Kerala High Court
Krishna Pillai Govinda Pillai vs Sankara Pillai Govinda Pillai And Anr. on 23 December, 1970
Equivalent citations: AIR1971KER295, AIR 1971 KERALA 295, ILR (1971) 1 KER 398, 1971 KER LJ 221, 1971 KER LT 87
Author: K.K. Mathew
Bench: K.K. Mathew
JUDGMENT Gopalan Nambiyar, J.
1. This case has been placed before a Full Bench to consider the constitutional validity of Section 106 of the Kerala Land Reforms Act (Act 1 of 1964) as repealed and reenacted by Act 35 of 1969 -- the latter will be referred to, where necessary, as "the Act" and the former as "the main Act". The main Act itself has been included in the IX Schedule of the Constitution and is protected by Article 31-B and is therefore outside the plea of attack. Whatever we say in this judgment will therefore be applicable only to the section as re-enacted.
2. The suit out of which this Second Appeal arises was for recovery of about 25 cents of purayidom in Kottarakara belonging in jenm to a Namboodiri family and held thereunder by the plaintiff on a subordinate tenure. (Even if the land itself be not an estate within the meaning of Article 31-A of the Constitution the definition in Clause (2) (a) (i) of the article taking in only the janmam right and not the land itself, the rights of the plaintiff and the 1st Defendant in the land would, it seems clear, be rights in an estate within the meaning of the article having regard to Clause (2) (b) thereof.) It was originally leased by the plaintiff to the 1st Defendant by Ex. D-4 dated 18-2-1125 M. E. for a term of 5 years for running a saw mill. While holding under Ext. D-1, the 1st Defendant put up a shed for the purpose of the saw mill, and was conducting a saw mill in the said premises. Before the expiry of the term of Ext. D-4, a fresh lease of the plot was granted by the plaintiff to the 1st Defendant by Ext P-1 dated 5-6-1952 on the basis of which the suit was laid. No term was fixed in this document. An earlier suit on the document was dismissed by Ext. P-2 judgment as the lease under Ext. P-1 had not been terminated, and the present suit was laid after terminating the same by Ext. P-4 notice dated 13-4-1959. The 1st Defendant claimed that he was entitled to protection under Section 78 of (Kerala) Act 4 of 1961, which enacted a provision more or less to the same terms as Section 106 of the main Act. The trial court refused recovery of possession, and granted a decree for arrears of rent. By the time the appeal preferred by the plaintiff came on for hearing, Act 4 of 1961 had been declared unconstitutional. The appeal was therefore allowed and the plaintiff was granted a decree for recovery of possession and also for arrears of rent. The 1st Defendant has preferred this second appeal and claims immunity from eviction by reason of Section 106.
3. Section 106, as re-enacted reads:
"106. Special provisions relating to leases for commercial or industrial purposes--
(1) Notwithstanding anything contained in this Act, or in any other law, or in any contract or in any order or decree of court, where on any land leased for commercial or industrial purpose the lessee has constructed buildings for such commercial or industrial purpose before the 20th May, 1967, he shall not be liable to be evicted from such land, but shall be liable to pay rent under the contract of tenancy, and such rent shall be liable to be varied every twelve years.
Explanation-- For the purposes of this section--
(a) 'lessee' includes a legal representative or an assignee of the lessee: and
(b) "building" means a permanent or a temporary building and includes a shed.
1-A. The lessor or the lessee may apply to such authority as may be prescribed for varying the rent referred to in Sub-section (1), and thereupon such authority may, after taking into consideration such matters as may be prescribed and after giving the lessor and the lessee an opportunity of being heard, pass such orders on the application as it deems fit.
(2) If, between the 18th December 1957, and the date of commencement of this Act, any decree or order of court has been executed and any person dispossessed by delivery, such person shall, on application, before the Land Tribunal, be entitled to restoration of possession:
Provided that, before restoration, such person shall be liable to pay--
(i) the compensation paid by the landlord for any improvements in the land and subsisting at the time of restoration;
(ii) the compensation for any improvements effected subsequent to the delivery:
Provided further that he shall not be entitled to restoration if the property has passed on to the possession of a bona fide transferee for value.
(3) Nothing contained in Sub-section (1), Sub-section (1-A) and Sub-section (2) shall apply to lands owned or held by the Government of Kerala or a local authority."
The main changes introduced by the Act are: (1) that in Clause (i) of the section the date 20-5-1967 has been substituted for 18-12-1957; (2) An Explanation has been added to Clause (i), providing inter alia, by Sub-clause (b) thereof, that a "building" includes a "shed"; and (3) Sub-section (3) of the section has been newly added exempting lands owned or held by the Government of Kerala or a local authority from the provisions of the Sub-section (i) (a) and Sub-section (2) of the section.
4. The re-enacted section cannot receive the protection of Article 31-B of the Constitution, as the Act, unlike the main Act has not been included in the ninth schedule. But the lesser measure of protection afforded by Article 31-A has been claimed for it, by the learned Advocate-General who appeared on behalf of the State, and by Counsel for the appellant 1st Defendant. Counsel for the Respondent-plaintiff on the other hand contended that Article 31-A is unavailable as the legislative provision conferring protection upon leases granted for industrial and commercial purposes cannot be held to be a measure of agrarian reform or even a matter ancillary thereto. If the protection of the Article be thus unavailable. Counsel contended that the section was violative of the fundamental right under Article 19 (1) ff) to hold and to dispose of property, and was not saved as a reasonable restriction in the interests of the general public under Article 19 (5).
5. Can Section 106 of the Act, then, be saved as a measure of agrarian reform? We need not survey the entire gamut of the decisions beginning with Kochuni's case, (AIR 1967 SC 1080) and running through Ranjit Singh's case, (AIR 1965 SC 632) and Gulabbhai Vallabbhai Desai's Case, (AIR 1967 SC 1110) and other cases which have laid down that only a measure of agrarian reform can qualify for the protection under Article 31-A. Accepting that the concept of agrarian reform includes the raising of economic standards and bettering the rural health and social conditions, it should still be shown. -- to borrow the language of the Supreme Court in Ranjit Singh's case, AIR 1965 SC 632,--that the "general scheme of legislation is definitely agrarian reform, and under its provision something ancillary thereto in the interests of rural economy has to be undertaken to give full effect to the reforms". Viewed from this point of view, we think that the amended Section 106 is quite unconnected with agriculture or rural development, and cannot be regarded as ancillary to agrarian reform. We have paid due heed to the wisdom of the legislature in enacting this provision, to its awareness of the needs of the public and to its presumed duty and tendency to attune its measures to suit the public needs and the public welfare. We have taken note too, of the averments in paragraph 2 of the affidavit on behalf of the State, that the enactment of the provision in question was in the interests of the development and stability of rural economy in the State, and that it was the landless artisans and petty traders who have generally taken such lands on lease for commercial or industrial purposes and put up building thereon, mostly in the nature of sheds. But we cannot divorce these from matters of common knowledge and experience, that a number of these leases have been granted--and can certainly be granted--for erecting petrol bunks, or hotels and business houses, or that sites adjoining river banks have been--and can be, taken on lease for purposes of the timber floating trade. Side by side with these purely industrial and commercial operations of considerable magnitude, there may well be petty traders and village artisans also in possession as lessees of such site. But we find it difficult to hold that the section as such is calculated to promote the welfare of the latter category of persons rather than to feed the trade and promote the industrial potentialities of the former. And, as we shall show, we find no means by which we can restrict the operation of the section to the one category of leases for industrial and commercial purposes, and exclude its operation as to the other. Our inability to do these, stands hightened by the absence of any reference in the objects and reasons of the statute or its preamble, or the notes on clauses--to the extent and within the limits to which these are admissible, if admissible at all--that the provision in question was made to promote rural economy or as ancillary to agrarian reform. The provision as it stands may well savour of a measure for industrialisation rather than one of agrarian reform, or even the tertium quid of, what was stressed in the arguments, as, the development of agro-based industries.
6. We can hardly subscribe to the view that the constitutional validity of a statute or of a provision thereof, should depend on the individual facts and circumstances, disclosed in each case; and that accordingly, the provision under Section 106 must be pronounced constitutional and valid in a case where the lease in question subserves the purpose of promoting rural economy or can be regarded as ancillary to agrarian reform, and condemned as unconstitutional, where it cannot be regarded as subserving these purposes. The danger to the administration of justice and to the principles of constitutional interpretation alike, arising from the desire of Judges to do justice in each individual case appears fairly apparent. To borrow the language of the Supreme Court In Ramappa v. Bojjappa, (AIR 1963 SC 1633), such a method of interpretation would "inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a reproach which judicial process must constantly, and scrupulously endeavour to avoid". (See the Preface to Seervai's "Constitutional Law of India"). Nor, it seems to us, is it permissible in a case like the present to save a provision inherently unreasonable by administering it in a reasonable manner. For, as the Supreme Court observed in Collector of Customs v. N. Sampathu Chetty, (AIR 1962 SC 316):
"The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in Part III the Constitution does not pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements. In saying this we are not to be understood as laying down that a law which might operate harshly but still be constitutionally valid should be operated always with harshness or that reasonableness and justness ought not to guide the actual administration of such laws."
The above observations, rendered with respect to Article 14 of the Constitution appear apposite in the present context. We would therefore hold that Section 106 of the Act, cannot be protected by Article 31-A of the Constitution as a measure of agrarian reform or as a provision ancillary thereto.
7. We shall then proceed to con-cider whether the section involves violation of the fundamental right to hold and dispose of property; and if so, whether it can be saved under Article 19 (5) as a reasonable restriction in the interests of the general public. The rationale of the decision in Vajrapani Naidu v. New Theatres Carnatic Talkies Ltd., (AIR 1964 SC 1440), strongly pressed to sustain the principle of granting fixity of tenure to lessees of commercial sites, appears to us on close analysis, to be quite unhelpful. That case was concerned with the validity of Section 9 of the Madras City Tenants Protection Act 1922, and the scope of Section 12 thereof. Section 9 enabled a tenant to apply to the court for an order that the landlord shall sell the whole or part of the land for a price to be fixed by the court. Section 12 provided:
"Nothing contained in any contract made by a tenant shall take away or limit his rights under this act, provided, that nothing herein contained shall affect any stipulations made by the tenant in writing registered as to the erection of buildings in so far as they relate to buildings erected after the date of the contract."
The preamble to the Act itself recited that it was found necessary to give protection to tenants who, in the municipal towns and adjoining areas in the State of Madras have constructed buildings on others' land on the hope that they would not be evicted so long as they pay a fair rent for the land. There was material enough noticed by the Supreme Court, that in the wake of the First World War, consequent on the inflation and the growing rise in prices of land, many such tenants were sought to be evicted by the landlords, and the City Tenants Protection Act 1922 was enacted, to avoid the mischief and to remedy the evil. The contract of lease in the case before the Supreme Court provided that the lessee be entitled to surrender the lease before the expiry of the term, in which case, he had to dismantle the building at his expense; and on default, the landlord could take possession after dismantling the constructions. As to the scope of Section 12 of the Act and whether the above term was outside or within the purview of its proviso, the majority and dissenting judgments of the Supreme Court were in sharp conflict. The majority judgment held stipulations "as to the erection of buildings" would include only restrictions as to the size or nature of the buildings, the building materials to be used, and the purpose for which the building is to be used, but would not include a stipulation to remove buildings on the determination of the lease. The term in question was therefore not protected by the proviso. Section 9 was held constitutional and valid. The dissenting judgment, on the other hand, held that the proviso to Section 12 had application to the relevant term of the lease and that the contract between the parties was free to operate. In that view the dissenting judgment did not consider the constitutionality of Section 9.
8. We have searched in vain in the preamble of the main Act or in its objects and reasons or even in the notes on clauses--assuming these could be looked into--to find any clue or guidance as to the intention of the legislature in enacting the section. Beyond the bald assertion in the affidavit filed on behalf of the State (an assertion made after the event, by a party interested in upholding the legislation, indeed after the challenge on the ground that the legislation was violative of Article 19 (1) (f) was made, and therefore open to the charge that it is in the nature of an afterthought)--, no definite material has been placed before us that the section was intended to benefit the poorer section of agricultural labourers, who had put up petty tea shops or bunks, or the village artisans like the village carpenter, blacksmith, and the like, engaged in plying their trade. There is nothing again to show that the means of a large section of people would be imperilled or that commerce and industry, as a whole, will be affected if the protection conferred by the section were not granted. And we can by no means be sure that what promoted the legislation was not the interests of the rich and privileged persons engaged in commerce and industry, at the expense of the poorer section, namely the land-owners. If it were, what the State Government now protests it was, the materials that persuaded the legislature such as reports or studies, by investigating or expert bodies or individuals, statistics collected, evidence tendered before Committee, or statements made in the legislature itself should be forthcoming. No material of any kind having been placed before us to support the statement in the affidavit and as we have already said, if that statement were well founded such material should be forthcoming we trust we will not be blamed if we regard the statement with some degree of scepticism.
9. There is provision more or less to the same effect as in Vajrapani Naidu's case, (AIR 1964 SC 1440) in both the lease deeds before us, (Exts. D-4 and P-1) that on the determination of the lease, the lessee would dismantle and remove any sheds put up. But there is no provision (either in the main Act or the Act) like Section 12 of the Madras Act, which in the light of the Supreme Court's majority judgment in the Madras case, could operate on that clause. Section 17 of the Kerala Compensation for Tenants Improvements Act 1958, which prohibits contracts which take away or limit a tenant's right to make improvements and claim their value in accordance with that Act, even if to be read by incorporation into the main Act, cannot avail so as to claim improvements in respect of leases for commercial purposes (vide the decision in Assankutty v. Chindan, (1958 Ker LJ 463), and the cases noticed therein). Unaided by a provision such as what was present in Vajrapani Naidu's case, AIR 1964 SC 1440 and in the face of the express stipulation In Exts. D-4 and P-1 to dismantle and remove sheds if any erected, on determination of the tenancy, we cannot found the tenants' right to fixity in respect of commercial sites, as was done in the Madras case, on any Implied promises held out, or hopes or expectations raised. And unlike the Madras City Tenants Protection Act, neither the preamble to the Act, nor anything else, tells us that contrary to the hopes and expectations raised, lessees of commercial sites were sought to be evicted on a large scale and that the provision was designed to avoid the mischief and remedy the evil.
10. Next, as to the reasonableness of the restriction imposed by Section 106 on the fundamental right to hold property. It goes without saying that the landlord's reversionary right is a right to property. It is indeed the right of ownership. That right includes apart from the right to receive the rent, the very valuable right to get back the property on the termination of the lease. To say that an owner's right is only to receive fair rent might be substantially though not wholly true in respect of leased property if you add the qualification, "for the duration of the lease". To say that without that qualification is to ignore the right of reversion and to forget that a lease is a terminable interest and, except in the case of permanent lease, intended to be terminated. You do not need any legal learning to know that to convert a lease for a term into a permanent lease is to take property from the owner and give it to the tenant. It is to impose a tenant on an unwilling owner and to take away the latter's very valuable right to hold and enjoy the property himself. As early as in Subodh Gopal's case, (AIR 1954 SC 92) the Supreme Court proceeded to deal with the matter of restriction placed on a purchaser to annul under-tenures and to evict the tenant in possession as part of the fundamental right guaranteed under Article 19 (1) (f), but sustained the legislative measure in question as a reasonable restriction in the interests of the general public. And, in Jyoti Pershad's case, (AIR 1961 SC 1602) adverting to the provisions of the Slum Areas (Improvements and Clearance) Act 1956 which restricted eviction from slum areas for affording better living conditions to slum-dweller tenants, speaking for a unanimous court, Ayyangar, J. observed:
"Learned Counsel further urged that the right to hold property under Article 19 (1) (f) included the right in the owner of the building to evict a tenant and to enter into actual and physical possession of the property. Counsel is no doubt right in this submission, but the freedom to hold property is not absolute, but that, as he himself admitted, Is subject under Article 19 (5) to reasonable restriction being placed upon it in the interests of the general public".
(underlining ours).
In the light of the above and other cases, we cannot regard the observations in Inder Singh v. State of Rajasthan, (AIR 1957 SC 510) that legislations in America conferring fixity on the tiller of the soil have been upheld in America as involving the violation of no constitutional guarantee, as sounding a discordant note. Sections 14 to 17, 19 and 21 of the main Act which provide for resumption, are inapplicable in the case of, what we may call, these commercial sites by reason of Section 3 (3); and not even a qualified or substituted mode of recovery, as sanctioned by Section 75 of the main Act in the case of kudikidappus has been provided for, in their case. The principle of implied promise, or of expectation raised and hopes belied, does not obtain to justify the enactment of Section 106. There is no material at all, to hold that the section was meant in the interests of the poorer section of agricultural labourers and peasantry. On the contrary, as we have already remarked, it might well have been meant to further the interests of the rich and privileged persons engaged in commerce and industry.
11. The argument advanced that the granting of fixity of tenure in respect of leases of commercial sites was only a part of the legislative policy of controlling rents in regard to them, does not appeal to us and seems to be based on a fallacy. The American decisions referred to, for instance, in the Full Bench case in Subramania Iyer v. Dharmalinga Padayachi, (AIR 1958 Mad 608) were concerned with temporary measures, such as the house rent control legislations, where, giving, fixity of tenure to the tenant in possession was a necessary corollary to the control of shortage of accommodation and the fixation of fair rent, which cannot otherwise be effectively achieved. For, without any corresponding fixity of tenure to a tenant it would be open to the landlord to evict one tenant from the building and let out the same to another tenant on more favourable terms as to rent. This was recognised by Holmes, J. himself in Block v. Hirsh, (1920-65 Law Ed 865). The learned Judge there noticed that the emergency legislation was for two years and observed that circumstances may so change in time or so differ in space as to clothe with interest, what, at other tunes, or in other places would be a matter of purely private concern. In Chastleton Corporation v. Sinclair, (1923-68 Law Ed 841) the statute whose validity was considered, was the emergency legislation upheld earlier in (1920-65 Law Ed 865), continued in force after its expiry, and re-enacted for a further period of two years. Holmes, J. in this case noticed that the emergency could not be said to continue and that the court was not bound to accept the statement made to the contrary in the preamble to the Amending Act. The learned Judge directed the Supreme Court of Columbia to find the conditions as to housing accommodation and prevailing rates of rent, and then decide about the constitutionality of the statute. Whatever be the observation of the Full Bench decision of the Madras High Court in Subramania Iyer's case, (AIR 1958 Mad 608), we see no warrant to extend the principle of the two American decisions to a permanent statute conferring fixity. So far as the house rent control statutes in force are concerned, it is notorious that acute shortage of accommodation continues, so that unless a measure of fixity is given it will not be possible for members of the general public to obtain accommodation in urban areas at a reasonable rent which they can afford to pay. The continuing public interest and the, continuing reasonableness of the restriction is clearly established. And in no event can there be any question of applying that principle in a case in which, as here, there is really no material to show that the interests of the general public demanded the restriction on the rights of the owner. We may also observe that Rule 142 which provides for fixation of fair rent in regard to commercial sites provides that the fixation must be with respect to rates of rent, prevailing regarding lands used for similar purpose, and not a fair rent depending upon the real potentialities of the land or the most beneficial purpose to which it can be put at the relevant time. So that even the return assured to the landlord by way of rent cannot altogether be said to be fair.
12. The scheme of the main Act also appears to have been to exempt leases of lands or of buildings, or of both, specifically granted for industrial or commercial purposes from the purview of Chapter II which provides for fixity of tenure, resumption of land, fixation of fair rent, purchase of landlord's rights etc. (See Section 3 (3)). Having done this, to confer fixity of tenure by Section 106 in respect of such very leases exempted by Section 3 (3) seems virtually to nullify the exemption. The policy underlying Act 1 of 1957, Act 4 of 196i, and of Act 7 of 1963 which preceded the main Act has been to exclude leases of land for industrial and commercial purposes from the purview of their operation. Going still further back, we find that the Madras Act 33 of 1951 which amended the Malabar Tenancy Act 14 of 1930 for the Malabar area of this State enacted that there shall be no fixity of tenure in respect of lands used for commercial purposes. The same was the policy of the Cochin Verumpattomdars Act 1118 (for the Cochin area of this State), Section 3 (d) of which exempted leases for industrial and commercial purposes and Sub-section (f) of which exempted leases of lands within the municipalities, subject to the proviso that the provision would not apply to land within the municipality fit for paddy cultivation. The legislative policy being thus clear, the legislative history of Section 106 suggests that the incongruous provision was inserted in Act 4 of 1961 by Section 78 at the last moment, byway of afterthought as it were, with no manner of investigation or examination or discussion and with no disclosure as to what interests it was designed to further. And it was copied in Act I of 1964 and re-enacted therein by Act 35 of 1969 without examination.
13. In view of these considerations, we cannot hold that the section can be saved as a reasonable restriction in the interests of general public under Article 19 (5), on the right guaranteed by Article 19 (1) (f) of the Constitution. In so holding, we might well remind ourselves of the observations of Holmes, J. in Pennsylvania Coal Co.'s case, (1922-67 Law Ed 322) that:
"We are in danger of forgetting that a strong public desire to improve the general condition is not enough to warrant achieving that desire by any shorter cut than the constitutional way of paying for the change."
14. We desire to add a few words of discussion as to why we cannot save the provisions of the section by confining its application to matters which might fall within the purview of agrarian reform or things ancillary thereto; or only to leases granted for commercial and industrial purposes which promote the scheme of agrarian reform. The section does not admit of any such dissection, and the decision in Romesh Thappar's case, (AIR 1950 SC 124) is clearly against performing such a judicial surgery. The decisions in Megh Ral v. Allah Rakhia, (AIR 1942 FC 27) and in the R.M.D. C.'s case, (AIR 1957 SC 628) which confined the operation of a statute or of a particular provision to its constitutionally delimited field, appear to us to be distinguishable on principle. For, the process of devotailing was easy enough to perform, the statute or provision being confined within its legislative domain or within the embankments provided by the Chapter on fundamental rights. In AIR 1967 SC 1110 Hidayatullah, J. (as he then was) surveyed the principle of these decisions and held that where the grant is of a whole village predominantly agricultural, then even a small parcel of non-agricultural land comprised in it, can well be comprehended in the scheme of agrarian reform. This was what the learned Judge observed:
"15-A. All the villages with which we are concerned were agricultural villages, Regunvara was sold for encouraging cultivation as the sale-deed expressly says so. Similar considerations attached to the other villages whether granted for the upkeep of a horse as was the grant of Varacunda or for settlement of weavers and artisans in Daman District as in some other cases. As a village must be considered a single unit notwithstanding the fact that the sale deeds and other documents mentioned plots, we must consider whether the lands in the villages can come within the inclusive definition. That they do is inescapable because the bulk of the land in all the villages of which the proprietorship was with the several petitioners was either devoted to agriculture or pastures."
We cannot apply the above principle to commercial sites throughout this State and find out, if in each individual case, the grant of fixity operates as a measure of agrarian reforms or as a purpose ancillary thereto. The field itself seem to be unseverable.
15. A contention was raised that before Section 106 can apply there should be a subsisting tenancy. On this question, a single Judge decision of this Court in Moideen Haji v. Moosa Haji, 1965 Ker LT 784 is in conflict with two other single Judge decisions reported in 1965 Ker LT 519 and 1966 Ker LT 757. On the language of the section, it is quite unnecessary to show that a tenancy should subsist before the section can be availed of The section opens with the words. "Notwithstanding any decree etc."; and it is impossible to envisage a decree for eviction without a termination of the tenancy. The working of the section itself is thus sufficiently indicative that the tenancy need not subsist before its benefit can be availed of, and that the word "lessee" there includes a quondam lessee still in possession.
16. It was argued that even if Section 106 of the Act be struck down, the appellant was entitled to the benefits of the provision as it stood under the main Act, included in the Ninth Schedule and protected by Article 31-B. But the main Act required that before a lessee of a site for an industrial or commercial purpose can claim protection, he should have constructed a "building" for such purpose. It was only the Explanation introduced by the Act that provided that "building" includes a "shed". While rights, if any, under the old section, which have become vested in the appellant would remain unaffected by its repeal by Act 35 of 1969, there being certainly no intention to destroy such rights the question is whether a 'shed' would be a "building" within the terms of the old section. We are of the opinion that it would not. What is contemplated by Section 106 of the Act appears to us to be some investment by the tenant, or the incurring of expense for putting up some permanent structure, which is apt for the industrial or commercial purpose, for which the lease was granted. That would be a detriment suffered by the tenant which, even if not expressly authorised, must have been expected by the owner, having regard to the purpose of the lease. We do not understand the decision of the Supreme Court in Ghanshiam Das v. Debi Prasad, (AIR 1966 SC 1998) as in any way against the view that we take. All that was held in that decision was that a mere pit dug in the ground with brick by the side is not a building. We are of the view, that a temporary and removable structure, such as a shed in this case cannot be regarded as a building, and that the explanation added by the Act including a "shed" in the concept of a building cannot be regarded as declaratory. So the appellant in this case is not entitled to the protection of the old Section 106.
17. A feeble argument was attempted that Section 106 of the Act offends Article 14 in that only commercial sites on which a building including a shed is put up have been singled out for conferment of fixity. We are not at all impressed by this argument and we nave no hesitation to reject it. The classification appears to us unquestionably to be rational and based on intelligible differentia.
18. In the result, we hold that Section 106 of Act 1 of 1964, as repealed and re-enacted by Act 35 of 1969 cannot be saved as a measure of agrarian reform or as a matter ancillary thereto under Article 31-A of the Constitution. The said re-enacted provision violates the fundamental right under Article 19 (1) (f) of the Constitution and cannot be saved as a reasonable restriction thereon under Article 19 (5).
19. In the light of our conclusion, we dismiss this second appeal with costs.
Mathew, J.
20. In this appeal by 1st defendant from a decree for recovery of the plaint property--25 cents of land with a shed thereon--with arrears of rent, the 1st defendant contended on the basis of Section 106 introduced into Act 1 of 1964 by Act 35 of 1969 that he is not liable to be evicted, even though the term of the lease under which he was holding the property had expired,
21. The plaint property together with another 5 cents of land was leased to the 1st defendant by the 1st plaintiff for conducting a saw-mill business and for constructing a shed for the same in it. The original lease evidenced by Ext. D-4 dated 18-12-1125, was renewed on 5-6-1952 by Ext. P-1. The 1st defendant constructed a shed and began the business after Ext. D-4. The 1st plaintiff sold the property to the 2nd plaintiff by Ext. P-3 on 30-7-1958; and they instituted a suit for recovery of possession of the property, which was dismissed for the reason that the notice for terminating the lease was bad in law. Thereafter the present suit was instituted. In that suit the 1st defendant claimed the benefit of Section 78 of Act 4 of 1961. The trial court refused recovery of possession of the property on the basis of Section 78, but granted a decree for arrears of rent. The plaintiffs filed an appeal from the decree to the Sub Court, Kottarakkara. As Act 4 of 1961 was in the meanwhile declared unconstitutional, the appellate court held that the 1st defendant was not entitled to the benefit of Section 78 of Act 4 of 1961; and decreed the suit for recovery of possession of property with arrears of rent. Hence the second appeal.
22. The second appeal was placed before a Division Bench because of the conflict of rulings on the question whether in order to claim the benefit of Section 106 the lease must be subsisting. During the course of the argument before the Division Bench, since the constitutional validity of Section 106 introduced by Act 35 of 1969 was challenged by the respondent, the Division Bench referred the question of the constitutional validity of Section 106 introduced by Act 35 of 1969 to a Full Bench. Thereafter by an order of the learned Chief Justice the whole case was placed before the Full Bench; and that is how the matter has come before us.
23. A decision of a learned single Judge of this court reported in Moideen Haji v. Moosa Haji, 1965 Ker LT 784 took the view that for a tenant to get the benefit of Section 106 of Act 1 of 1964, the lease must be subsisting. But in 1966 Ker LT 757, following the decision of a Division Bench in Gopinatha Panicker v. Joseph, 1965 Ker LT 870 it was held that there need be no subsisting lease for the tenant to get the protection of Section 106. A reading of the section would show that the decision in 1965 Ker LT 784 is not right. The section says, among other things, that notwithstanding any decree for recovery! of possession of the property a tenant will be entitled to the benefit of the section. It is only after terminating a lease that a suit for recovery of possession will lie. A lease cannot subsist after the decree for recovery of possession. That is the basis of the decision in 1966 Ker LT 757; and I think, the decision lays down the correct law.
24. The second question for consideration is whether Section 106 introduced by Act 35 of 1969 is a measure of agrarian reform or a matter ancillary thereto. In Chami Chettiar v. T.K.B. Devaswom, 1970 Ker LT 897 (FB) I said that the concept of agrarian reform is not a static one and that its content varies with the needs of the agricultural population. One cannot put a niggardly interpretation as to the scope of the concept, seeing that its object and purpose is to make the village community a self-sufficient unit, and raise the standard of life of village population. If the ultimate object of agrarian reform is to raise the standard of life of the rural population, that can be done only by measures providing facilities for the village population to engage in subsidiary industrial and commercial occupations and by employing the means and instrumentalities secured by the advancement in technology, for their successful operation. In AIR 1965 SC 632 the Supreme Court said:--
"The scheme of rural development today envisages not only equitable distribution of land so that there is no undue imbalance in society resulting in a landless class on the one hand and a concentration of land in the hands of a few on the other, but envisages also the raising of economic standards and bettering rural health and social conditions. Provisions for the assignment of lands to village Panchayat for the use of the general community, or for hospitals, schools, manure pits, tanning grounds etc., enure for the benefit of rural population and must be considered to be an essential part of the redistribution of holdings and open lands to which no objection is apparently taken. If agrarian reforms are to succeed, mere distribution of land to the landless is not enough.
x x x x x x It is trite saying that India lives in villages and a scheme to make villages self-sufficient cannot but be regarded as part of the larger reforms which consolidation of holdings, fixing of ceilings on lands, distribution of surplus lands and utilising of vacant and waste lands contemplate."
Therefore, a measure intended to protect persons from eviction from lands leased to them for carrying on small industries or commerce to supply the needs of the villagers or for providing additional or subsidiary employment to them and thus raise their standard of life, cannot but be considered as part of agrarian reform. If the destiny of India lies in villages, a measure designed to provide facilities for carrying on industrial or commercial enterprises in villages by employing means and instrumentalities provided by modern technological advancement will be embraced within the concept. The mere fact that instead of using the primitive saw, a person employs the services of a saw-mill for carrying on the industry should not colour our judgment in deciding the question whether a measure to prevent his eviction from the place of his business is agrarian reform or not. The provision occurs in a statute which deals with agrarian reform.
In paragraph 2 of the counter-affidavit on behalf of the State, it is stated:
"It is submitted that the protection given to leases for commercial or industrial purposes is in the interests of the development and stability of rural economy in the State. It is the landless artisans and petty traders who have generally taken such land on lease for commercial or industrial purposes and have put up buildings which are mostly in the nature of sheds. Giving protection to these artisans and traders is essential for the stability and progress of the rural economy of the State, The provisions in Sections 106 and 106-A therefore envisage a scheme of agrarian reform."
In the statement filed by the 1st defendant in this court he says that the area of land is only 25 cents, that a shed has been constructed upon it, that the land is situate in the Kottarakkara Panchayat, away from the public road and in the vicinity of paddy fields, and that he is an agriculturist by profession.
But the section as it is worded is capable of being interpreted as including protection of lessees of land taken for commercial or industrial purposes which might not be measures of agrarian reform. One can visualise instances of leases granted for big industrial and commercial enterprises in urban or even in rural areas to industrial or commercial magnates solely for their acquisitive purposes. Protection of such lessees also might fall within the wide ambit of the section, but that might not form part of a scheme for development of rural economy. But if the section is read as limited to the protection of lessees for industrial or commercial purposes for making the village community self-sufficient or for providing alternative employment to the villagers, and thus to raise their standard of life, I see no reason to think that the section does not deal with agrarian reform.
"When the validity of Act of Congress or (a provision in an Act) is drawn in question and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this court will first ascertain whether a construction of the statute or (provision) is fairly possible by which the question may be avoided." (See Crowell v. Benson, (1932) 285 US 22 at p. 62). The cardinal principle of statutory construction is to save and not to destroy. As between two possible interpretations of a statute, by one of which it will be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act. (See National Labour Relations Board v. Jones & Laughlin Steel Corporation, ((1937) 301 US 1). That apart, the constitutional validity of a statute or a provision in a statute may in certain cases depend upon the facts to which the statute or the provision has to be applied. If applied to one particular set of facts the statute or the provision might be valid, but if applied to a different set of facts, it might be invalid.
"The question as to the constitutionality of law does not in all cases, go to the essential validity of the law, that is, as applicable to any or all conditions, but may depend upon the particular facts to which it is sought to be applied." (See 'Willoughby on the Constitution of the United States", Vol. I, page 15).
To this group of cases belong cases involving constitutional infirmity in the application of legislation as distinguished from inherent unconstitutionality. In Poindexter v. Greenhow, (1885) 114 US 270 the court said:
"And it is no objection to the remedy in such cases, that the statute whose application in the particular case is sought to be restrained is not void on its face, but is complained of only because its operation in the particular instance marks a violation of a constitutional right; for the cases arc numerous, where the tax laws of a State, which in their general and proper application are perfectly valid, have been held to become void in particular cases, either as unconstitutional regulations of commerce, or as violations of contracts prohibited by the Constitution or because in some other way they operate to deprive the party complaining, of a right secured to him by the Constitution of the United States."
In Jacobson v. Massachusetts. (1905) 197 US 11 the Court in considering the question of the constitutionality of a vaccination law suggested in answer to the contention that law would operate and work hardship in several cases coming within its ambit, that the law will not be applied if it could be shown that the person sought to be vaccinated "is not at the time a fit subject for vaccination or that vaccination by the reason of his then condition of health would seriously impair his health or probably cause his death". Thus, a statute regulating the level of railroad passenger fares may be valid as applied to one railroad, but invalid as applied to another. See Simpson v. Shepard, (1913) 230 US 352. A statute not generally arbitrary may be arbitrary when applied to some specific person or situation.
one questions that evidence of inadequate return is necessary to overthrow a prices-fixing or rate-regulating statute; and it seems obviously necessary that when a statute is attacked because of some particular vice in its application to a special situation, definite evidence must be adduced as to its operation in the circumstances for the purpose of demonstrating the constitutional infirmity". (See 'Questions of Fact Affecting Constitutionality' by Henry Wolf Bikle-38 Harvard Law Review, page 6 at 16).
I would, therefore, hold that the section as construed by me and applied to the facts here, is a measure of agrarian reform. Its possible invalidity when applied to other facts or situations within its apparent compass need not deter its being a measure of agrarian reform when applied to the facts here.
25. Assuming that the section is not a measure of agrarian reform, or cannot be read in the manner suggested by me above, the question still remains whether the restriction imposed by the section upon the right of a landlord to hold property is reasonable under Article 19 (5). In AIR 1964 SC 1440 one of the questions for consideration was the constitutionality of Section 9 of the Madras City Tenants' Protection Act (3 of 1922) which enabled a tenant to purchase the property leased to him on determination of the lease for the reason that it imposes unreasonable restriction upon the fundamental right of the landlord to hold property. Shah, J., for the majority said that the right given to the tenant to purchase the property after the expiry of the period of the lease at the market value as decided by the court is a reasonable restriction upon the fundamental right of the landlord to hold the property. Shah, J., observed:
"Section 9 (1) which enables a tenant to purchase on determination of the lease the land of the landlord is somewhat unusual. But it cannot be said that it imposes an unreasonable restriction upon the right of the landlord to hold and dispose of property within the meaning of Article 19 (1) (f) of the Constitution. The Act applies to only a limited class of lands: it applied to lands granted in lease for construction of buildings before the date with effect from which the Act is extended to the town or village. It was enacted with a view to give protection to the tenants who had, notwithstanding the usual covenants relating to determination of tenancies, obtained lands on lease in the hope that so long as they paid and continued to pay fair rent, they would not be evicted, but because of changed conditions as a result of the War, appreciation in land values and consequent increase in the level of rents, were faced with actions in ejectment involving dismantling of properties constructed by them, and eviction. The protection becomes effective only when the landlord seeks to obtain, in breach of the mutual understanding, benefit of the unearned increment in the land values by instituting a suit in ejectment. It was manifestly in the interest of the general public to effectuate the mutual understanding between the landlords and the tenants as to the duration of the tenancies and to conserve building materials by maintaining existing buildings for purposes for which the leases were granted. Restriction imposed upon the right of the landlord to obtain possession of the premises demised according to the terms of the lease would, therefore, not be regarded as imposing an unreasonable restriction in the exercise of the right conferred upon the landlord by Article 19 (1) (f) of the Constitution, because the restriction would be regarded as in the interests of the general public. We ought to emphasize that what Section 9 does is not so much to deprive the landlord of his property or to acquire his rights to it as to give effect to the real agreement between him and his tenant which induced the tenant to construct his building on the plot let out to him If the Law is not invalid as offending Article 19 (1) (f) of the Constitution, no independent infringement of Article 31 (1) of the Constitution may be set up."
Rule 142 of the Rules framed under Act 35 of 1969 provides for fixation of rent payable by a tenant. Rule 142 reads:
"(1) At any time after the expiry of twelve years from the date of the contract of tenancy or the date of refixation of rent under this rule, the lessor or lessee may apply to the Land Tribunal for refixation of the rent.
(2) On receipt of such application, the Land Tribunal shall give notice to the opposite party and after making due enquiry pass orders on the application.
(3) In passing orders under Sub-rule (2), the Land Tribunal shall have regard to the rates of rent prevailing in the locality in respect of lands used for similar purposes."
The rule makes it clear that the land-lord or tenant is entitled to get the rent revised at the prevailing rate for similar land every twelve years. Applying the reasoning of the Supreme Court. I would say that notwithstanding the period fixed in the lease the expectation of the parties was that the lease will continue as long as the rent is paid. The normal understanding in such cases would be, when expenditure' has been incurred in the construction of a building or shed for the purpose of carrying on the industry or commerce, as the case may be that the tenant would not be evicted even after the expiry of the period. When a person has incurred expenditure or otherwise altered his position by constructing a building or shed for carrying on an industry or commerce for which the property was leased, and has established the industry or business and acquired a reputation or good-will, to say that he can be compelled by the landlord to vacate the property after demolishing the building or shed as the term of the lease has expired, would cause comparatively greater hardship to the tenant than to the landlord. It would cause dislocation of the business.
Irreparable prejudice in the shape of loss of good-will might be caused to the tenant. It might create unemployment and a host of evils attendant thereon. And if the legislature thought that these evils should be prevented, are we justified in saying that the legislative judgment is wrong or that the policy underlying the provision is not agreeable to us?
Apart from the averment in the counter-affidavit, we are entitled to take judicial notice of the fact that there are several persons in this State who are carrying on small industry or commerce in rural and urban areas on lands leased out to them for that purpose and who have incurred expenditure for construction of buildings or sheds, as the case may be, for that purpose. And if the legislature thought that to allow the landlords in these cases to recover possession at the expiry of the leases either because the land has enhanced in value on account of the establishment of the very business or industry, or on account of inflation or other fortuitous circumstances, would bring about hardship to tenants in the shape of dislocation of their industry or business, or cause unemployment and that the evils resulting to society therefrom are comparatively greater than the hardships to the landlords as a class, I do not know how we can say that the appraisal by the legislature of the comparative gravity of evils on the one hand and the hardship on the other is wrong, and that the remedy proposed is unreasonable.
The presumption that the legislature knows the need of the people and that the legislation is intended to meet the need is no idle one. In Missouri Kansas & Texas Ry. Co. v May, (1904) 194 US 267 at p. 270 Justice Holmes said:
"It must be remembered that the legislatures are guardians of the liberties and welfare of the people in quite as great a degree as the courts."
In Schlesinger v. Wisconsin (1926) 270 US 230 he observed:
"In dealing with State legislation upon matters of substantive law we should avoid with great caution attempts to substitute our judgment for that of the body whose business it Is in the first place, with regard to questions of domestic policy that fairly are open to debate ............ and while I should notdream of asking where the line can be "drawn, since the great body of the law consists in drawing such lines, yet when you realize that you are dealing with a matter of degree you must realize that reasonable men may differ widely as to the place where the line should tall"
Learned Hand speaking about Holmes, said:
"His decisions are not to be read as Indicating his own views on public matters, but they do indicate his settled belief that in such matters the judges cannot safely intervene, that the Constitution did not create a tricameral system, that a law which can got itself enacted is almost sure to have behind it a support which is not wholly unreasonable." (See 'Learned Hand: Patient Democrat' by Wallace Mendelson -- 76 Harvard Law Review pages 322, 323).
Learned Hand's standard for intervention was essentially the same, namely, if there was room for doubt, legislation like the verdict of a jury must stand, and that judicial intervention was permissible only if a court was prepared to hold that no reasonable man could have found as the legislature or the jury did. Except in respect of what are called 'preferred freedoms' this approach has been consistently maintained by him and other great judges. It is only if it is possible for the court to come to the conclusion that no body of reasonable men could have enacted a provision like the one in question that the court can say that it is an unreasonable restriction upon the right to hold property.
There are two types of constitutional issues which come before court for adjudication. The first type embodies specific limitation upon the power of the States or the Central Government in the explicit distribution of authority under a federal Government. Here, the constitutional provisions are definite in their terms, and they canalize judicial review within narrow limits. In the other class, words like 'property' or 'liberty' and phrases like 'equality before the law' or 'the equal protection of the laws' are the foundations for judgment upon the whole appalling domain of social and economic facts These words or terms have got a convenient vagueness and their content is derived from without, not revealed within the Constitution. Because of this the court is compelled to put meaning into them Although most of these conceptions are transplanted from English soil, their contents vary from age to age. In other words, each generation will Dour its ethos into them. I agree that it was because the Constitution-makers deemed certain rights fundamental that they incorporated them in Part III of the Constitution, and put them on a high pedestal so that they may not be trodden under the cloven fool of the passing majority, in West Virginia State Board of Education v Walter Barnette, (1943) 319 US 624 at pp 638, 667 & 669. Justice Jackson said "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote: they depend on the outcome of no elections.
x xx True, the task of translating the majestic generalities of the Bill of Rights.
conceived as part of the pattern of liberal Government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence.
These principles srew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men's affairs. We must transplant these rights to a soil in which the laissez-
faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. These changed conditions often deprive precedents of reliability and cast us more than we would choose upon our own judgment"
In American Federation of Labor v. American Sash & Door Co. (1948) 335 US 538. 553 Justice Frankfurter addressing himself to the circumstances in which a Judge will be justified in interfering with a legislation regarding restriction on property on the ground that it is not due process, said:
"Most laws dealing with economic and social problems are matters of trial and error. That which before trial appears to be demonstrably bad may belie prophecy in actual operation. It may not prove good, but it may prove innocuous. But even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat.
X X X X But there is reason for judicial restraint in matters of policy deeper than the value of experiment: it is founded on a recognition of the gulf of difference between sustaining and nullifying legislation. This difference is theoretical in that the function of legislating is for legislatures who have also taken oaths to sup-port the Constitution, while the function of courts, when legislation is challenged, is merely to make sure that the legislature has exercised an allowable judgment, and not to exercise their own judgment whether a policy is within or without "the vague contours" of due process .................. ... In the day-to-day working of our democracy it is vital that the power of the non-democratic organ of our Government be exercised with rigorous self-restraint. Because the powers exercised by this court are inherently oligarchic. Jefferson all his life thought of the Court as 'an irresponsible body' and 'independent of the nation itself. The Court is not saved from being oligarchic because it professes to act in the service of humane ends. As history amply proves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements, and such misconceptions are not subject to legitimate displacement by the will of the people except at too slow a Pace".
Justice Holmes said in Truax v. Corrigan, (1921) 257 US 312 at p. 344:
"There is nothing that I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect".
Cardozo said:
"Courts know today that statutes are to be viewed, not in isolation or in vacuo, as pronouncements of abstract principles for the guidance of an ideal community, but in the setting and the framework of present day conditions......
From all this, it results that the content of constitutional immunities is not constant, but varies from age to age. 'The needs of successive generations may make restrictions imperative today, which were vain and capricious to the vision of times past'. 'We must never forget', in Marshall's mighty phrase, 'that it is a Constitution we are expounding." (see 'The Nature of the Judicial Process' by Benjamin N. Cardozo, page 81).
J.B. Thayer, that great teacher of Constitutional law, expressed the principle of judicial review in a matter like this as follows:
"It (the court) can only disregard the Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one. -- so clear that it is not open to rational question. That is the standard of duty to which the courts bring legislative Acts; that is the test which they apply, not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the Constitution has charged with the duty of making it. This rule recognises that, having regard to the great complex ever-unfolding exigencies of Government much which will seem, unconstitutional to one man, or body of men, may reasonably not seem so to another; that the Constitution often admits of different interpretations: that there is often a range of choice and judgment: that in such cases the Constitution-does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional." (See "The Origin and Scope of the American Doctrine of Constitutional Law" by J. B. Thayer-7 Harvard Law Review 129), "The logic and rhetoric of a Brandeis dissent were in terms of judical deference to the legislative judgment. The Court should not read laissez faire into the Constitution however great its belief in it. If there was an evil to be remedied and the remedy was fitting the Court must permit the experiment. In the exercise of power under the due process clause 'we must be ever on our guard.' he said, 'lest we erect our prejudices into legal principles'.
x x x x As history amply Droves, the judiciary is prone to misconceive the public good by confounding private notions with constitutional requirements, and such misconceptions are not subject to legitimate displacement by the will of the people except at too slow a pace .................."
(See "Was Brandeis an Activist" by Louis L. Jaffee -- 80 Harvard Law Review 986 at 991. 995.) Justice Black, the great champion of the absolute character of the rights guaranteed by the Bill of Rights, said:
"I repeat so as not to be misunderstood that this Court does have power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subletting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would. I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have". (See Griswold v. Connecticut. 381 US 479, 520).
Though the power of judicial review is much wider in America because of the 'due process' clause, these extracts from the great masters of law would indicate the necessity of self-restraint on the part of the Judges in dealing with regulations of economic matters or property rights. I had indicated the desirability of that approach in my judgment in Narayanan Nair v. State. In State of Madras v. V.G. Row, AIR 1952 SC 196, Patanjali Sastri J., said:
"Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provision for judicial review of legislation as to its conformity with the Constitution unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted 'due process' clause in the Fifth and Fourteenth Amendments.
X X X It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have in authorising the imposition of the restrictions, considered them to be reasonable".
Now, let us look at the nature of the right alleged to be infringed in this case: the right of the landlord to recover possession at the expiration of the period of the tenancy. In Kishan Singh v. Rajasthan State. AIR 1955 SC 795 Venkatarama Iyer J., said:
"The fundamental right which a citizen has to hold and enjoy property imports only a right to recover reasonable rent when the lands are cultivated by a tenant ............... .........
X X X X The question whether a law is valid under Article 19 (5) can arise only when there is a violation of the fundamental right declared in Article 19 (1) (f), and if the right to hold property imports, as we have held it does, only a right to recover reasonable rent from cultivating tenants, that right cannot be held to have been invaded by a law, fixing reasonable rent, even when it is retrospective in operation".
Probably the weakest of all fundamental rights is the right to property. (See per Hidayatullah J., in Golak Nath's case, AIR 1967 SC 1643).
What is the underlying purpose of the provision? To prevent the eviction of a large number of petty traders or persons carrying on small industries, who have constructed buildings or sheds for the purpose on lands leased. The urgency of the evil was that unless eviction is prevented the persons who depend for their livelihood on the income of such trade or industry will be left without any occupation, and there will be dislocation of commercial and industrial economy. Next let us see the disproportion of the imposition. The motive which prompts the landlords in the majority of cases to resort to eviction on the expiry of the term of the leases, is either their desire to get higher rent on account of the enhancement in the value of the land by the establishment of the very trade or industry, or to make a better bargain either by way of lease to another or to sell the land itself on account of the enhancement in the value of land by inflation or because of other fortuitous circumstances, a desire, though quite legitimate and even encouraged in a society based on the laissez faire theory of economics or suited to the "economic man" of the acquisitive society, is out of joint with the concept of a welfare State. By and large, the gain to the society from allowing these lessees to continue in occupation of the land, and carrying on the business or industry far outweighs the sacrifice on the part of the landlords. At any rate, that is the assessment of the legislature. The legislature has chosen a method for remedying the evil. And the question for this court is not whether the remedy is too strong for the judicial stomach, but whether a body of reasonable men could have thought it to be a reasonable one. The question to be asked and answered is expressed in the felicitous language of Learned Hand: "If a court be really candid, it can only say: 'we find that this measure will have this result; it will injure this group in such and such ways, and benefit that group in these other ways. We declare it invalid because after every conceivable allowance for differences of outlook, we cannot see how a fair person can honestly believe that the benefits balance the losses'" (See The Spirit of Liberty', page 124 ) Let us now take the last ingredient of reasonableness in the fromulation by Patanjali Sastri C. J., the prevailing conditions at the time. I need here refer only to a dynamic passage from the judgment of Rajagopala Ayyangar J., in Jyoti Pershad v. Union Territory of Delhi, AIR 1961 SC 1602 at p. 1613:
"If law failed to take account of unusual situations of pressing urgency arising in the country and of the social urges generated by the patterns of thought evolution and of social consciousness which we witness in the second half of this century, it would have to be written down as having failed in the very purpose of its existence. Where the legislature fulfills its purpose and enacts laws, which in its wisdom, are considered necessary for the solution of what after all is a very human problem the tests of 'resonableness' have to be viewed in the context of the issues which faced the legislature In the construction of such laws and particularly in judging of their, validity the Courts have necessarily to approach it from the point of view of furthering the social interest which it is the purpose of the legislation to promote, for the Courts are not, in these matters, functioning as it were in vacuo, but as Darts of a society which is trying, by enacted law, to solve its problems and achieve social concord and peaceful adjustment and thus furthering the moral and material progress of the community as a whole."
The fact that the section is couched in a language wide enough to include the prevention of eviction of lessees of lands for big industrial or commercial enterprises carried on from purely acquisitive motives without any corresponding advantage to the society and who could easily find alternative sites for carrying on the business or industry, might make the restriction unreasonable when applied to those cases. As I said, the section, as it occurs in a legislation intended primarily as a measure of agrarian reform, has to be read in view of that objective of the legislature. Applied to the class of persons primarily intended to be benefited, the provision appears to me to be a reasonable restriction. That other persons not intended to be beneficiaries of the section would also be getting the protection of the section is no reason for adjudging the restriction as unreasonable. As observed by Venkatarama Iyer J., in Santhanakrishna v. Vaithilingam, AIR 1954 Mad 51:
"In judging of the reasonableness of an enactment, it will be useful to bear two principles in mind. One is that when once it is found that the object of the legislation and the means adopted to secure it are both reasonable, it is no objection to its validity that it incidentally confers rights on persons who are not in themselves intended to be beneficiaries". In Raja Harisingh v. State of Rajasthan, AIR 1954 Raj 117 section 10 of the Tenancy Act in question there provided that "subject to the provisions of Section 11, every person, who at the commencement of this Act, is a tenant or who is, after the commencement of this Act, admitted as a tenant, otherwise than as a sub-tenant, shall be Khatedar. Section 13 provided that Khatedar would have heritable rights but not transferable right. Section 16 gives a limited right of transfer to Khatedar, and this is confined to alienation by sale or otherwise to any co-tenant or to a person who, if he survived the tenant, without nearer heirs, would inherit his right". These provisions were challenged as placing an unreasonable restriction upon the fundamental right under Article 19 (1) (f). Wanchoo C. J., said:
"It cannot be seriously disputed that It is open to the State to Pass a law fixing principles on which rents should be fixed, and determining the rights of tenants and landlords with respect to the nature of tenure, ejectment and so on. Such laws are a feature of all progressive states, and it is too late in the day to say that they are hit by Article 19 (1) (f), unless it is shown that the restriction is unreasonable and goes beyond the necessities of the case ..............."
In this connection, we may refer to Rajah of Bobbili v. State of Madras, AIR 1952 Mad 203. It was held in that case that enjoyment of property in the case of landholders does not mean an absolute right to charge from the tenants whatever they like or to elect old tenants whenever they like and to keep new tenants on whatever terms they like. It only means enjoyment of the land in accordance with the laws that may regulate the relationship between landholders and tenants. Collection of such rents as would be lawful would be full enjoyment of the property, and similarly, occupation by tenants according to law, even against the will of the landholder, or taking of new tenants on terms and conditions permissible by law but not in excess thereof would also be full enjoyment of the property".
In AIR 1957 SC 510. Venkatarama Iyer J., observed as follows:
"It is finally contended that the pro-visions of the Act are repugnant to Article 19 (1) (f) in that they oblige the landowners to keep tenants on their lands, thereby preventing them from themselves cultivating the same. The object of the Ordinance, as set out in the preamble, is clearly not to out a restriction on the right of an owner to himself cultivate the lands, but to prevent him when he had inducted a tenant on the land from getting rid of him without sufficient cause. A law which requires that an owner who is not himself a tiller of the soil should assure to the actual tiller some fixity of tenure, cannot on that ground alone be said to be unreasonable. Legislation of this character has been upheld in America as not infringing any Constitutional guarantee. Thus in (1920) 65 Law Ed 865 = 256 US 135 a statute which gave a right to tenants to continue in possession even after the expiry of the lease, was held to be valid. Holmes J., observing.
'The main point against the law is that tenants are allowed to remain in possession at the same rent that they have been paying unless modified by the commission established by the Act, and that thus the use of the land and the right of the owner to do what he will with his own and to make what contracts he pleases are cut down. But if the public interest be established, the regulation of rates is one of first forms in which it is asserted, and the validity of such regulation has been settled since Munn v. People of Illinios, (1877) 94 US 113 .....................
The preference given to the tenant in possession is an almost necessary ingredient of the policy, and is traditional in English law. If the tenant remained subject to the landlord's power to evict, the attempt to limit the landlord's demands would fail"
The legislation in question there was temporary in character. Though that was one reason for upholding the legislation, I cannot say that the main reason for upholding the legislation was that. In AIR 1958 Mad 608 (FB) the Court said after referring to the above case:
"I hold that, in order that the legislature of a State might enact legislation extending the term of a tenant of land beyond the period fixed by the contract of tenancy, it is not necessary that there should be a situation which can be called an emergency in the relations of such landowners and tenants".
The court was there concerned with the validity of the provisions in the Taniore Tenants, and Pannaiyal Protection Act, 1952, the Madras Cultivating Tenants Protection Act 1955, as amended by Madras Act XIV of 1956, and the Madras Cultivating Tenants (Payment of Fair Rent) Act. 1956. The Court further said:
"I am unable to hold that (1920) 65 Law Ed 865 and (1923) 68 Law Ed 841, are part of the Constitutional law of this country so as to compel the courts to hold that tenancy legislation by which a tenant, whose term has expired, is authorised to continue in possession, subject to terms as to payment of fair rent and proper use of the land, for a reasonable period after the termination of the tenancy, must be held ultra vires the State legislature unless such legislation is intended and is reasonably necessary to meet an emergency in the relations of tenants and landowners of that description.
X X X X The right which a landowner has to evict a tenant on the expiry of his term under the contract of tenancy is vested in the landowner under the general law of contracts and the principles enacted in the Transfer of Property Act. Clear authority for the proposition that the legislature has the power to modify or curtail, for the benefit of the tenant (including in the term an ex-tenant), rights which are vested in the landowner under the general law and the Transfer of Property Act is furnished by the decision of the Supreme Court in 1954 SCR 587 -(AIR 1954 SC 92).
X X X X It follows from that ruling that restrictions imposed on landowners for the benefit of tenants cannot be regarded as unreasonable or beyond the competence of the legislature on the mere around that the restrictions deprive the landowner of certain antecedent vested rights". 26. On the abstract question upon whom is the burden of proving the reasonableness of the restriction, is it on the State or the person impugning the law, there has been some argument at the Bar. In Khverbari Tea Co. v. State of Assam, AIR 1964 SC 925 the court said: "Another principle which has to be
borne in mind in examining the constitutionality of a statute, it was observed. Is that it must be assumed that the legislature understands and appreciates the needs of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, there fore, in favour of the constitutionality of an enactment.' It is significant that all the decisions to which reference is made in support of the statement of the law are decisions under Article 14 of the Constitution. Mr. Setalvad has fairly conceded that in view of the decision of this Court in the case of Saghir Ahmad, AIR 1954 SC 728, it would not be open to him to contend that even after the invasion of the fundamental right of a citizen is proved under Article 19 (1) (g), the onus would not shift to the State. In our opinion, the said decision is a clear authority for the proposition that once the invasion of the fundamental right under Article 19 (1) is proved, the State must justify its case under Clause (6) which is in the nature of an exception to the main provisions contained in Article 19 (1)". In that case Sarkar J., observed:
"It was said that the restriction is permitted by Clause (6) of Article 19 which contains an exception and that an exception has to be proved by the party who wants to take advantage of it That does not seem to me to be a proper way of reading a Constitution and this rule of construction must, in my view, give wav to the rule of presumption of constitutionality. It may also legitimately be said that there is not exception; the real fundamental right is what is left after the restriction has been imposed and, therefore, the citizen alleging violation of his fundamental right must also show that the restriction is unreasonable. It is not necessary to pursue the matter further or to pronounce finally on it now because for one thing, the observation in Saghir Ahmad's case. ........................ is there and for another, nothing turns on onus in this case. I have only mentioned it as it is a matter which to my mind requires consideration when the question properly arises".
In U. S. v. Carolene Products. (1937) 304 US 144 Justice Stone said:
"The existence of facts supporting legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators".
In Hamdard Dawakhana v. Union of India. AIR 1960 SC 554 it is stated:
"Another principle which has to be borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted. Presumption is, therefore, in favour of the constitutionality of an enactment".
If as Holmes said in Lochner v. New York, (1904) 198 US 45 the majority is entitled to embody its opinion in a legislation and if there is a presumption that the legislature understands the needs of the people and that the legislation is designed to meet the needs of the people, there might be no scope for making a distinction between Articles 14 and 19 in this behalf, as Sarkar J., has said.
I have already said that the averments in the counter-affidavit filed on behalf of the State, and the judicial notice, which we, as ordinary men can take of the condition in the State of rural life and its needs and of petty traders in general, would be enough to show that the restriction is reasonable when applied to the class of cases to which the legislature intended the provision to apply. Assuming that the section is couched in a language wide enough to take in a class of lessees who does not deserve the protection of the section, the section can by the doctrine of sever ability in application be constitutionally applied to the class intended to be protected by the legislation. In AIR 1950 SC 124, Patanjali Sastri J., as he then was said:
"Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not sever-able. So lone as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void".
The test for severability clearly must be whether the legislature would have intended the valid application to stand if it had known when the law was enacted of the invalidity of the remainder. When the problem is one of separating the valid and invalid applications of statutory language no difficulty generally can arise as to whether the valid application standing along can be given legal effect and accordingly the intention of the legislature would appear to be the only standard remaining to guide the court in determining such questions. See 'Separability and Separability Clauses' by 51 Harvard Law Review page 76 at 99. I have dealt with this question in my judgment in Narayanan Nair v. State of Kerala. 1970 Ker LT 659 = (AIR 1971 Ker 98 (FB)). This was the approach made in AIR 1957 SC 628. In that case the court came to the conclusion that the provisions of Sections 4 and 5 of the Prize Competitions Act (42 of 1955) were severable. Those provisions were challenged on the ground that prize competition as defined in Section 2 (d) of the Act included not merely competitions that were of a gambling nature, but also those in which success depended to a substantial degree on skill. The court having regard to the declared object of the legislation and its history and the wording of the statute, came to the conclusion that the competitions which were said to be controlled and regulated by the Act were only those competitions in which success did not depend upon any substantial degree of skill. The court also said that even on the assumption that prize competition as defined in Section 2(d) of the Act included those in which success depended to a substantial degree on skill as well as those in which it did not so depend, the doctrine of severability can be applied: and laid down certain rules for construction. On the application of these rules the court held that the impugned provisions were severable in their application to competitions in which success did not depend to any substantial degree on skill.
Applying the rules to the present Section it will not be questioned that the leases granted for the establishment of small industry or commerce, and which tends to make the village a self-sufficient unit, and those leases either in rural or urban areas for carrying on petty trade or industry, and the lessees depending for their livelihood upon the trade or industry, as already indicated, stand as a class apart and form a distinct category from those leases granted to commercial or industrial magnates for carrying on commerce or industry on a big scale, and who do not depend for their livelihood upon it and who can easily find alternative places for carrying on the industry or commerce. As Venkatarama Iyer J., said in the R. M. D. C. case AIR 1957 SC 628 "on the facts there might be difficulty in deciding whether a given competition falls within one category or the other, but when its true character is determined, it must fall either under one or the other". The history of the provision and its purpose in the setting of the legislation as a whole would make it clear that the legislature wanted to protect a class of lessees in rural areas who have set up industry or commerce to make the village life self-sufficient, or as a means of livelihood, and a class of lessees in urban areas who have established petty industries or trades and who depend for their livelihood upon the trade or commerce and who if evicted from the place of trade or business would be left without any employment The restriction imposed by the impugned provision if applied to the lessors of this class of persons carrying on trade or business, would not affect the texture or colour of the section. The section does not require to be re-written for its application to them. The section will apply squarely to this class on its own terms and in its true spirit. The section can be severed in its application to the class of leases adverted to.
27. Then the only further question for consideration is whether even if the restriction is assumed to be unreasonable the 1st defendant is entitled to set the benefit of Section 106 of Act 1 of 1964 before it was amended by Act 35 of 1969. It may be recalled that Act 1 of 1964 was included in the Ninth Schedule, and so that section is immune from all constitutional attacks. In that section 'building' alone was mentioned. If a 'shed' would be a 'building' within the meaning of that section, the 1st defendant would be entitled to get the benefit of Section 106 of Act 1 of 1964, because the right to get fixity of tenure accrued to him under that Act, and the repeal of that provision by the amendment by Act 35 of 1969 would not take away that right. The word 'building' is a coat of many colours. It has no fixed content. Its content varies with the context in which the expression is used. In considering the meaning of the word 'building' the Supreme Court said in AIR 1966 SC 1998:
"The word 'building' has not been defined in the Act and must, therefore, be construed in its ordinary grammatical sense unless there is something in the context or object of the statute to show that it is used in a special sense different from its ordinary grammatical sense". In Black's Law Dictionary, 'building' is defined as follows:
"A structure or edifice erected by the hand of man, composed of natural materials as stone or wood, and intended for use or convenience".
In Chambers's Dictionary it is defined as follows:
"the art of erecting houses etc., anything built; a house."
Looking at the purpose of the provision it appears to me that a tenant who has constructed a shed to carry on a trade or industry and has thereby suffered detriment should also get the benefit of the section. Now, if the industrial or the commercial purpose for which the lease was taken only requires a shed for that purpose, it would be unreasonable to hold that to get the protection the tenant should have constructed a pucca building. If a building as defined in Black's Dictionary is not necessary to carry on the industry or trade, to require that the tenant should have constructed a building in order to set the protection is unreasonable. Looking at the scheme of the legislation and the underlying purpose of the provision in question, namely to protect petty traders and artisans and other like persons who have taken on lease lands for commercial or industrial purposes and constructed buildings or sheds appropriate to the purpose. I think, it would be consistent with the legislative purpose to say that 'building' in the section includes a shed. We do not always understand the purpose of a legislation by taking a dictionary and the words used in the section. In the context. I think, 'building' can only mean a type of building, which might even be a shed, suited to the purpose of carrying on the industry or commerce for which the land was taken on lease. In the amending Act there is an Explanation to the section which reads:
'For the purposes of this section, 'building' means a permanent or a temporary building and includes a shed". The legislature wanted to explain the scope of the expression 'building' occurring in Section 106 of Act 1 of 1964 and that was why they added the Explanation to Section 106 in Act 35 of 1969. Therefore, even if it be held that Section 106 introduced by Act 35 of 1969 is not a measure of agrarian reform or that it imposes an unreasonable restriction upon the fundamental right of the landlord and is invalid, the tenant (1st defendant will be entitled to the protection of Section 106 of Act 1 of 1964, as the right to fixity of tenure accrued to him before that provision was amended, and the amendment has not taken away the right which has already accrued.
I would, therefore, allow the appeal in part and modify the decree. The plaintiffs will not be entitled to recover possession of the property and the shed, but would be entitled to recover the rent as decreed by the court below. I make no order as to costs.
28. BY COURT: Appeal dismissed with costs