Patna High Court
Ram Prasad Narayan Sahi And Ors. vs The State Of Bihar And Ors. on 3 January, 1952
Equivalent citations: AIR1952PAT194, AIR 1952 PATNA 194
JUDGMENT Ramaswami, J.
1. In this case the petitioners Sri Ram Prasad. Narayan Sahi and Sri Ramrekha Prasad Narayan Sahi have obtained a rule (falling-upon the State of Bihar and other respondents to show cause why a writ in the nature of mandamus should not be issued commanding them not to take any action under the Sathi Lands (Restoration) Act, 1950 (Bihar Act XXXIV of 1950) and: not to interfere with the possession of the petitioners over 200 bighas of land of which they claim to have obtained an agricultural lease. Cause was shown against the rule by the Advocate General on behalf of the State of Bihar, Maharani Janki Kuar and the Collector of Champaran to whom notice of the rule was directed to be given.
2. The petitioners allege that on 19th July 1946 they made a representation to the Government of the State through the manager of the Bettiah Raj asking for settlement of 200 bighas of land preferably in Sathi farm or Materia farm and in addition 110 bighas of waste land known as Marhia Chaturbhujwar Rakhat. On the' next date Sri Rameshwar Singh, Manager of the Bettiah Estate wrote to the Collector of Champaran recommending that the settlement should be made without payment of any salami. The Board of Revenue recommended that settlement should be made on the condition that the petitioners paid half he current rate of salami. On 14th October 1946 the Government of the State wrote to the Board of Revenue approving of the proposal for settlement of 200 bighas of land on the usual rental and on payment of half the current rate of salami. On 20th of October 1946 the petitioners sent a cheque of Rs. 5,000/- to the manager of the Bettiah Estate on account of payment towards salami and rent for 1354 Pasli. The petitioners state that on 2nd November 1946 they obtained possession of the land though the 'bandobasti hisab farm was actually signed by Circle Officer and Sri Bamrekha Prasad Sahi on a subsequent date. The petitioners allege that under the Bihar Tenancy Act as amended they have acquired the status of occupancy raiyats and cannot be ejected except in execution of a decree obtained through the Court. The petitioners maintain that the Act is constitutionally invalid and pray that the rule nisi should be made absolute against the respondents.
3. In the counter-affidavit the respondents state that the Court of Wards recommended settlement of the land in favour 6f the petitioners though the Collector of Champaran and the Commissioner had opposed settlement on the ground that the assets of the estate should not be wasted by distributing them to the petitioners who merely claim distant relationship with Maharani Janki Kuev. The respondents assert that the settlement was illegal and void since the Court of Wards did not apply its mind to the question whether the settlement was for the benefit of the property or for the advantage of the Ward. On the contrary, the settlement was contrary to the interests of the Ward since the Sathi Lands were of high quality and had been in khas possession of the estate and were not lands upon which raiyats were to be inducted in the normal course of management.
The respondents state that after settlement was made there was great agitation among the tenants of the area and there was opposition on their part to the petitioners taking possession of the land, and in consequence there was a breach of peace and criminal cases were instituted. In paragraph 10 of the counter-affidavit the respondents state that the matter was brought to the notice of the Congress Working Committee who were of opinion that settlement of the land with the petitioners was against public interest. Thereafter the State Government made a request to the petitioners to restore the lands; but the petitioners refused. The respondents assert that the petitioners were not lawfully inducted as raiyats since settlement was void and illegal and they could not acquire the status of occupancy raiyat under the new amendment to the Bihar Tenancy Act.
4. In a supplementary affidavit the respondents assert that Sri Prajapati Mitra surrendered 45 bighas of land on 3rd July 1950, and the remaining land, viz., 15 bighas and odd on 25th July 1950. Annexure A to this affidavit is a letter by Praja-pati Misra addressed to the Manager, Bettiah Estate. In this letter Prajapati Misra states that there was an agitation by the tenants against the settlement of the Sathi Lands made with Sahi brothers, that he himself was associated with the agitation and that the Sahi brothers had instituted criminal cases against the tenants. The agitation did not cease but the matter was brought to the notice of Congress High Command at Delhi. Prajapati Misra states that since his motive was questioned, he decided to create a trust-deed on 1st April 1950, transferring the lane to a board of trustees, the object of the trust being to promote the cause of basic education.
5. The main question debated in this case is whether the Sathi Lands (Restoration.) Act, 1950 (Bihar Act XXXIV of 1950), is constitutionally valid.
6. The Act is entitled an Act to provide for the restoration of certain lands (commonly known as Sathi Lands) belonging to the Bettiah Wards Estate unlawfully settled in favour of certain individuals. The Act begins with a preamble:
"Whereas certain lands (commonly known as Sathi lands) belonging to the Wards Estate were settled in favour of certain individuals: Whereas such settlement is contrary to the provisions of the law; And whereas it is expedient to provide for the restoration of these lands to the Bettiah Wards Estate; It is hereby enacted as follows:
Section 2 (1) enacts:
"Notwithstanding anything contained in any law for the time being in force, the settlement of the Sathi lands (described in the Schedule) on behalf of the Beibtiah Wards Estate with Shri (Rai Bahadur) Ram Prasad Narayan Sahi and Shri Ram Rekha Prasad Narayan Sahi, sanctioned as per Bettiah Wards Estate Manager's order, dated the 18th November 1946, is declared to be null and void, and no party to the settlement or his successor-in-interest shall be deemed to have acquired any right or incurred any liability thereunder."
Section 2 (2) enacts that:
"the said lessees and their successor-in-interest shall quit possession of the said land from the date of commencement of this Act and if they fail to do so, the Collector of Champaran shall eject them and restore the lands to the possession of the Bettiah Wards Estate."
Section 2, Subjection (3) provides that:
"the Bettiah Wards Estate shall, en restoration to it of the lands pay to the said lessees the amount of salami money that the said lessees may have paid for the settlement of the lands and also any such substantial expenses as may have been incurred by the said lessees on the improvement of the said lands before the commencement of this Act."
Section 2, Sub-section (3) empowers the State Government to make rules to carry out the purposes of the Act. A schedule annexed to the Act gives detailed description of the land settled in favour of the petitioners.
7. Mr. Das argued at the outset that the impugned Act was not 'law' in the sense in which the legislature was competent to enact it. Learned Counsel founded his argument on a passage from Blackstone's Commentaries:
"Municipal law is properly defined to be a rule of civil conduct prescribed by superior power in a State commanding what is right and prohibiting what is wrong.....first, it is a rule, not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore, a particular Act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law; for the operation of this Act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law. But an Act to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity and universality, and therefore is properly a rule."
It was submitted by the learned Counsel that the declaration contained in the impugned Act was in the nature of a decree in respect of the petitioners' right and was not 'law' in strict sense. To put it in other words, the argument was that the declaration represents a rule in the nature of 'privilegia' as distinguished from 'leges.'
8. In my opinion, the argument is attractive but wholly unsound. Law in its legislative sense is of much wider import than the juristic notion of law as the command of a sovereign or as a rule laying down a general course of conduct. The term 'law' in Article 245 must be construed so as to include in its scope all legislative Acts enacted in the prescribed manner and form. Dicey observes:
"Parliament, habitually interferes, for the public advantage, with private rights. Indeed such interference has now become (greatly to the benefit of the community) so much a matter of course as hardly to excite remark, and few persons reflect what a sign this interference is of the supremacy of Parliament. The statute-book teems with Acts under which Parliament gives privileges or rights to particular persons or imposes particular duties or liabilities upon other persons" (Law of the Constitution, page 49.")
9. Maitland also points out that Parliament enacts a vast number of statutes which a jurist would class rather as privilegia than a legis --the statutes lay down no general rules but deal only with particular cases:
"Listen to the titles of a few of the public Acts; an Act for establishing a workhouse at Havering, an Act to enable the King to license a playhouse at Margate, an Act for erecting a house of correction in Middlesex, an Act for incorporating the Clyde Marine Society, and Act for paving the town of Cheltenham, an Act for widening the roads in the borough of Bodmin..... an Act for naturalizing Andreas Emmercich, an Act for enabling Cornelius Salvidge to take the surname of Tutton, an Act for rectifying mistakes in the marriage settlement of Lord and Lady Camelford, an Act to enable the guardians of William Prye to grant leases, an Act to dissolve the marriage between Jonathan Twiss and Francis Dorrill" (Constitutional History page 383.)
10. In 'EMPRESS v. BURAH', 3 Cal 63, Markby, J., held that Section 9 of Act XXII (22) of 1869 was invalid on the ground that "legislative Council was restricted to the exercise of functions which are properly legislative, that is, to the making of laws, which (to use Blackstone's expression) are rules of action prescribed by a superior to an inferior or of laws made in furtherance of those rules. The English Parliament is not so restricted. It is not only a legislative but a paramount sovereign body. The Indian legislative council cannot, in my opinion, do all that Parliament can do even when there is no express prohibition........The legislative council, when it merely grants permission to another person to legislate, does not make a law within the meaning of the Act from which it derives its authority."
In appeal the Judicial Committee rejected the argument that there was distinction between Parliament and the Indian legislature, or that the latter was restricted to the making of the laws in the sense defined by Blackstone while Parliament was not so restricted.
At page 193, the Judicial Committee stated:
"Their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and Indeed 'of the nature and principles of legislation.' The Indian Legislature has power expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation as large, and of the same nature, as those of Parliament itself" 'QUEEN v. BURAH', 5 Ind App 178.")
11. It was next objected that the entire Act was invalid since the legislature was exercising Judicial power. Mr, p. R. Das maintained that there was distinction between a judicial and a Legislative Act, that the one was determination of what the existing law is in relation to a transaction already had while the other is a predetermination of what the law shall be for the regulation of all future cases arising under it. In support of his contention Mr. P. R. Das referred to a passage from Cooley on Constitutional Limitations, Volume I, page 183:
"The legislative power extends only to the making of laws, and in it)s exercise it is limited and restrained by the paramount authority of the Federal and State Constitutions. It cannot directly reach the property or vested rights of the citizen by providing for their forfeiture or transfer to another, without trial and judgment in the Courts for to do so would be the exercise of a power which belongs to another branch of the government, and is forbidden to the legislative." (NEW-LAND v. MARSH', 19 Ill 383.") That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than any other attribute of Government." ERVINE'S APPEAL', 16 Pa St 255 at p. 266.
It was contended by Mr. P. R. Das, that in the present case the declaration contained in Section 2 (1) was in the nature of a decree in respect of the disputed land in favour of the Bettiah Estate; and that Section 2 (2) was in the nature of execution of a decree which only Courts are competent. It was argued that the entire Act was unconstitutional as being usurpation of judicial power.
12. The argument of Mr. P.R. Das proceeds upon a misconception. It is true that there is a distinction in principle between a legislative and a Judicial Act:
"A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future, and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power 'PRENTIS v. ATLANTIC COAST LINE CO.', (1908) 211 U S 210."
But there is no hard and fast line to be drawn between a Legislative and a Judicial Act. A law Which is restrospective or which declares or modifies existing rights may often have the effect of a judicial decree. The legislature may legislate to interfere with pending proceedings in law Courts. For instance, in the Irish Free State, legislation was passed to declare the meaning of the law, while an appeal was pending ('LYNHAM v. BUTLER', (1925) 2 Ir Rep 231). Also in Copyright (Preservation) Act, 1929 (No. 25 of 1929), Section 4 was included to affect the decision of the Judicial Committee in an appeal 'PERFORMING RIGHT SOCIETY, LTD. v. BRAY', (1930) A C 377.
It was argued for the appellant in that case that Section 4 was ultra vires. The Judicial Committee however held that the section was valid and must be given full effect in all Courts. Again, the Courts may interpret laws in one way, but the legislature may by a declaratory enactment lay down a different interpretation. In such a case the Court in exercise of its function has declared what it believes to be the law but legislature in effect declares the judicial interpretation to be unfounded and unwarranted. The legislature may also enact laws providing that suits which had been dismissed on a particular view of the law must be restored and re-tried. Two well-known instances are Section 31 (2) of the Indian Limitation Act, 1908, which provided for the restoration of suite dismissed on the ground that the twelve years period of limitation under Article 132 of the Limitation Act applied to suits for sale by holders of simple mortgagees and the Public Suits Validation Act (XI of 1932), which provided for the restoration of suits dismissed on a particular interpretation of Section 93 of the Code of Civil Procedure. Again, debt relief legislation in the various Indian States has provided for the reopening of decrees which Courts had passed inter partes.
13. It is beyond question that the Dominion legislatures are in the fullest sense sovereign within the ambit of their powers. Halsbury States:
"There is nothing to forbid confiscatory measures of any kind, and it is quite regular for a legislature to interfere with private property rights, such as Wills, or to provide a Code to secure a just treatment of dependents by their deceased husband or father. Though in the Irish Free State, Constitution rights of the subject are asserted, these can be reduced by ordinary legislation, for the Constitution can thus be amended. The legislature may legislate to interfere with pending proceedings in the law Courts, as well as to declare unsound a view of law taken by the Courts. 'Ex post facto' legislation is as a rule perfectly legal, and, though prohibited in the Irish Free State, the prohibition can be removed by a simple Act." (Halsbury Laws of England, Vol I, p. 86.)
14. A Colonial Legislature has also plenary authority and full discretion in its exercise; Halsbury states:
"A confirmed Act) of a local legislature lawfully constituted, whether in a settled or a conquered colony, has, as to matters within its competence and within the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by Imperial Legislation, & it may indemnify in respect of actions performed during a regime of material (sic.) law. It may authorise the detention of a politician deported from Egypt, though not guilty of any offence against local law. In the same way the legislature of a protectorate may sanction detention of a chief as a means of securing peace and order, and the legislature of a mandated territory is free to adopt measures of a very drastic character to secure public advantage as against private owners of water rights. Protectorate legislation may deal as is held best with property rights in land, and it is vain to argue against an Act that it is confiscatory or influenced by considerations of private interests as against public benefit." (Halsbury, Laws of England, Vol. I, p. 179.)
15. The American authorities do not afford assistance in this case for the constitutional position in India is quite different. In United States not merely the doctrine of separation of powers prevails but the Supreme Court has proceeded on the assumption that the Constitution was intended to reproduce the provisions that already existed in many of the State Constitutions 'positively forbidding the legislature from exercising Judicial Powers (See Willoughbys Constitution of the United States, page 1616). There are also certain Specific Limitations contained in the Federal and State Constitutions, such as, prohibition of depriving any person of life, liberty or property without due process of law (5th amendment) and the prohibition against laws impairing the obligation of contracts (Article 1, Section 10.) The practical result has been that retrospective or declaratory acts have usually been held void apart from the question whether judicial power has been invaded. In United States it has been held that legislative action cannot be made to retroact upon past controversies and reverse decisions which the Courts in exercise of their undoubted authority have made:
"This would not only be exercise of Judicial Power but) it would be its exercise in most objectionable and offensive form since the legislature is in effect Court of review to which parties may appeal when dissatisfied with the rulings of the Court."
In India, however, the Constitutional position is different. There is no doctrine or dogma of separation of the various powers. It is important to notice that our Constitution has not 'vested' judicial power or the legislative power in separate departments of the State. The Articles of our Constitution do not divide and establish areas of black and white.
16. In ABEYESEKERA v. JAY ATILAKE', (1932) A C 260, an Order in Council of 1925 made provision as to the legislative Council in Ceylon, but reserved to His Majesty power to revoke, alter or amend the order. The appellant brought an action to recover penalties under the order from the respondent, who he alleged had sat and voted after his seat had become vacant under its provisions by reason of his having a pecuniary interest in a contract with the Government. In 1928, after the action had been brought, but before its trial, an amending Order in Council was made providing that the action should be dismissed; it also amended, the order of 1923 so as to except the office held by the respondent from its operation. The Judicial Committee held that the order of 1928 was valid exercise of legislative power which His Majesty had reserved in himself.
At page 266, the Judicial Committee states:
"It appears to their Lordships that this was not an exercise of the royal prerogative in that sense. It is indeed the exercise by His Majesty, as sovereign, of the 'Legislative Powers' inherent in him by his title derived from conquest and cession of Ceylon, so far as he had not parted with any of them by acts of his own, and their Lordships are of opinion that it is plain from the Letters Patient and Order in Council already recited that His Majesty had expressly reserved to himself the right to do that which, by the order in Council now in question, he undoubtedly has done. Such right as the plaintiff may have had arose entirely out of the Order in Council of December 19, 1923, which was made by His Majesty in Council by virtue of the same authority as that which justifies the making of the Order in Council of November 1, 1928. Their Lordships are of opinion that, while it would not have been competent for His Majesty, by virtue of the royal prerogative alone, to make either order, he was perfectly competent and had sufficient right and title to make them both by virtue of the 'legislative' authority he had reserved to himself when parting with a portion of the right originally vested in him."
17. In 'BHAIRABENDBA NABAYAN v. DE-BENDRA NABAYAN', ILB (1942) 2 Cal 349, a suit had been brought for declaration of title to and possession of an impartible estate in Assam known as the Bijni Raj. The suit was contested by Jogendra and Bhairabendra who alleged that they were nearest male agnates and that the family was governed by Dayabagha School of Law as modified by certain custom. While the suit was pending Assam Act II of 1931 called Assam Bijni Succession Act was passed which declared that the defendant Jogendra shall be holder of the Raj and that upon his death Bhairabendra Narayan shall succeed. The trial Judge dismissed the suit on the ground that the Act was a bar and the plaintiff cannot succeed even if she had acquired any right under a will.
The High Court reversed the decision of the trial Judge holding that the Act did not bar a claim to the Bijni Raj even based upon an adverse possession, but only barred claims based upon an alleged right of succession. In appeail, the Judicial Committee set aside the judgment of the High Court holding that no adverse possession before 1931 had any effect to prevent Jogendra from taking the estate which the Act had vested in him. The Judicial Committee accordingly modified the decree of the High Court observing that a declaratory Act of a legislature, which enacted that property in an estate had vested in a particular person as from a definite date in the past was valid even against claims to the estate based upon adverse possession.
18. Upon principle and precedent, I am of opinion that the Act impugned in this case is 'law' within the meaning of Article 245 of the Constitution, that the legislature has not usurped judicial (functions in making the enactment.
19. An important part of the argument has reference to Article 14 of the Constitution. Mr. P.B. Das contended that the impugned Act was unconstitutional since it made discrimination against the petitioners. Learned Counsel maintained that there was violation of the guarantee of equal protection clause. In my opinion this argument is untenable. The guarantee of equal protection under Article 14 is not absolute. The clause does not prohibit legislative classification. Nor does it prohibit the legislature from enacting special laws to combat special evils. A classiftca-tion that takes account of the different degrees in which an evil is present must be upheld as reasonable and valid. Even legislation relating to one individual would not violate the equal protection clause, if there is no discrimination, in this context, it is important to remember the principle that the Court ought to make every possible presumption in favour of the constitutionality of the enactment:
"It must be presumed that legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its dis- criminations are based upon adequate grounds." MIDDLETON V. TEXAS POWER AND L. CO', (1919) 249 U S 152."
The onus is, therefore, on the petitioners to establish that the classification adopted by the legislature in the impugned Act "is arbitrary or unreasonable. In para. 9 of the affidavit, the petitioners allege that from 1948 to 1949 settlements of about 2,000 acres of land were made by the Bettiah Estate on the basis of 10 years rental and in some cases for good reasons at 5 years rental. The petitioners allege that the State Government or the State legislature have not repudiated the new settlements except the one made with the petitioners. In the counter-affidavit the respondents say that the State Government did take exception to the settlement of the land to Prajapati Misra which settlement also was unlawful. But Prajapati Misra willingly surrendered the lands settled with him and no legislation was therefore needed in his case. The allegation of the petitioners that about 2,000 acres of land were settled is vague for the names of the settlees are not furnished and there is no averment that the other settlements were unlawful or that there was Kisan agitation or apprehension of breach of peace in those cases.
The onus is on the petitioners to show that the equal protection clause has been violated but they have not furnished any reliable proof in support of their allegation. In my opinion tile attack on the legislation on the ground of violation of Article 14 fails. To adopt the language of Justice Holes:
It is established by repeated decisions that a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up & enumerating other instances to which it might have been applied equally well, so far as the Court can see. That is for the legislature to judge unless the case is very clear 'KEOKEE CONSOLIDATED COKE CO. V. TAYLOR', (1914) 234 U S 227."
20. The next contention is that the impugned Act violates Article 19 (1) (f) of the Constitution. It was argued by the learned counsel that after payment of Salami the petitioners obtained possession of the land and had been paying rent to the Bettiah Estates for several years. Learned Counsel pointed out that under the amended Section 21-A, Bihar Tenancy Act, the petitioners had acquired occupancy right, that the legislature had deprived the petitioners of their right by passing the impugned Act. But it was urged for the respondents that the settlement was null and void and that the petitioners had acquired no right or title to the land but were mere trespassers. The Advocate-General founded his argument on Section 18 of the Courts of Wards Act which states:
"The Court may sanction the giving of leases or farms of the whole or part of any property under Its charge, and may direct the mortgage or sale of any part of such property, and may direct the doing of all such other acts as it may judge to be most for the benefit of the property and the advantage of the ward."
The respondents assert that in making the lease in favour of the petitioners the Court of Wards did not apply its mind to the question whether the settlement was for the benefit of the property or for the advantage of the Ward Maharani Janki Kuar. The Advocate-General pointed out that the Collector and Commissioner had both opposed the settlement on the ground that it was against the interest of the ward's estate. The Advocate-General submitted that if the Court of Wards made colourable exercise of authority for an indirect purpose and not with the object of benefiting the ward it was not a real exercise of discretion and the transaction was void and illegal. The Advocate-General relied upon 'MOHAMMAD MUMTAZ ALI KHAN v. SAKHAWAT ALI KHAN', 28 Ind App 190 in which the Judicial Committee held that it was not within the power of a Court of Wards to make voluntary alienation in perpetuity of its ward's real estate and that the grant was ineffectual to pass title inasmuch as it was not proved to have been for the benefit of the estate and the advantage of the ward within the meaning of Section 172 of the Oudh Revenue Act, 1876.
To the same effect is 'KAMAKHYA NARAIN SINGH v. KARANPURA DEVELOPMENT CO. 29 Pat 19 in which the question arose regarding the validity of a prospecting license in respect of extensive coal lands lying within the estate of the appellant Raja accompanied by an agreement to lease. Upon examination of evidence the High Court held that the prospecting license in the case was executed by the Court of Wards in excess of its powers as it was done regardless of the advantage of the Ward and benefit to his property; and that the prospecting license was void and inoperative and that the Civil Court had complete jurisdiction to pass a decree in ejectment against the lessee.
21. But Mr. P.R. Das argued that under Section 18 it was nbt incumbent upon the Court of Wards to judge whether the lease would be for the benefit of the property or for the advantage of the ward. Learned counsel argued that in the two classes of cases (1) giving of leases or farms of the whole or part of any property under its charge, (2) mortgage or sale of any part of such property, the Court of Wards was not bound to consider whether the transaction would be for the benefit of the property or for the advantage of the Ward. Learned counsel argued that in the case of contract for sale or contract for mortgage or lease the section imposes a condition that the Court of Wards should judge whether it is for the benefit of the property or for ward's advantage but not in the cases when the Court of Wards makes an outright sale or mortgage or grants a lease or farm of the whole or part of the estate.
In my opinion the argument of Mr. Das is misconceived. Such a construction of Section 18 is unreasonable and would lead to sterliing (Sic) result. The Court of Wards stands in the same fiduciary capacity to its wards as other guardians, and is bound to do all that lies in its power in furtherance of the ward's interests. The Court of Wards is also like any other guardian responsible to its wards as trustee for the property entrusted to its care. I therefore think that the more correct interpretation is that in all the three classes of cases the Court of Wards must apply its mind to the question whether the transaction is for the benefit of the property or for the ward's advantage. In other words, the clause 'as it may judge to be most for the benefit of the property and the advantage of the Ward' governs not only the last clause but also the previous two clauses which deal with leases or farms of the whole or part of the estate and mortgage or sale of any part of the estate.
22. Mr. Das then contended that the Court of Wards did apply its mind to the question of advantage of the estate when the settlement was made with the petitioners. On behalf of the respondents the Advocate-General asserted that the settlement was not for the benefit of the estate, that the land settled was valuable and was intended to be cultivated khas on behalf of the estate. The Advocate-General referred to para. 8 of the counter-affidavit. Mr. Das complained that the respondents did not produce the letter of the Court of Wards sent to the State Government approving of the proposed settlement with the petitioners. The Advocate-General undertook to produce the letter but Mr. Das again objected that the respondents ought not to be allowed to produce evidence at a late stage. From the affidavits however it is apparent that the Collector and Commissioner had objected to the settlement of the land on the ground that the estate would be deprived of the valuable assets.
The letter of the Government does not suggest that settlement was made for the benefit of the estate or that Government or Court of Wards had considered the question. It is not possible to satisfactorily decide this point in these summary proceedings since I am not certain if all the relevant materials have been produced by the parties. But it is prima facie apparent that the Court of Wards did not apply its mind to the question of the benefit of the estate or the Ward's advantage. If this is correct the settlement of the land is illegal and void.
23. Mr. P. R. Das argued even if the petitioners acquired no interest on account of settlement they obtained possession of the land from the Bettiah estate and had been paying rent. Learned Counsel contended that the petitioners had acquired a proprietary rightwithin the meaning of Article 19(1)(f). Reliance was placed upon 'MINISTER OF STATE v. DALZIEL', 68 Common-W LR 261 and 'PERRY v. CLISSOLD', (1907) A C 73. But the Advocate-General argued that the Manager of the Bettiah estate had no authority to accept rent and the petitioners were mere trespassers. It is not necessary to investigate this question, for I am satisfied that this is not a proper case in which the High Court ought to issue any writ. It is plain that the petitioner's title depends upon disputed questions of fact which cannot be satisfactorily determined, in these summary proceedings. The remedy given, by Article 226 is an extraordinary one and can be invoked only in exceptional circumstances by those who have no alternative remedy by way of suit or otherwise. In the present, case, the settlement of the land which the petitioners claim appears prima facie illegal. If the allegation of the respondents is correct, the Court of Wards has committed a breach of trust in making the settlement. There is also no satisfactory reason any the petitioners should not institute a suit for obtaining the reliefs they seek.
24. In the special circumstances of the case I hold that the High Court ought not to grant any writ. In my opinion, the Rule must be discharged and the application must be dismissed with costs to the respondents. Hearing fee ten gold mohurs.
25. SARJOO PROS AD, j.: This application is under Article 226 of the Constitution of India wherein the petitioners have prayed for a writ to restrain the opposite party from taking any steps under "The Sathi Lands Restoration Act" (Bihar Act XXXIV of 1950), on the ground that the said Act is ultra vires the Bihar Legislature and is void and unconstitutional. The relevant facts of the case have been set out in the judgment of my learned brother, and it is unnecessary for me to repeat them.
26. Mr. P.R. Das has urged various constitutional points in support of this application. He contends that the impugned Act, is in violation of (i) Article 14, (ii) Article 19(1) (f) and (iii) Article 31(2) of the Constitution. He also contends that the so-called Act of the Legislature is not a 'law' at all, inasmuch as in enacting the same the Legislature has arrogated to itself the functions of the Judiciary and has perpetrated not a legislation but a decree of a Court of law with all its processes of execution. He submits that the legislation in question seeks to deprive the petitioners of their private rights without any public purpose and without providing for any compensation. Mr. Das has sought to develop these arguments in his own inimitable style, though, I must say, with somewhat stoic indifference to the difficulties of the Court in deciding the case --- an indifference which, in my opinion, has not minimized, if not actually contributed to those difficulties.
27. I confess that I was much impressed with the argument of Mr. Das that the impugned Act is not a 'Law' at all. An analysis of its provisions shows, that all that the Act purports to do is to declare the settlement of the Sathi lands with the petitioners null and void, and then to direct that if the petitioners fail to quit possession of the lands within a certain period, the Collector of Champaran shall be entitled to eject 'them and to restore the lands to the possession of the Bettiah Wards Estate. It is, therefore, in form and substance nothing but a decree of a Court which also prescribes the particular mode of execution of that decree. The question then is whether the Legislature was competent to enact such a legislation thereby encroaching upon and arrogating to itself all the functions of a Court of Law.
It is true that our Constitution-makers have not strictly followed the American pattern in having a water-tight demarcation of powers between the Legislature, the Executive and the Judiciary; but at the same time I feel that it would be wrong to interpret our constitution on the analogy of the British Constitution where the King in Parliament Is the fountain-head and repository of all powers. Such a claim cannot be put forward either on behalf of the President or on behalf of the Legislatures under the present Constitution of India. Article 245 or Article 248 of the Constitution which has of course, preserved residuary powers of legislation in the Indian Parliament, cannot be interpreted to mean that Parliament can by legislation usurp the functions of the Judiciary and take upon itself to discharge the normal functions of a Court of Justice.
I do not, of course, for a moment suggest that it is not open to Parliament to create by legislation new Courts and Tribunals or to take away from the Jurisdiction of a particular Court the trial of certain cases or class of cases. But what I do emphasise is that in every civilised country there is a well-known and marked distinction between the functions of the Legislature, the Executive and the Judiciary. The creation of the three organs of the State to exercise their respective functions is a common feature of most civilised governments. I cannot imagine that the framers of the Indian Constitution had completely ignored this distinction which is so essential for a stable and harmonious working of the governmental mechanism, especially in a country where the percentage of literacy is almost negligible, and where not even a minimum qualification has been fixed for tine members of the Legislature.
28. In this context, on behalf of the opposite party, strong reliance has been placed upon the decision of the Supreme Count of India on a reference made by the President of the Indian Republic under Article 143 of the Constitution in regard to the validity of the Delhi Laws Act (1912 etc.) 'IN RE, ART. 143, CONSTITUTION OP INDIA AND DELHI LAWS ACT (1912) etc','AIR (38) 1951 S C 332. The problem which the Supreme Court had to tackle in that case was whether the laws in question were void as delegated legislation. The case in question is hardly any authority on the point with which I am concerned at present. It may be assumed that by making the members of the cabinet responsible to the legislature, there was some kind of fusion of legislative and executive functions so as to permit conditional or ancillary legislations being delegated to the hands of appropriate executive authorities; but I do not find anything in the decisions of the various learned Judges in that case to lend countenance to the assumption that the Legislature under the Constitution of India was entitled to usurp and assume the functions of the Judiciary. Such an assumption may lead to conflicting and even chaotic results because the Legislature in that event might be held competent to direct a person to be hanged who has already been acquitted by a Court of law on a particular charge or snatch away the property of a citizen and give it to another in spite of the fact that Courts of law have pronounced to the contrary.
The guarantee of fundamental rights and the powers vouchsafed to the Supreme Court or for the matter of that to the High Courts under Articles 32 and 226 of the Constitution respectively are wholly inconsistent with any such supremacy of the Legislature. I have, therefore, great hesitation in accepting the position that no such distinction of functions of the Legislature and the Judiciary was envisaged and preserved by the present Constitution of India. For the present, I do not feel tempted to enter into further discussion of the matter, and I hold myself free to examine the problem on some other appropriate occasion.
29. I find that this application can be disposed of on a much narrower ground. I agree with my learned brother that this is not a proper case in which this Court should issue a writ. It has been repeatedly pointed out by this Court that although the powers of the Court to issue writs under Article 226 of the Constitution are very wide, the remedy provided therein must remain an extra-ordinary remedy to be used where ordinary legal process cannot give adequate and prompt relief; vide; 'BAGARAM v. STATE OP BIHAR', 29 Pat 491 (PB) and 'GOPESHWAR PROSAD SAHI v. STATE OP BIHAR', 30 Pat 735. I was myself a party to the latter decision where I fully examined the legal position. I pointed out then that there must be something in the nature of the case itself and in the facts and circumstances thereof to couple the power vouchsafed to us under Article 226 of the Constitution with a duty to exercise the same in order to compel us to give relief to the person concerned. The essential requirements in all such cases are (i) that the petitioner has some fundamental or legal right, (ii) that the said 'right' has been actually violated or there is an imminent threat to that right, and (iii) that the petitioner has either no other remedy available to him; or, even if there is such a remedy available, that remedy would not be equally prompt, adequate and efficacious; and in case he is left to that remedy, he is likely to suffer incalculable loss and harassment.
I am not satisfied 'prima facie' for the reasons already stated in the judgment of my learned brother that the petitioners have established a clear title or 'legal right' necessitating our interference under Article 226. There may be much strength in the contention of the learned Advocate General that the so-called settlement of the disputed lands with the petitioners was wholly void. I have no desire to prejudice the case of the petitioners in any subsequent litigation that may arise between the 'parties; but it is abundantly clear to me for the present that the petitioners' title or right, if any, depends upon disputed questions of fact which cannot be satisfactorily adjudicated in these summary proceedings.
30. I also do not accept the interpretation of Mr. P. R. Das in regard to the language of Section 18 of the Court of Wards Act. The argument, that in the case of a contract for sale, or a contract for mortgage or lease the section imposes a condition that the Court of Wards should consider whether it is for the benefit of the Ward but not so in cases where the Court of Wards actually effects a sale or mortgage of the property of the Ward, is on the face of it anomalous and untenable. Section 18 does not admit of such an interpretation, and I agree with my learned brother that on a true construction of the section the Court of Wards in all the above cases must apply its mind to the question whether the transaction is for the benefit of the Estate or to the advantage of the Ward.
31. The application accordingly fails and must be dismissed with costs as directed.