measure curtails the rights of landlords and tenants over them. If the State wants to enforce a measure of acquiring lands of people who hold areas over a certain ceiling limit so as to be able to distribute the same among the landless and other persons, to give effect to the directive principles in Article 39 (b) and (c) of the Constitution, it is not possible to say that the same would be outside the scope of Entry 18 in List II read with Entry 42 in List III. Such a measure can aptly be described as a measure of agrarian reform or land improvement in that persons who have only small holdings and work on the lands themselves would be more likely to put in greater efforts to make the land productive than those who held large blocks of land and are only interested in getting a return without much effort. The measure does not transgress the limits of the legislative field because it serves to remove the disparity in the ownership of land. Persons who lose the ownership of lands in excess of the ceiling imposed are compensated for the lands acquired by the State and distributed among others. Acquisition of land would not directly be covered by Entry 18 but read with Entry 42 in List III the State has the competence to acquire surplus land so as to give effect to the policy in Article 39 of the Constitution."
115. The learned Judges referred to the earlier decisions of the Supreme Court where Acts containing similar pro-visions were held to be covered by Entry 18 of List II of the Seventh Schedule. We therefore find no merit in the contention that the impugned provisions of the Act are not covered by Entry 18 of List II.
116. In W. P. No. 1077/75, it is contended by Sri K. Kameswara Raju, that the provisions of Section 7 (3) read with the definition of 'land' in Section 3 (i) of the Act in so far as they are made applicable to lands converted as Salt Pans, are outside Entry 18, List II and that they fall within Entry 58 of List I and therefore beyond the competence of the State Legislature. The learned counsel contended that Entry 18 in List II applies only to agricultural lands and not lands converted into non-agricultural lands like salt pans.
117. But there is no merit in this submission. Entry 18 in List II covers land, not merely agricultural land. As observed by their Lordships the Supreme Court in L. Jagannath v. Authorised Officer. L. R. Madurai, , Entry 18 confers widest powers on the State Legislature with regard to rights in or over land. Further in Jagannath Baksh Singh v. State of U. P., referring to the word 'lands' occurring in Entry 49 of List II, it was observed that "it is wide enough to include all lands, whether agricultural or not, and it would be plainly unreasonable to assume that it includes non-agricultural lands but does not include agricultural lands."
118. Similarly the word "lands" occurring in Entry 18 should be given the widest meaning and it includes not only agricultural land but (also) non-agricultural land.
119. But it is contended by Sri Kameswara Raiu, that the lands were already converted into salt pans and therefore the impugned provisions of the Act cannot by adopting the device of deeming provisions, treat the lands as agricultural lands falling within the purview of Entry 18 list II.
120. It is well settled that once a law in pith and substance falls within the Legislative entry, an incidental encroachment on an entry in another list does not affect its validity.
121. It is not disputed that the lands of the petitioners in W. P. No. 1077 of 1975 were dry lands and were capable of being used for agriculture at their inception; but it is stated that they were converted into salt Pans in 1972. By the impugned provisions of Section 7 (3) read with Section 3 (i) of the Act, a retrospective effect is given to the said provisions so as to ignore conversions of agricultural land into non-agricultural land in anticipation of the ceiling law. The said provisions in our opinion are merely incidental and ancillary to the main provisions of the Act imposing ceiling on agricultural holdings and are therefore within the legislative competence of the State Legislature.
122. In State of Bihar v. Umesh Jha, , the provisions of Section 4 (h) of the Bihar Land Reforms Act 1950 were challenged, which conferred power on the Collector to decide wne-ther transfer was made before 1946 or thereafter, on the ground that the said section infringed the fundamental rights under Articles 14. 19 and 31, and was not saved by Article 31-A of the Constitution. Subba Rao, J. (as he then was) speaking for the Court, observed as follows:--
"Section 4 (h) is an integral part of the Act, and taken out of the Act it can only operate in vacuum. The object of the Section is to offset the anticipatory attempts made by landlords to defeat the provisions of the Act."
123. Again his Lordship observed:
"That apart, the section is a part of the Act designed to extinguish or modify the rights in an estate, and the power conferred on a Collector to cancel a transfer of any land in an estate is only to prevent fraud and to achieve effectively the object of the Act."
124. The aforesaid observations apply with equal force to the provisions of Section 7 (3) of the Act which provides for ignoring conversions made with a view to avoid or defeat the object of the law relating to reduction in the ceiling on agricultural holdings.
125. In Pritam Singh v. State of Punjab. , the provisions of Section 32-FF of the Pepsu. Tenancy and Agricultural Lands Act (13 of 1955) as amended in 1959 were challenged as unconstitutional. Section 32-FF reads as follows:--
"Save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance held by a small landowner not being a relation as prescribed of the person making the transfer or disposition of land, for consideration upto an area which with or without the area owned or held by him does not in aggregate exceed the permissible limit, no transfer or other disposition of land effected after 21st August. 1956, shall affect the right of the State Government under this Act to the surplus area to which it would be entitled but for such transfer or disposition."
126. It was contended before the Supreme Court that land validly transferred after 21-8-1956 was added to the transferor's land for the purpose of ascertaining the ceiling by virtue of the provisions of Section 32-FF and that the said section offended the provisions of the second proviso to Article 31-A of the Constitution. His Lordship Chief Justice Subba Rao, delivering the judgment of the Court held the said section to be valid. The learned Chief Justice observed in paragraph 12 as follows:--
"The proposal to introduce the said bill must have caused apprehension in the minds of the landowners that they would lose the lands above the permissible area and naturally they must have transferred their lands in favour of their relatives. Section 32-FF was added to frustrate such devices and to make the enforcement of the Act really effective-Under the said Section such a transfer made after August, 21. 1956, shall not affect the rights of the State Government under the Act to the surplus area to which it would be entitled but for such transfer. Between the transferor and the transferee the transfer would be Rood, but it would not be effective against the State Government. That is to say for ascertaining the surplus area the land transferred would be included in the transferor's land. Out of the total extent, the land above the ceiling, that is the permissible limit, would be the surplus land. The Legislature certainly is competent to make such a law. The validity of such a provision may perhaps be questioned under certain circumstances on the ground that it is an unreasonable restriction within the meaning of Article 19 (2) of the Constitution. But that is not open to the petitioner as the amending Act giving retrospective operation relates to an "estate". Therefore. Article 31-A operates as a bar against raising any such question. We therefore, hold that Section 32-FF is valid and as the land acquired is admittedly above the ceiling, the second proviso to Article 31-A has no application."
Section 7 (3) of the Act is also a legislative device introduced by the legislature for rendering ineffective conversions of agricultural land made with a view to avoiding or defeating the provisions of the ceiling law. This provision is therefore made in aid of the main object of the Act and is within the competence of the State legislature.
127. Another contention is raised by Sri K. Kameswara Raju, that the provisions of Section 7 (3) read with Section 3 (j) of the Act in so far as they are sought to be applied to the lands converted into salt pans are repugnant to the Central Excises and Salt Act.
128. But there is no merit in this submission. As already held by us the pith and substance of the Act is land covered by Entry 18, List II and the impugned provision is ancillary and incidental to the main provisions of the Act, A similar contention was negatived by a Division Bench of this Court in Gayatri Salt Works v. Govt. of Andhra Pradesh, . In that case, the petitioners who were carrying on business of salt production challenged the provisions of the Andhra Pradesh Lands (Prohibition of Alienation) Act, 1972, firstly on the ground that the Act was beyond the legislative competence of the State Legislature and secondly on the ground that the definition of land in Section 3 (c) of the said Act in so far as it sought to include lands used for manufacture of salt, was repugnant to the Central Excises and Salt Act, 1944.
129. Both the contentions were repelled by a Division Bench of this Court consisting of Kuppuswamy, J., and one of us, Shiv Shanker, J. So far as the first point is concerned, the learned Judges held that the definition of 'land' fell within Entry 18 of List II, and the Act was not ultra vires the powers of the State legislature. On the second point, the learned Judges held that the pith and substance of the said legislation was to prohibit transfer of agricultural lands, and that the Act fell squarely within Entry 18 of List II of the Seventh Schedule and was within the power of the State Legislature, and that even assuming that in some respects, the said Act affected the provisions of the Central Excises and Salt Act, it would not render the Act ultra vires the powers of the State Legislature and that an incidental encroachment on an entry in another list would not affect its validity. In the instant cases also, as we have already held, the pith and substance of the impugned Act is to introduce ceiling on agricultural holdings and acquire lands in excess of the ceiling limit and distribute the same to agricultural labourers and other poor persons, or transfer the same to the weaker sections of the people dependent on agriculture. The mere fact that the enforcement of the Act would affect to some exent the carrying on of the business of manufacture of salt, would not render the said provisions ultra vires. We therefore reject the contention of Sri K. Kameswara Raju that the provisions of Section 7 (3) read with Section 3 (i) of the Act are beyond the legislative competence of the State Legislature or that they are repugnant to the provisions of the Central Excises and Salt Act.
130. The next contention urged by all the learned counsel for the petitioners is that the definitions of 'family Unit' in Section 3 (f) of 'holding' in Section 3 (i) of 'owner' in Section 3 (n) of 'person' In Section 3 (o) and the provisions of Section 4 (1) fixing ceiling area for a family unit, Section 7 ignoring transfers of land, and dissolutions of marriages and adoptions made on or after 24-1-1971 and deeming lands converted into non-agricultural lands within a period of five years before the notified date as agricultural lands on the notified date, the provisions relating to declaration under Section 8, surrender of land under Section 10 and vesting of land under Section 11 all offend the second proviso to Clause (1) of Article 31-A of the Constitution. 131. The contention of Sri P. A. Chowdary was that the Constitution recognised only an individual and not a group of individuals or persons, that Article 31-A (1) second proviso contemplates legislation only with respect to a 'person' and not a group of individuals and that the expression 'a person' occurring in Article 31-A, applies only to a single natural person or juristic person known to law like a Hindu undivided family or other family unit known to the personal law or a firm or a Corporation or association of individuals, and that the legislature has no power to create an artificial family unit by clubbing or grouping a few members of the family, that any measure of agrarian reform can be made only to break up the holdings in the hands of the family or families or body of individuals but not the holdings in the hands of an individual person, and that the properties of several individuals could not be aggregated or clubbed together for the purpose of fixing the ceiling limit and that such a device adopted by the legislature would have the effect of defeating the provisions of the second proviso to Article 31-A (1) of the Constitution.
132. Sri M. Natesan and Sri K. Kameswara Raju submitted that under the second proviso to Article 31-A (1) any law made with respect to ceiling on agricultural holdings, and acquisition of the said lands over the ceiling limit, should be made only with reference to the individual as a unit and not with reference to an artificial unit like the family unit. The learned counsel submitted that by reason of the artificial definition of a family unit in the Act, the land held by an individual member of the family unit which is below the ceiling limit and under his personal cultivation has to be surrendered as surplus by aggregating the individual holdings of each member of the family, that the members of the family unit have no unity of title or possession or enjoyment, that the inclusion of the artificial family in the expression 'person' is unknown to law, that the Act having fixed a ceiling for an individual under Section 4 (3) of the Act, the same should have been ap-plied even to an individual who is a member of the family unit, and that the definition of a family unit is therefore ultra vires the powers of the State Legislature as it contravenes the provisions of the second proviso to Article 31-A (1) of the Constitution.
133. Sri G. R. Subbarayan. contended that the definition of 'holding' in Sec. 3 (i) read with the explanation and the provisions of Section 10 (5) (ii) and Section 7 (1) of the Act which ignores the alienations made on or after 24-1-1971 and includes the same within the holding of a person for the purpose of computing the ceiling area, have the effect of taking away the lands from a person which are within the ceiling limit and which are under his personal cultivation and therefore offend Clause (1) of the second proviso to Article 31-A of the Constitution.
134. Sri T. Anantha Babu, contended that the concept of an individual's right is the very basis of a democratic way of life, that any legislation made with respect to ceiling on agricultural holding, should regulate the rights of an individual, that the definition of a family unit has the effect of destroying the legal identity of the individual, that the definition of 'family unit' creates an artificial person unknown to law, that the surrender of land is not by an individual but by the family unit and that the Act does not fix any ceiling limit for an individual who is a member of the family unit, and therefore the definition of 'family unit' offends the second proviso to Clause (1) of Article 31-A of the Constitution.
135. Sri Soli Sohrabji, contended that the definition of 'family unit' is beyond the legislative competence of the State Legislature and contravenes the definition of 'person' in Section 3 (42) of the General Clauses Act read with the provisions of the second proviso to Clause (1) of Article 31-A of the Constitution.
136. But there is no merit in any of the submissions of the learned counsel. So far as the concept of the individual is concerned, the Act which relates to agrarian reform, deals with the individual's rights whether he is a member of the family unit or not. For the purpose of imposing the ceiling, the legislature thought fit to adopt different devices for fixing the ceiling limit with regard to the lands held by the various persons as defined in the Act. It is competent for the legislature to define a person in the Act and create an artificial unit. The definition of a 'person' in General Clauses Act would not restrict the powers of the State Legislature to define 'a person' and adopt a meaning different from or in excess of the ordinary acceptation of the word or as defined in the General Clauses Act.
137. In Inder Singh v. State of Punjab, , it was contended that under Hindu Law every coparcener in a Hindu undivided family acquires a right in the property of such coparcenary on birth and is entitled to a right of joint possession and enjoyment of its entire property, that Section 32-KK deprived such a coparcener of his right of property in that that it took away the rights of the descendants of the land owner to claim for themselves the permissible area and vest them in the head of the family alone so that there was not only an infringement of the right to hold property under Article 19 (1) (f) but also discrimination in favour of the head of the family infringing thereby Article 14. It was also contended that the said Section infringed the provisions of Articles 31 and 15 (1) of the Constitution. Section 32-KK the validity of which was challenged, is as follows:
"Notwithstanding anything contained in this Act or in any other law for the time being in force.
(a) where, immediately before the commencement of this Act a landowner and his descendants constitute a Hindu undivided family, the land owned by such family shall, for the purposes of this Act, be deemed to be the land of that land owner and no descendant shall, as member of such family, be entitled to claim that in respect of his share of such land he is a landowner in his own right."
138. Their Lordships upheld the validity of the said section though it created a fiction whereby the land owned by the Hindu undivided family was deemed to be the land of the landowner. Their Lordships observed that the fiction was enacted for a limited purpose of the Act that the result of the fiction was that no descendant as a member of such family would be entitled to claim that in respect of his share, he was landowner in his own right and that the section would adversely affect the rights of the descendants of a landowner.
139. Their Lordships further observed:
"It (Section 32-KK) treats such a family as one unit equating the landowner and his descendants with an individual landowner depriving by such equation the descendant of the right to hold a ceiling area for himself."
140. Their Lordships came to the conclusion that such a provision prima facie infringed Article 19 (1) (f) and Article 31 and would be hit by Article 13. But their Lordships held that the provisions of Section 32-KK were protected by Article 31-A of the Constitution. The learned Judges also came to the conclusion that the said section was one relating to agrarian reform and did not affect any change in the rights of the descendants as members of a Hindu undivided family or in the relationship of the family inter se except to the extent of depriving the descendants of their right to claim the ceiling area for each of them.
141. In Jagannath v. Authorised Officer, Land Reforms, Madurai. a contention was raised that the lands of two persons could not be clubbed for fixing the ceiling area. But that contention was repelled.
142. In Hariprasad v. A. D. Dive-kar. AIR 1957 SC 121, it was held that the artificial definition might include a meaning different from or in excess of the ordinary acceptation of the word which was the subject of definition.
143. In view of the aforesaid rulings, we cannot accept the contention that the State Legislature lacks competence to define a person so as to include an artificial family like the 'family unit' for the purpose of the Act. A similar view was taken in Dayamaya Debi v. State of West Bengal, (1974) 78 Cal WN 639 and in Bhaskar v. State. .
144. We are therefore unable to agree with the submission of the learned counsel for the petitioners that the definitions of a 'family unit' and 'person' in the Act, offend the provisions of the second proviso to Clause (1) of Article 31-A of the Constitution.
145. The learned counsel for the petitioners relied upon the decision of a Full Bench of the High Court of Punjab and Haryana in Sucha Singh v. State, AIR 1974 punj & Har 162 (FB). In that case, the provisions of Section 3 (101 defining a person in so far as it includes family as denned in the Act and the provisions of Section 4 fixing the ceiling area, were challenged as violative of the second proviso to Article 31-A (11 of the Constitution. 146. Section 3 (4) defines the 'family' in relation to a person as meaning the person, the wife or husband, as the case may be, of such person and his or her minor children, other than married minor daughters.
147. 'Person' was defined in Section 3 (10) as including a company, family, association or other body of individuals, whether incorporated or not, and any institution capable of holding property.
148. Section 4 (4) of the said Act which prescribed the method of computation of the ceiling area, reads as follows:--
"4. (4) (a) Where a person is a member of a registered co-operative farming society, his share in the land held by such society together with his other land, if any, or if such person is a member of a family, together with the land held by every member of the family shall be taken into account for determining the permissible area;
(b) where a person is a member of family, the land held by such person together with the land held by every other member of the family, whether individually or jointly, shall be taken into account for determining the Permissible area."
149. The learned Judges came to the conclusion that the said provisions of the Act read with Rule 5 (4) of the Pun-nab Land Reforms Rules, 1973 enabled the husband or the wife or the eldest surviving member of the family, while making the selection and the other junior members by attaining adulthood or getting married, as the case may be could deprive the other members of the family of the area held by them at his or her own sweetwill, that such a provision could not be said to be in the interest of or by way of agricultural reform, and that it was the very negation thereof and could not be upheld as valid or constitutional. Secondly the learned Judges took the view that the provision for pooling together of the entire land held by the members of the family on the appointed day, out of which one permissible area in terms of Section 4 of the Act had to be selected, was violative' of the second proviso to Article 31-A (1), and that by an artificial definition, a 'family' could not be brought into existence retrospectively with reference to the appointed day, and by a fiction deemed to hold the land which was in fact, not held by it but was held individually by each of its members. The learned Judges concluded as follows:--
"The result of the impugned provision is the expropriation of the land of some members of the family as defined, although the land of each member so expropriated did not exceed the permissible area prescribed under the Act which, like any other person, he was entitled to continue to hold. If they were to be deprived of that area, a provision should have been made in the Act for paying them compensation at a rate not less than the market value of the land in accordance with the second proviso to Article 31-A (1) of the Constitution."
150. In that view, the learned Judges held that the expression 'person' in Section 3 (1) in so far as it included 'family' was unconstitutional and consequently the provisions of the Proviso to Sub-section (2) of Section 4 and Clause (1) of Sub-section (4) of Section 4 were also struck down.
151. With respect, we are unable to agree with the aforesaid view of the learned Judges. Firstly, the State Legislature is competent to create an artificial family unit for the purpose of fixing ceiling on agricultural holdings and secondly the second proviso to Article 31-A (1) would apply only to the lands within the ceiling limit fixed for the family unit under the ceiling Act; thirdly this decision does not take note of the decision of the Supreme Court in Inder Singh v. State of Punjab, already referred to. We are therefore unable to agree with the contention of the learned counsel for the petitioners that the definitions of 'family unit' and 'person' and the other impugned provisions of the Act offend the second proviso to Article 31-A (1) of the Constitution.
152. It is however contended for the petitioners that the provisions of Section 7 (1), Section 10 (5) (ii) read with the explanation to the definition of 'holding' in Section 3 (i) of the Act offend the provisions of the second proviso to Article 31-A (1) of the Constitution. The contention of the petitioners is that under Section 7, lands already transferred by a person prior to the coming into force of the Act, are deemed to be held by him for the purpose of computing the ceiling area. Similarly under Section 10 (5) (ii) read with the explanation to Section 3 (i) by including the land held by one person in one capacity and by another person in another capacity in the holding of both such persons, would result in depriving the person of the land held by him which is within the ceiling limit and under his personal cultivation and therefore offend the second proviso to Article 31-A (1) of the Constitution.
153. Support is sought for this submission from the decision of the Supreme Court in Kunjukutty v. State of Kerala, . In that case explanation to Section 85 (1) of the Kerala Land Reforms Act, was challenged as offending the second proviso to Article 31 (a) (i). Under the explanation subject to certain exceptions any land transferred by a person holding in excess of the ceiling area between certain dates, was to be regarded as held by the person for the purpose of fixine the extent of the land to be surrendered by him and such surrender was to be out of the land still held by him. The High Court of Kerala struck down the said provision as offending the second proviso to Article 31-A (1). The learned Judges held:
"If a fiction by which land not held by a person could be taken into account for the determination of the excess land to be surrendered by him, and he could be forced to surrender land actually held by him although it is within the ceiling limit without payment of the market value thereof, were permitted the proviso in question could easily be rendered nugatory. That would be to mock the proviso."
154. Their Lordships of the Supreme Court agreed with the view of the High Court and held as follows:--
"It is clear that by virtue of the second proviso to Article 31-A (1) land within the ceiling limit is expressly protected against acquisition by the State unless the law relating to such acquisition provides for compensation which is not less than its market value. No attempt was made to take the impugned explanation out of this constitutional inhibition. We therefore do not find any reason to differ from the conclusions of the High Court."
155. In view of this pronouncement of the Supreme Court, the learned Advocate-General conceded that the provisions of Section 7 or Section 10 (5) (ii) read with the explanation to Section 3 (i) of the Act might offend the second proviso to Article 31-A (1) of the Constitution.
156. The learned Advocate-General however submitted that even assuming that the provisions of the definition of 'family unit' or 'person' or 'holding' and the provisions of Sections 7 and 10 (5) (ii) of the Act offend the second proviso to Article 31-A (1) the said provisions are saved from challenge by reason of the protection given by Article 31-B by including the Act in the Ninth Schedule by the Thirty-fourth Constitution (Amendment) Act Article 31-B reads as follows:--
"31-B. Validation of certain Acts and Regulations: Without prejudice to the generality of the provisions contained in Article 31-A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to appeal or amend it continue in force."
157. This Article provides that no Act included in the Ninth Schedule or any of the provisions of such Act shall be deemed to be void or ever to have become void on the ground that such an Act or provision in the Act is inconsistent with or takes away or abridges any of the rights conferred by any of the provisions of Part III of the Constitution.
158. But it is contended by Sri P. A. Chowdary and Sri M Natesan, and Sri Soly Sohrebji, that Article 31-A is independent of Article 31-B in view of the opening words of Article 31-B "without prejudice to the generality of the provisions contained in Article 31-A", and secondly that the second proviso to Article 31-A (1) does not confer any right but it only constitutes a prohibition or an injunction against the State Legislature from making a law in contravention of the said proviso. The first point that the provisions of Articles 31-A and 31-B of the Constitution are independent of each other is no longer res Integra.
159. In State of Bihar v. Kameshwar Singh. it was observed by Paterdali Sastry. C. J.. as follows:--
"There is nothing in Article 31-B to indicate that the specific mention of certain statutes was only intended to illustrate the application of the general words of Article 31-A. The opening words of Article 31-B are only intended to make clear that Article 31-A should not be restricted in its application by reason of anything contained in Article 31-B and are in no way calculated to restrict the application of the letter article or of the enactments referred to therein to acquisition of "estates".
160. In Visheswar Rao v. State of Madhya Pradesh, . Mahajan, J. (as be then was) observed :
"Article 31-B specifically validates certain Acts mentioned in the Schedule despite the provisions of Article 31-A and is not illustrative of Article 31-A but stands independent of it."
161. In a later case in Jeejeebhoy v. Asst. Collector, Thana, , Subba Rao, C. J.. observed:--
"Article 31-B is not governed by Article 31-A and that Article 31-B is a constitutional device to place the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution."
162. The same view was taken by all the learned Judges' in Kesavananda's case . In view of this well-settled legal position, it follows that Article 31-B stands independent of Article 31-A and any act or any provision of the Act included in the Ninth-Schedule cannot be challenged as violating any provisions of Part III of the Constitution.
163. The second proviso to Article 31-A is a provision in Part III of the Constitution and is covered by Article 31-B and therefore the challenge to the Act on the ground of infringement of the provisions of Part III is precluded by reason of the provisions of Article 31-B. It is to get over this Constitutional immunity conferred by Article 31-B that the learned counsel took the extreme position that Article 31-A (1) second proviso does not confer a right but that it is only a constitutional prohibition imposed against the legislature.
164. But we are wholly unable to accede to this contention. A lot of argument was advanced based on the legislative history of the Constitutional amendments introducing the Articles 31-A and 31-B. But we do not think it necessary to go into the legislative history because it does not admit of any doubt that 2nd proviso to Article 31-A (1) confers a right and that it does not merely constitute a prohibition or an injunction. Firstly the second proviso to Article 31-A (1) is similar to Article 31 (2) with regard to payment of compensation for the land acquired. While Article 31 (2) confers e right to payment of 'amount' for the lands acquired, the second proviso to Article 31-A (1) provides for payment of compensation at not less then the market value for the lands acquired which are within the ceiling limit and under the personal cultivation of a person. It is not disputed nor can it be- disputed that Article 31 (2) confers a fundamental right and if so, the second proviso to Article 31-A (1) which provides for payment of compensation at not less that the market value, confers a higher right than Article 31 (2) after its amendment by the Twenty-fifth Amendment Act.
165. Sri P. A. Chowdary sought to contend that the second proviso to Article 31-A (1) as well as Article 14 do not confer rights but constitute a prohibition or an injunction against the power of the State Legislature. The contention of the learned counsel is that the power to legislate under Article 245 of the Constitution is subject to the other provisions of the Act and that any legislation which contravenes the provisions of Article 14, or the second proviso to Article 31-A (1) or for that matter any of the provisions in Part III, would be unconstitutional for want of legislative competence. Reliance is placed for this submission on the decision of the Supreme Court in Basheshar Nath v. Income-tax Commr., . No doubt it was held by their Lordships of the Supreme Court that Article 14 is an injunction to both the legislative as well as executive organs of the State and other subordinate authorities. But the learned Judges concluded as follows:
"Whatever breach of other fundamental right a person or a citizen may Or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred On him by this Constitutional mandate directed to the State."
166. These observations show that Article 14 confers a fundamental right on a person, though in another sense it may amount to an injunction prohibiting the Legislature and the executive organs from making any invidious or hostile discrimination.
167. In R. C. Cooper v. Union of India. the different forms of the fundamental rights were explained in paragraph 61 as follows:
"In dealing with the argument that Article 3l (2) is a complete code relating to infringement of the right to property by compulsory acquisition, and the validity of the law is not liable to be tested in the light of the reasonableness of the restrictions imposed thereby it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms. In some cases it is an express declaration of a guaranteed right; Articles 29 (1). 30 (1), 26 and 32; in others to ensure protection of individual rights they take specific forms of restrictions on State action-legislative or executive Articles 14, 15, 16, 20, 21, 22 (1), 27 and 28; in some others, it takes the form of a positive declaration and simultaneously enunciates the restriction thereon: Articles 19 (1) and 19 (2) to (6); in some cases, it arises as an implication from the delimitation of the authority of the State e.g.. Articles 31 (1) and 31 (2) in still others, it takes the form of a general prohibition against the State as well as others Articles 17, 23 and 24. The enunciation of rights either express or by implication does not follow the uniform pattern. But one thread runs through them; they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits. Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights- The guarantees delimit the protection of those rights in their allotted fields; they do not attempt to enunciate distinct rights."
168. In G. S. Chooramani v. State of U. P. , the learned Judges took the view that the second proviso to Article 31-A (1) confers a fresh fundamental right. The explanation to the Ninth Schedule added by the Constitution Seventeenth Amendment Act, 1964 expressly declared that any acquisition made under the Rajasthan Tenancy Act. 1955 in contravention of the second proviso to Clause (1) of Article 31-A shall, to the extent of the contravention, be void which also goes to show, unless, the operation of Article 31-B is expressly excluded. Article 31-B precludes challenge on the basis of the second proviso to Article 31-A (1) of the Constitution-169. In view of this clear legal position we are unable to agree with the contention of the petitioners that Article 14 or the second proviso to Article 31-A (1) does not confer a right. For the fore-going reasons, we hold that even assuming that some of the. impugned provisions of the Act offend the second proviso to Article 31-A (1) in view of the Constitutional protection conferred by Article 31-B the said provisions of the Act are constitutionally valid.
170. It is contended for the petitioners that Article 31-C applies only to laws relating to industrial sphere. For this contention support is sought from the observations of Ray, J. (as he then was) in Kesavananda's case . The observations relied on are in paragraph 1054 which are to the following effect:--
"Article 31-C substantially operates in the same manner in the industrial sphere as Article 31-A operates in the agrarian sphere. The problems are similar in nature though of different magnitude. The constitutional method adopted to solve the problem is similar. The Solicitor General is correct in summing up Article 31-C as an application of the principles underlying Articles 31 (4) and 31 (6) and Article 31-A to the sphere of industry."
171. But these observations cannot be read in isolation. Earlier in paragraph 1046 the learned Judge observed:--
"Article 31-C is inextricably bound up with Article 39 (bl and (c) because the purpose and the phraseology in both the Articles are essentially identical. The legislative efforts to implement Directive Principles in Article 39 (b) and (c) were set in motion in some States to achieve reforms in land law; Articles 31-A and 31-B were introduced by the Constitution First Amendment Act 1951. The main reason for introducing Articles 31-A and 31-B was to exclude the operation of Part III as a whole from those provisions the true relationship between Directive Principles in Part IV and the fundamental rights in Part III became clear. It was realised that though the liberty of individual was valuable it should not operate as an insurmountable barrier against the achievement of Directive Principles In Sajjan Singh case it was said that "the rights of society are made paramount and they are placed above those of the. individual." In the Bihar Land Reforms Act case, it was said that "a fresh outlook which placed the general interest of the community above the- interest of the individuals pervades over Constitution."
172. The fact that Articles 39 (b) and (c) were set in motion in some states to achieve reforms in land law and that Article 31-C is inextricably bound up with Article 39 (b) and (c) shows that Article 31-C is not confined to industrial sphere but it covers both the industrial as well as agrarian sphere. The legislation relating to land reforms is a device for bringing about radical alterations in property rights and economic obligations and aims at removal of concentration of wealth and distribution of means of production and material resources of the community. These objectives are contained in Article 39 (b) and (c) of the Constitution. It is to give protection to the laws giving effect to the policies in Article 39 (b) and (c) that Article 31-C has been introduced by the Constitution Twenty-fifth amendment Act the first part of which has been held to be valid in Kesavananda's case . We have therefore no hesitation in rejecting the contention of the petitioners that the impugned law is not entitled to the protection of Article 31-C of the Constitution.
173. Another contention urged by the petitioners is that the impugned Act cannot be given retrospective effect so as to take away the rights vested in the petitioners under the Andhra Pradesh (Ceilings on Agricultural Holdings) Act, 1961.
174. But it is not disputed that the Legislature is competent to repeal a law and take away the vested rights. The impugned Act by Section 30 not only repealed the 1961 Act but also provided that proceedings pending under the said Act shall abate. This clearly shows that the rights accrued under the 1961 Act, were intended to be taken away by the Act. The petitioners have not challenged the constitutional validity of Section 30 of the Act. The contention that the impugned Act has no retrospective effect so as to take away the vested rights under the 1961 Act is clearly devoid of any merit and has to be rejected.
175. It is contended that the definition of 'family unit' makes an invidious discrimination between an individual who is not a member of a 'family unit' and a minor who is a member of a 'family unit'. The contention is that an individual who is not a member of a 'family unit' can hold one standard holding, whereas all the five members of a 'family unit' put together are entitled to one standard holding and this amounts to a hostile and invidious discrimination. Similarly it is contended some of the other provisions of the Act including classification of lands and the amounts fixed for the surplus lands acquired are arbitrary and discriminatory and are violative of the rights conferred by Articles 14, 19 and 31 of the Constitution. This contention is no doubt supported by the decisions of the Supreme Court in K. Kunhikomal v. State of Kerala. and A.P. Krishnaswamy Naidu v State of Madras, . But this challenge on the basis of Articles 14, 19 and 31 is not available to the petitioners in view of the inclusion of the Act in the Ninth Schedule and the Constitutional immunity conferred by Article 31-B of the Constitution. Vide L. Jaganathe v. Authorised Officer, Land Reforms Madurai, .
176. It is contended by Sri K. Kameswara Raju, that the definition of 'family unit' violates the directive principles in Article 39 (a) and (f) of the Constitution as it deprives the members of the 'family unit' adequate means of livelihood and also results in moral or material abandonment of minors. But we do not find any merit in this submission nor is there any material to support this contention.
177. It is contended by some of the learned counsel for the petitioners that the provisions of the Act are unworkable and unjust, but we do not find any substance in this submission as it is not established that the provisions of the Act are unworkable, nor can they be struck down on the ground that they are unjust or unworkable.
178. The contention of Sri T. Anantha Babu that Explanation I (a) to Section 10 of the Act which provides for surrender of surplus lands by agreement of parties is unconstitutional as it amounts to abdication of a legislative function, is devoid of any merit. The said provision is within the legislative competence of the State Legislature and is a provision conferring a benefit on the persons who have to surrender land which is in excess of the ceiling area. This contention is not supported by any principle or authority, and is therefore rejected.
179. Sri K. Subrahmanya Reddi, Central Govt. standing counsel sought to raise a contention that the power of Parliament to amend the Constitution is plenary and is not subject to any limitations. But this is covered by the decision of the Supreme Court in Kesavananda's case, : there the majority of the learned Judges held that Article 368 of the Constitution does not enable Parliament to alter the basic structure or framework of the Constitution. This contention of the learned standing counsel for the Central Government has to be rejected.
180. We do not also find any merit in the contention of Sri P. A. Chow-dary that Kesavananda's case is not binding on this court as the ratio decidendi in the said decision is not discernible. In view of the provisions of Article 141 of the Constitution, the law declared by the Supreme Court is binding on all Courts within the territory of India. Hence this Court is bound by the aforesaid decision.
181. In Writ Petition No. 719 of 1975, an additional point is raised that the Andhra Pradesh Legislative assembly had passed a Resolution on 8-4-1972 under Article 252 (1) of the Constitution that the imposition of ceiling on urban immovable property and acquisition of such property in excess of the ceiling and all matters connected therewith or ancillary and incidental thereto, should be regulated in the state of Andhra Pradesh by Parliament by law and therefore the State Legislature had surrendered its legislative powers to Parliament on that subject and that the definition of the word 'land' in the impugned Act in so far as it include lands in Municipal limits is concerned, is beyond the legislative competence of the State Legislature. But this point can be decided by a Division Bench.
182. Thus all the contentions raised by the petitioners fail and the writ petitions except W. P. 719 of 1975 are dismissed with costs. Advocate's fee Rs. 150/- in each of the Writ Petitions to be shared by the State Government and the Union Government in the proportion of 2:1.
183. W. P. No. 719 of 1975 will be posted before a Division Bench for determining the additional point raised in the said Writ Petition.