Patna High Court
Chait Ram vs Sikandar Choudhary on 16 November, 1967
Equivalent citations: AIR1968PAT337, 1968(16)BLJR103, AIR 1968 PATNA 337, ILR 47 PAT 142 1968 BLJR 103, 1968 BLJR 103
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Narasimham, C.J.
1. This is an appeal by the decree-holder against the appellate order of the 2nd Additional Subordinate-Judge, Sasaram, upholding the contention of the respondent judgment-debtor that his raiyati holding was not liable to sale in execution of the decree in view of the bar imposed by Section 49M (l)(b) of the Bihar Tenancy Act (hereinafter referred to as the Act).
2. It is admitted that the judgment-debtor is a Mallah by caste. It is also not denied that the property sought to be sold in execution of the decree is the raiyati holding of the judgment-debtor. On behalf of the latter, it was contended that, in exercise of the powers conferred by Explanation (3) to Section 49B of the Act, the Government of Bihar, in notification No. A/T-1015/55-1091-R., dated the 7th February, 1956, declared "Mallahs" to be socially and educationally backward. Hence, according to the counsel for the respondent, the raiyati interest of a Mallah iudgment-debtor was not liable to be sold in execution of any decree except as provided in Sub-section (2) of Section 49M, which, admittedly, has no application here. On behalf of the decree-holder, however, Mr. Rai contended that the above notification was unconstitutional as offending Clause (1) of Article 15 of the Constitution, and that it was not saved by Clause (4) of that Article. Mr. Rai further urged that the said notification would offend the fundamental rights guaranteed to the petitioner under Article 19(l)(f) also. But this point is concluded by a Bench decision of this Court in Bhawani Prasad Jaiswal v. Bikramjit Choudhury, 1962 BLJR 845, and, as the correctness of that decision was not challenged before us, it is unnecessary to discuss this point again. With respect, I would agree with the view taken in that decision.
3. A preliminary point was raised to the effect that the appellant was not entitled to rely on Article 15(1) of the Constitution, inasmuch as there is no discrimination against the appellant The impugned notification may amount to discrimination In favour of Mallahs as a caste; but it was urged that Clause (1) of Article 15 prohibited discrimination against a person solely on the ground of his caste, and did not prohibit any statutory provision in favour of a person on the ground of his caste. In rpply to this argument, however, it was contended by the appellant that the impugned notification discriminated against those castes who were not enumerated in it, and denied them protection of Section 49M of the Act while conferring the benefit of the same on the castes mentioned therein. Thus, a Iudgment-debtor, who was not described as one of the backward classes, was liable to have his raiyati holding sold away in execution of a decree; whereas a iudgment-debtor, who belonged to one of the castes enumerated in the notification, would obtain the benefit of his raiyati holding being exempt from sale in execution of a decree subject, of course, to the conditions and restrictions mentioned in Section 49M. As regards the right of the decree-holder to challenge the constitutionality of Section 49M, it was urged that, if he had obtained a decree against a non-Mallah, he would have been able to execute the decree in due course; whereas, by obtaining a decree against a Mallah, he was faced with the disability provided in Section 49M. Hence, though the impugned notification undoubtedly discriminated in favour pf the castes mentioned therein, nevertheless it is "law" which discriminated against the castes not mentioned therein solely on the ground of their caste, and it had the effect of unduly restricting the right of the decree-holder to execute his decree. This point is being fully dealt with by my learned brother Untwalia, J. I, however, thought it unnecessary to decide this point because, even if it be assumed that there was discrimination against the castes not mentioned in the notification, nevertheless I am satisfied that the law will be saved by Clause (4) of Article 15.
4. Hence, the sole question for consideration by this Full Bench is whether the aforesaid notification in its application to Section 49M of the Act is violative of Clause (1) of Article 15 of the Constitution, and whether it is saved by Clause (4) of that Article.
5. As the constitutional validity of the notification, dated the 7th February, 1956, is under challenge, I may quote the relevant extracts from the same;
"No. A/T-1015/55--1091-R. -- In exercise of the powers conferred by Explanation (3) to Section 49B of the Bihar Tenancy Act, 1885 (VIII of 1885), the Governor of Bihar is pleased to declare the classes of citizens in column 1 of the schedule below, who are residents of the areas specified in column 2 thereof, to be socially and educationally backward:
x x xx In the schedule, 51 classes were enumerated, and item 20 included "Mallah (including Surahiya)" amongst the backward Classes. Some of the classes are declared to be backward throughout the State of Bihar and some are declared to be backward only in certain areas specified in column 2 of the schedule. The Mallahs have been declared to be backward classes throughout the State of Bihar. Though, in the said notification, the expression "caste" is totally excluded and the persons enumerated in the schedule have been described as "classes of" citizens, nevertheless, if the various items of the schedule are carefully scrutinised, they will be found to refer to some of the well-known castes in the State of Bihar.
6. Though Clause (1) of Article 15 prohibits discrimination against any citizen only on the ground of caste, Clause (4) of that Article saves from the vice of discrimination any special provision made "for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes." The Scheduled Castes and Scheduled Tribes have been fully defined in the Constitution (see Articles 341 and 342), and. as there is no controversy about them, I need not refer to this part of Clause (4) of Article 15. Difficulty, however, arises as regards the various tests to be applied in deciding whether a class of citizens is socially and educationally backward. The only guidance provided in the said clause is that the class of citizens should be backward both socially and educationally. In Explanation (3) to Section 49B of the Act, the same idea has been conveyed by defining "backward classes" as referring to such classes of citizens as may be declared by the State Government by notification in the Official Gazette to be socially and educationally backward. Ordinarily, the decision of the State Government to the effect that a particular class or caste is socially and educationally backward will prevail subject, of course, to the right of a party to satisfy this Court that the test of backwardness adopted by the Government was based on irrational or irrelevant grounds.
7. We are concerned in this appeal solely with the classes or castes known as Mallahs. and it is, therefore, unnecessary to discuss whether the other classes mentioned in the impugned notification can also be held to be socially and educationally backward. So far as Mallahs are concerned, this court can take judicial notice of the notorious fact that they are both socially and educationally backward. There may be a few persons of that community who may be somewhat advanced socially and educationally but, as a class Mallahs are well known for their backwardness. Mr. Rai for the appellant could not furnish any material before us from which we could hold that Mallahs are not socially and educationally backward. No official report of competent persons or writings of sociologists or anthropologists has been filed to support such a contention. On the other hand, on behalf of the respondent, our attention was invited to several official gazetteers where the backwardness of Mallahs has been noticed. Thus, in the Shahabad District Gazetteer of Shri P. C. Roy Chaudhury, at page 265, it is mentioned;
"Fishermen as a class are very poor, illiterate and backward."
The various schemes taken up by the Goverment to uplift them have also been mentioned therein. Similarly, in the Darbhanga District Gazetteer of the same author, there is the following passage about Kewats and Mallahs:
"They are the boating and fishing, as well as agricultural castes but those engaged in the two former pursuits have a somewhat lower position in the social scale than the agricultural class. They are mainly found on both the sides of the rivers Kamala, Balan, Burhi, Gandak, etc. The incidence of literacy among them is very low." In the absence of any material furnished by the appellant and taking judicial notice of the facts, which are notorious, and the extracts from some of the district gazetteers mentioned above, it may be held that Mallahs as a class are socially and educationally very backward. Hence, the State Government's declaration of Mallahs as backward class cannot be said to be based on arbitrary or irrelevant grounds
8. Mr. Rai, however, relied on the well-known decision of their Lordships of the Supreme Court in M. R. Balaji v. State of Mysore, AIR 1963 S.C. 849, which was clarified in Heggade Janardhan Subbaraya v. State of Mvsore, AIR 1963 S.C. 702 and in R. Chitralekha v. State of Mysore, AIR 1964 S.C. 1823, and urged that a classification of a community as backward solely on considerations of caste is invalid. Here, the emphasis is on the words "based solely". To quote their Lordships in Balaji's case (AIR 1963 SC 649} at p. 660:
"We are satisfied that the classification of the socially backward classes of citizens made bv the State proceeds on the consideration only of their castes without regard to the other factors which are undoubtedly relevant."
The principle of this decision, however, cannot apply to those cases like the present one where, though the backward community is described conveniently by its caste name, nevertheless the fact that the community is socially and educationally backward is not challenged on any ground whatsoever, and is too notorious to admit of any controversy In such cases, the classification is not based solely on caste but solely on the fact that that community is indisputably backward both socially and educationally, but it is more conveniently described by its caste.
9. This principle will be clear if Balaji's case, AIR 1963 S.C. 649 is carefully scrutinised. The impugned notification classifying certain castes as backward was issued on the basis of a report submitted by a committee known as Nagan Gowda Committee appointed by the State of Mysore. That report was to the effect that the entire Lingayat community was social-
ly forward, and that all sections of Vok-kaligas castes, excluding Bhunts, wert socially backward. The Government, however, disregarded this report and declared Lingayats as a caste to be educationally backward mainly on the ground that the average of student population per thousand in that caste was slightly above, or very near, or just below the State average (Paragraphs 26 and 27 ibid). They were treated as socially also backward solely on the basis of their caste as will be clear from the following observation at page 660;
''It is true that in support of the inclusion of the Lingayats amongst the Backward Classes the order refers to some other factors, but neither the Report of the Nagan Gowda Committee nor the orders passed by the State Government on July 10, 1961 and July 31, 1962 afford any indication as to how any test other than that of the caste was applied in deciding the question."
Their Lordships pointed out that backwardness must be both socially and educationally for the purpose of Clause (2) of Article 15 and laid down certain tests to be applied in deciding whether a community can be called backward or not. Firstly, they recognised that caste may be a relevant factor (Paragraph 22 ibid), though it cannot be the sole criterion. Secondly, they pointed out (Paragraph 20) that backward classes, for the purpose of Article 15 (4), are "in the matter of their backwardness, comparable to Scheduled Castes and Scheduled Tribes". They also observed (Paragraph 23) that "Social backwardness is on the ultimate analysis the result of poverty to a very large extent", and that the classes of citizens who were deplorably poor automatically become socially backward. To quote their Lordships:
"It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens"
They further observed in paragraph 24:
"There are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. The place of habitation also plays not a minor part in determining the backwardness of a community of persons."
It is on the basis of these tests and other tests (which need not be exhaustively enumerated here) that their Lordships held that the classification by the Mvsore Government was based sofely on caste consideration, that it did not take into account other relevant factors and that some of the tests adopted by the Mysore Government, such as the student population ratio, etc., were not correct In Chitralekha's case, AIR 1964 S.C. 1823 also, the same aspect was emphasised by pointing out that, though the caste of a person may have some relevance in considering whether a group of citizens is backward or not, it should not be the sole or dominant criterion.
10. In my opinion, therefore, the principle of Balaji's case, AIR 1963 S.C. 649, as subsequently clarified and explained by their Lordships of the Supreme Court themselves, cannot possibly apply where caste is used solely to describe conveniently a class of citizens whose social and educational backwardness is notorious, and is not challenged by any reliable data. In this State, Mallahs are well known as fishermen and boatmen. They are not socially backward but literacy amongst them is very very low indeed. They satisfy both the tests of social backwardness and educational backwardness as laid down in Balaji's case, AIR 1963 SC 649, and the Government notification cannot, therefore, be struck down.
11. Mr. Rai then contended that the word "advancement", occurring in clausa (4} of Article 15 of the Constitution, must from the context be construed to be limited to social and educational advancement only, and that Section 49M, which seeks to protect the raiyati holding of Mallahs, cannot be justified as a provision for their social and educational advancement. This argument, though ingenious, cannot bear scrutiny. The word "advancement" in Clause (4) of Article 15 is not subject to any qualification, and on no principle of interpretation can it be said that from the context it, should be construed in a restrictive sense as meaning only social and educational advancement. Moreover, it is well known that the directive principles of Part IV of the Constitution can be taken into consideration in construing the provisions dealing with fundamental rights, specially as regards the reasonableness of the classification or restriction, as the case may be. Article 46 casts on the State the duty to "promote with special care the educational and economic interests of the weaker sections of the people,'' and to "protect them from social injustice and all forms of exploitation". This gives an indication as to what may be the nature of the advancement of backward classes for the purpose of Article 15 (4). Advancement may be in the social economic field, and it may also be for the purpose of protecting them from social injustice and all forms of exploitation It is well known that those classes who are socially and economically backward can be exploited by richer and educated classes, and unless some restriction on the sale of their land is imposed by the Legislature, they are likely to become landless serfs due to exploitation by the higher classes Restrictions on the alienations (either voluntary or through Court tale) of the lands of backward classes Scheduled Castes and Scheduled Tribes subject to certain well-defined conditions are well-known features of land tenure all over India, and it will be too late in the day for Mr. Rai to contend that the protection from Court sale of the raiyati holding of the backward classes provided in Section 49M of the Bihar Tenancy Act is not for the "advancement" of the backward classes as contemplated by Article 15 (4). I must, therefore, uphold the constitutional validity of Section 49M of the Bihar Tenancy Act read with the impugned notification in its application to Mallahs, whether they are described as a caste or as a class.
12. This appeal is, therefore, dismissed with costs; hearing fee Rs. 100.
Choudhary, J.
12a. I agree.
Untwalia, J.
13. I agree to the order proposed but for somewhat different reasons. In Kathi Raning Rawat v. State of Saurashtra, 1952 SCR 435 : (AIR 1952 SC 123), Patanjali Sastri, C. J. has said at page 442 (of SCR): (at pp. 125-126 of AIR):
"All legislative differentiation is not necessarily discriminatory. In fact, the word 'discrimination' does not occur in article 14. The expression 'discriminate against' isused in article 15 (1) and article 16 (2), and it means, according to the Oxford Dictionary, 'to make an adverse distinction with regard to; to distinguish unfavourably from others'. Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in Articles 15 and 16, it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under Article 14 is different. Equal protection claims under that article are examined with the presumption that the State action is reasonable and justified. This presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity, possess in making laws ouerat-ing differently as regards different groups of persons in order to give effect to its policies."
14. If it were to be held that the impugned notification giving protection to the Mallahs against sale of their raiyati holding in execution of a decree is a discrimination against the castes not mentioned therein, I am afraid, the discrimination and bias are based upon, and disclosed in, the impugned notification solely on the basis of caste declaring them without any further material or rationale as the classes of citizens to be socially and educationally backward. In that view of the matter, I find it difficult to make out a clear-cut point of distinction to save the notification from being hit by the principle of law enunciated by the Supreme Court in AIR 1963 SC 649. The notification "will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles:" Article 15 or 16. The State has placed no materials before us to show as to on what other materials or basis the various castes mentioned in the notification have been declared as classes of citizens to be socially and educationally backward, as laid down by the Supreme Court in Balaji's case, AIR 1963 SC 649. But, in my opinion, 1o give protection to the classes of people described by caste in the impugned notification, who are mostly and by and large backward and a weaker section of the society not only socially and educationally but economically too a fact of which judicial notice can be taken by any Judge conversant with their position in the State of Bihar is obviously not a discrimination against them within the meaning of Article 15 (1) of the Constitution; nor can it be characterised as a discrimination against other castes within the meaning of the said constitutional provision. Giving protection to a certain section of the society does not necessarily mean and lead to the conclusion that it is a discrimination against others. The general law is that in execution of a decree raiyati holding of all judgment-debtors can be sold; the bar has been imposed against the sale of the right of a raiyat who is a member of the Scheduled Tribes, Scheduled Castes or Backward Classes in his holding or any portion thereof. The members of the other castes are not being discriminated and put in any jeopardy in exercise of their right. They cannot claim that because the raiyati holding of a protected tenant cannot be sold it in a discrimination against them and attack on their right of not getting their property not sold as manifestly they have no such right.
15. In Baijnath Prasad Sah v. Ramphal Sahni, 1962 BLJR 110 : (AIR 1962 Pat 72) (FB) in regard to the vires of Section 49M of the Bihar Tenancy Act, I accepted the argument of the learned Government Advocate at page 153 that "a holder of a decree for realisation of money has no fundamental right to acquire the property of judgment-debtor, alienation or sale of which is prohibited by law"
I had further observed that "different considerations may arise if the holder of the decree is one holding a mortgage decree for sale".
Ramaswami, C. J., (as he then was), and myself had reiterated this view in 1962 BLJR 845. U. N. Sinha, J., in his note of dissent in the Full Bench decision of this Court in Ramdayal Sahu v. Hari Shankar Lal Sahu, 1967 BLJR 78 : (AIR 1968 Pat. 310) (FB), has fallen in line with this view. Misra, J.. however, in his majority judgment seems to have taken a contrary view with reference to the similar prohibition against the sale of a raiyati holding contained in Section 47 of the Chota Nagpur Tenancy Act. Even so, the protection Riven to a certain weaker section of the people in the State of Bihar describing them by caste, who are well known as such, is not an unreasonable restriction on the right of the holder of a decree for realisation of money. Under Section 47 of the Chota Nagpur Tenancy Act, the prohibition was too general and comprehensive to induce Misra, J., to hold it as a reasonable restriction. But here it is different. It is difficult to appreciate that a person who will enter into transactions with the class of people described as protected tenants with his eyes open in face of the law as engrafted in Section 49M of the Bihar Tenancy Act will later on turn round and say that he has got a fundamental right to get the raiyati holding of such a tenant sold in execution of his money decree, otherwise it encroaches upon his right to freedom of contract
16. But the position under Article 14 of the Constitution is different, One may sav that giving protection to one section of people is discrimination in the general sense of the term, as envisaged under this Article, although it may not fall within the species of the right of equality protected under Article 15 (1). I may repeat what Patanjali Sastri, C. J., has said in Kathi Raning Rawat's case. 1952 SCR 435 : (AIR 1952 SC 123):
"equal protection claims under that article are examined with the presumption that the State action is reasonable and justified", and "this presumption of constitutionality stems from the wide power of classification which the legislature must of necessity, possess in making laws operating differently ss regards different groups of persons in order to give effect to its policies."
It is in this background of testing the constitutional validity of the impugned notification with reference to Article 14 that I find myself in respectful agreement with the views expressed by my Lord the Chief Justice. The decree-holder has placed no material before us to show that Mallahs are not a weaker section of the people deserving special protection of the State against the sale of their raivati holding or that the notification is not within permissible classification founded on an intelligible differentia which distinguishes Mallahs and the other castes mentioned in the notification from others left out of the group or that the differentia has no rational relation to the object sought to be achieved by the notification issued under explanation (3) to Section 49B of the Bihar Tenancy Act. On the other hand, taking Judicial notice of the fact that Mallahs are a weaker section of the people who need special protection of the State, I would also uphold the constitutional validity of the impugned notification and Section 49M of the Bihar Tenancy Act.