Patna High Court
Dasu Khan And Ors. vs Mohan Bhagat And Ors. on 13 April, 1966
Equivalent citations: AIR1966PAT425, AIR 1966 PATNA 425, ILR 46 PAT 257 1966 BLJR 723, 1966 BLJR 723
JUDGMENT Narasimham, C.J.
1. These six petitions under Articles 226 and 227 of the Constitution raise a common question of law and hence they are dealt with in one judgment.
2. In 1948 the Bihai Legislature passed the Ranchi District Tana Bhagat Raiyats Agricultural Lands Restoration Act, 1947 (Bihar Act 2 of 1948) (hereinafter referred to as the Act) for the purpose of restoring the Tana Bhagat raiyats' lands in the district of Ranchi which were sold away in execution of decrees for arrears of rent in pursuance of the freedom movement launched by the Indian National Congress. Tana Bhagat raiyats were defined in Section 2 (1) of the Act as raiyats claiming the membership of an association commonly known as Tana Bhagats who defaulted in payment of rent for their lands in pursuance of the freedom movement launched by the Indian National Congress. The Act consisted of ten sections.
The most important section was Section 4 which provided for restoration to Tana Bhagats of the lands sold away for arrears of rent on their application to the Deputy Commissioner of Ranchi and on then depositing with him such sum as might be determined by him having regard to the amount for which the holding was sold to the auction-purchaser and compensation for improvements made by the purchaser after the date of his purchase. Section 5 conferred power on the Deputy Commissioner to direct restoration of possession to such Tana Bhagat raiyats, and Section 6 stated that the sum deposited by the Tana Bhagat shall be paid to the auction-purchaser or subsequent alienee. Section 7 provided for right of appeal to the superior revenue authorities. Section 8 barred the jurisdiction of the civil courts Section 9 conferred emergency powers on the Deputy Commissioner, and Section 10 dealt with the rule making power This Act was amended in 1951 by Bihai Act XVI of 1951 which received the assent of the President. The main change effected by this amending Act was the enlargement of the definition of Tana Bhagat omitting all references to aboriginals found in the 1948 Act. Apparently, the intention was that even non-aboriginal raiyats whose lands were sold away in consequence of their failure to pay rent of their holdings due to the freedom movement should get the benefit of the Act. There were also some minor alterations which need not be noticed here. In 1956, the Bihar Legislature made a more radical amendment to the Act by Bihar Act XVIII of 1956. The mam changes brought about by the amending Act of 1956 are as follows. The definition of Tana Bhagat was recast so us to avoid the necessity of preparation of A list of such Tana Bhagat raiyats by the Deputy Commissioner within the prescribed time.
The question whether a particular applicant is or is not a Tana Bhagat raiyat was required to be decided in each restoration proceeding on the basis of the facts established. Section 4 was completely recast and the Deputy Commissioner was given express power to direct restoration not only on the application by an aggrieved Tana Bhagat raiyat, but also on his own knowledge or on receipt of any information. But the main condition for restoration, namely, the deposit by the old raiyat of such sum as may be determined by the Deputy Commissioner having regard to the amount for which the holding was sold away for arrears of rent and adding the compensation for the improvements effected by the purchaser, was retained. There were some verbal alterations of preamble, title and Sections 2, 5, 6 and 10. Section 9 was completely omitted.
This amending Act of 1956 was also reserved for the consideration of the President and assented to by him on the 25th of July, 1956. In 1960, the Act was further amended by Bihar Act III of 1960. The main purpose of this amending Act of 1960 was to confer on Tana Bhagat raiyats a right to make a fresh application for restoration before the 31st of March, 1962 notwithstanding anything to the contrary contained in any decree 01 order of any court made prior to the date of commencement of this amending Act
3. The constitutional validity of the Act came up for consideration before a Bench of this court in 1958 and in Julius Oraon v. Mt. Saniarao, AIR 1958 Pat 519 that Bench held that the Act of 1948 was invalid inasmuch as it contravened the provisions of Section 299 of the Government of India Act, 1935. But their Lordships took special care to point out that they were not concerned with the effect of the amendments made by Bihar Act XVI of 1951 and by Bihar Act XVIII of 1956, because in the case before them the statute for consideration was the original unamended Act of 1948. Hence they refused to go into the question as to whether in consequence of the Constitution (Fourth Amendment) Act, 1955 the Act as amended in 1951 and in 1956 was revivified or revitalised.
4. This question has, however, become a vital issue at present. On behalf of the petitioners Mr. Choudhury urged that in view of the decision of the said Division Bench to the effect that the 1948 Act was invalid from its inception as it contravened Section 299 of the Government of India Act. it could not be revivified or revitalised by any amendment made to the Constitution. He rightly emphasised the well known principle that the doctrine of eclipse or cloud enunciated by their Lordships of the Supreme Court in Mahendra Lal Jaini v. State of U. P., AIR 1963 SC 1019 and other decisions cannot have application to a pre-constitution Act which was still-born and that it applied only to such pre-constitution Acts which were valid at the time when they were enacted but which became eclipsed on account of inconsistency with some of the fundamental rights guaranteed under the Constitution. Such Acts could be revitalised or revivified if by subsequent amendment to the Constitution the cloud or eclipse is removed.
Mr. Lalnarain Sinha for the State of Bihar quite properly did not challenge the correctness of this contention. But he urged that the amending Act of 1956 must, as a matter of construction, be held to be a complete re-enactment of the 1948 Act by the Legislature and that consequently that Act will get the protection of the constitutional amendments made to the fundamental rights specially the Constitution (Fourth Amendment) Act. 1955 recasting Article 31 of the Constitution. This is the most important question for consideration here. Is the amending Act of 1956, in essence, a re-enactment by the Legislature of the 1948 Act in-corporating the amendments ? The answer to this will depend on ascertaining the intention of the Legislature as may be gathered from the provisions of the amending Act and also from the statement of objects and reasons of the Bill which preceded the passing of the Act.
Before dealing with this subject, I may refer to the law as laid down in America and also in Britain. Crawford in his well known book on Statutory Construction, 1940 edition, at pages 172-173 has discussed the effect of an amendment on a patent statute specially when the parent statute is held to be unconstitutional. Though ordinarily an amending Act is not a new and independent statute, nevertheless in some instances it may be a law independent and complete in itself Even if the parent statute is held to be unconstitutional, there is authority for the view that "a statute unconstitional in its entirety, may be amended, provided the amendment qualifies as a complete and independent statue in and of itself" (page 173 Ibid.
The same idea is conveyed in Sutherland. Statutory Construction, third edition, volume 1. at pages 333-335. The learned author points out that there is a conflict of view in the various States of America, the majority of courts holding that if an unconstitutional Act is amended the main question for consideration by the court is ascertainment of the intention of the Legislature when the amending Act was passed. If it is evident "that the legislature did not intend their enforcement to be dependent on the continued legal existence of the original Act, the court will enforce the new provisions as an original Act" To quote the author at page 335: "Probably a majority of the courts have rejected the theory that an un constitutional act has no existence, at least for the purpose of amendment The constitutional act physically exists in the official statutes of the State and is there available for reference, and as it is only unenforceable the purported amendment is given effect. If the law as amended is constitutional, it will be enforced. The amendment need not be intelligible and complete on its subject although that is obviously desirable "
The learned author further says (page 337 Ibidi "The intent of the legislature in amending an unconstitutional act is just as easily ascertained as it is when it amends a valid act". The same idea is conveyed in Corpus Juris, Volume 59, at page 855 as follows: "The fact that a statute is entirely unconstitutional does not render it impossible of amendment and that an amendment of such a statute is valid where the statute purporting to make the amendment is independent and a complete expression of the legislative will in which case the reference to the unconstitutional statute will be considered as being purely for identification."
6. Thus the Amercian authority fully supports the view that even though the parent Act may be unconstitutional since its inception, it does not necessarily follow that it cannot be amended by the Legislature subsequently. The question ultimately depends on ascertaining the intention or will of the Legislature with a view to decide whether the reference to the unconstitutional parent Act in the amending Act is merely for the purpose of identification so that the amending Act when construed with the provisions of the parent Act referred to therein may be held to be a complete law on the subject. The taw in England also does not appear to be different.
In Halsbury's Laws of England, third edition, volume 36 at page 404, paragraph 611, it is stated: "Where a statute incorporates by reference the whole or any part of an earlier statute, the provisions so incorporated are in general to be construed as they would be if set out in full in the later statute" It is based on Lord Esher's following observation in In re, Wood's Estate; Ex parte, Commissioners of Works and Buildings, (1886) 31 Ch D 607 at p. 615: "If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you add those clauses in the later Act, you have no occasion to refer to the former Act at all"
6. Following these principles, the question for decision now is whether Bihar Act XVIII of 1956 is an expression of the legislative will or intent to re-enact completely the Act of 1948 subject to such modifications or omissions as have been made in the 1956 Act itself. It is true that when 1956 Act was passed the Legislature could not have anticipated that nearly two years later on 7-4-1958 a Bench of the Patna High Court would strike down the parent Act of 1948 as void ab initio. But if it could be reasonably inferred that the intention of the Legislature in passing the 1956 Act was to re-enact the old Act with the subsequent modifications and the reference to the 1948 Act in the amending Act of 1956 was purely for the purpose of identification so as to make the amendment intelligible irrespective of whether the Legislature thought that the parent Act was constitutional or unconstitutional then the A mending Act would for all purposes, be taken to be a new and self-contained law on the subject complete in itself. It constitutional validity will then have to be determined in the light of the constitutional provisions in force when the amending Act was passed by the Legislature.
7. In this connection, the legislative practice prevalent in India must be given due weight. This point has been dealt with in paragraph 11 of the judgment in Sankarsana Ramanuja Das v. State of Orissa, (S) AIR 1957 Orissa 96 at p. 99, where the distinction between the legislative practice in India regarding the drafting of amending Acts and the legislative practice in England has been brought out. That judgment was upheld on appeal by their Lordships of the Supreme Court in 1962 (3) SCR 250. Hence merely because the Legislature in India followed the established practice of drafting an amending Act by naming the omissions and insertions to be made to the parent Act, it does not necessarily follow that the Legislature did not intend the amending Act to be a complete law on the subject and as a re-enactment of the old Act subject to such modifications as may be made in the amending Act, The amending Act cannot stand isolated and must be held to have formed part of the parent Act after incorporating the amendments,
8. In the light of the aforesaid principle, I have no doubt that Bihar Act XVIII. though described as an amending Act, is in substance a complete re-enactment by the Legislature of the 1948 Act with the additions, insertions and omissions mentioned therein. The legislature could just as well have re-anacted all the provisions, but instead of doing so followed the well established legislative practice prevalent in India. But its intention is clearly established. As pointed out in the earlier paragraph, some of the amendments are of a drastic nature. The definition of Tana Bhagat was widened so as to avoid the necessity of the preparation of a list by the Deputy Commissioner. Section A was completely recast and re-drafted and additional power was conferred on the Deputy Commissioner to initiate proceeding for restoration merely on receipt of any information or on his own knowledge. The emergency power conferred on the Deputy Commissioner by Section 9 of the old Act was completely taken away Though the parent Act was pronounced to be unconstitutional and must, therefore, be assumed to have been still-born, nevertheless it was physically in existence in the statute book and hence the legislature when it passed the amending Act of 1956 could use it for reference and for drafting purposes
9. It is true that in the amending Act of 1956 there is not even a reference to Sections 7 and 8 of the 1948 Act which dealt with the, right of appeal and exclusion of jurisdiction of Civil Courts and High Courts. The other sections of the 1948 Act have been expressly referred to and the amendments made have been indicated, but Section 9 of the Old Act conferring emergency power on the collector has been expressly repealed The further question which arises is that when there is not even a references to Section 7 and 8 of the 1948 Act in the amending Act of 1966, will it be proper for the Court to hold that the Legislature intended that these two sections should also be re-enacted? I think such an inference necessarily follows from the action of the Legislature in expressly omitting Section 9 of the Old Act.
The express omission of Section 9 of the Old Act must lead to the reasonable inference that the other sections, namely, 7 and 8, were Intended to be kept intact without any alteration or amendment. They were not expressly referred to in the amending Act of 1956 because it was unnecessary. This view gets support from the observation of Douglas, J. in (James E.I Markham v. (Hartwell) Cabell (1945) 90 Law Ed 165 : 326 U. Section 404 at p. 411 : "On the contrary, the normal assumption is that where congress amends only one section of a law, leaving another untouched, the two were designed to function as parts of an integrated whole". I would, therefore, hold that Bihar Act XVIII of 1956 though described as an amending Act is a complete re-enactment of the 1948 Act with the additions and alterations Indicated therein including the re-enactment of Sections 7 and 8 and omitting Section 9. Hence the decision of this Court regarding the invalidity of the 1948 Act will not affect the validity of the 1956 Act which must be judged in the light of the provisions of the Constitution then in force.
10. It is true that in the 1956 Act also adequate or fair compensation is not provided for the purchasers of the holdings of Tana Bhagat raiyats. The Collector is given wide discretion to decide what is the amount payable to these purchasers having regard to the price that was paid at the time of the rent sale and compensation for subsequent improvements. But merely because the price payable to the present owners of these holdings is not adequate, the 1966 Act cannot be pronounced to be unconstitutional. Clause (2) of Article 81 of the Constitution has no application in view of the provisions of Clause 2 (A). That clause says that unless there is a transfer of ownership to the State there can be no question of compulsory acquisition or requisition even though a person may be deprived of his property. By the 1986 Act the property which was acquired by the auction-purchasers or sub-lequent alienees is re-transferred to the previous owners, the State not getting any interest in the same. The Deputy Commissioner is merely an agency for effecting such transfer. Clause 2 (A) has been inserted in Article 31 of the Constitution by the Constitution (Fourth Amendment) Act, 1965 which had come into force prior to the commencement of Bihar Act XVIII of 1956- Hence, that Act would get the full benefit of that amendment.
11. It was then contended by Mr. Chou-dhury for the petitioner that the 1966 Act contravened Article 19 (1) (f) of the Constitution and was not saved by Clause 6 of that Article. He relied very much on the observations of the Supreme Court in Kavalappara Kottarathil Kochutti v. States of Madras and Kerala, AIR 1060 SC 1080 where their Lordships held that Article 31 (1) of the Constitution does not exclude Article 19 (1) and that the word 'restriction' in Article 19 (6) would include total prohibition also. Hence, Mr. Choudhury urged that by completely taking away the rights of the present owners of property and transferring them to the previous owners for grossly Inadequate price, the former have been deprived of their property under Clause (1) of Article 81 and thereby the fundamental rights guaranteed by Article 19 (1) (f) have been infringed. Two arguments were advanced by the learned Advocate General against this contention. Firstly, it was urged that Article 31-A of the Constitution would save Bihar Act XVIII of 1956 from the effect of Article 19. My attention was specially drawn to the definition of 'estate' in Sub-Clause (a) of Clause (2) of Article 31-A as Including the right of a raiyat and it was further urged that by virtue of Sub-clause (a) of Clause (1) of Article 31-A the extinguishment or modification of the rights of a raiyat may get the protection of this Article even though there may be no acquisition by the State. In my opinion, however, Article 31-A will be of no help in view of the clear pronouncement of their Lordships in AIR 1960 SC 1080 to the effect that the scope of Article 31-A (notwithstanding the wide language used) must be limited to laws dealing with land reforms. Here, it cannot be said that the restoration of lands to persons who lost their rights on account of their failure to pay rent has anything to do with agrarian reforms. Hence, Article 81-A may not be applicable.
12. Secondly, it was urged that Clause (6) of Article 19 would save the 1956 Act. That clause expressly saves those laws which impose reasonable restrictions" in the interest of the general public". In AIR 1960 SC 1080 at p. 1104, paragraph 54, it was pointed out that the words 'in the interest of general public" in Clause (6) does not refer to the public of the whole of the Republic of India and it may in clude a limited class of persons in a limited area. Here, the original Act of 1948 as well as the amending Act of 1956 were passed in the interest of some raiyats who on account of their patriotic action during the course of freedom movement deliberately refused to pay rent and thus allowed their holdings to be sold away for arrears of rent and purchased by people less patriotic than themselves. The removal of the grievance of such class of raiyats would well be in public interest.
It cannot also be said that the restrictions are unreasonable. The auction-purchasers are not completely expropriated. They are given some compensation which is based on the price which they had actually paid when they had purchased the property and an additional sum for any improvement effected by them on the lands. It is true that they are not given the market price which the lands would have fetched on the date of restoration to the former raiyats, but this increase in price is due to various economic factors for which the new purchasers are not responsible. In any case, if the Legislature thought that a certain class of unpatriotic persons took undue advantage of the patriotism of the original raiyats of the lands and purchased the same in a rent sale and that, therefore, they should not get more than the original purchase money plus compensation for improvement effected, it cannot be said that such a view is unreasonable.
During their possession of the lands from the date of purchase till the date of restoration of possession to the old raiyats, they have been peacefully appropriating the usufruct from the lands. The statement of objects and reasons of the Bill which was introduced In 1947 (Bihar Gazette, parts IV and V, Volume VIII, (1947) shows that due to the fact that the leaders of the Congress were in jail and there was nobody to guide the Tana Bhagat of Ranchi district, they being associated with the Congress movement stopped payment of rent to the landlords with the result that their holdings were sold away for arrears of rent. Restoration of lands to people who by their misguided zeal and patriotic fervour lost the same is a matter of public interest. Bearing in mind these factors and also the essential fact that this is not a case of complete expropriation, I think the restrictions imposed by the 1956 Act are reasonable restrictions in the interest of the general public and consequently the Act is saved by Clause 5 of Article 19.
13. I may now refer to another point. Both the 1951 amending Act and the 1956 amending Act were assented to by the President. The reasons already given for showing that the 1956 Act is practically a re-enactment of the old law would apply with equal force so far as 1951 amending Act is concerned. The 1951 amending Act must be, therefore, deemed to be a re-enactment of the 1948 Act with the alterations indicated therein It is true that prior to the commencement of the Constitution (Fourth Amendment) Act, 1955, there was some doubt as to whether acquisition referred to in Clause (2) of Article 31 of the Constitution would include extinguishment of the rights of a person in his property and the transfer of those rights to another person by the operation of law.
Hence, even if it be assumed that the 1951 Act became invalid as being inconsistent with Clause (2) of Article 31 of the Constitution as it stood then, it does not affect the validity of the 1956 Act The reference in the 1956 Act to the 1948 Act as amended by the 1951 Anf must be taken to be solely for the purpose of identification. But when the Act was amended in 1960 by Bihar Act III of 1960, the President's assent was not taken though as already point ed out Bihar Act III of 1960 conferred a fresh right on the Tana Bhagats to apply for restoration notwithstanding the decision of any Courts to the contrary Apparently this amend ment was made in view of the decision of the Bench of this Court in AIR 1958 Pat 510 holding the 1948 Act to be invalid. It was urged that the 1960 amending Act was inconsistent with the provisions of the Code of Civil Procedure (Entry 13 of List III) and as it was not assented to by the President, it cannot be saved by Article 264 (2) of the Constitution. This argument, however, is without substance. The pith and substance of the amending Act, should be considered with a view to decide in which entry in the three lists it falls (see Prafulla Kumar Mukherji v. Bank of Commerce Ltd. Khulna, AIR 1947 PC 80, Megh Raj v. Allah Rakhia, AIR 1947 PC 72, and Jankinath Roy v. State of Bihar, AIR 1953 Pat 105. The 1960 amendment is also a law dealing with the rights in or over land as mentioned in entry 18 of List II which is exclusively a State subject, and merely because it would affect the decrees already passed, it cannot be said in pith and substance to be a law affecting the Code of Civil Procedure. Hence Article 264 of the Constitution is not attracted.
14. For these reasons, I find no constitutional infirmity in the action taken by the revenue authorities concerned in directing restoration of possession to the Tana Bhagat raiyats. Bihar Act XVIII of 1966 must, as a matter of construction, be held to be a re-enactment of Bihar Act II of 1948 along with the amendments made by Bihar Act XVI of 1961 subject to the modifications, insertions and omissions indicated in the 1956 Act. It is constitutionally valid and the subsequent amendment made to it by Bihar Act III of 1960 is also constitutionally valid. The petitions are all dismissed, but in the circumstances without costs.
G.N. Prasad, J.
15. I agree.