SRI SRI KALIMATA THAKURANI & SRI SRI RAGHUNATH JEW & ORS. ETC. v. UNION OF INDIA & ORS

Citation: [1981] 2 S.C.R. 950

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, A. VARADARAJAN

Case summary

These petitions under Article 32 of the Constitution have been filed in order to challenge the vires of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the '1955 Act' j as also various amendments made to the said Act upto 1977....

Judgment text

SRI SRI KALIMATA THAJ(URANI & SRI SRI RAGHUNATH JEW & ORS. ETC. v. UNION OF INDIA & ORS. February 20, 1981 [S. MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ. ] West Bengal Land Refornzs Act, 1955, S. 2(8) Proviso and Explanation, S. 20B(3), (4) and (5); West Bengal Land Reforms (Amendment) Act, 1972 & U'e. H Bengal Land Reforms (Ame11dn11ent) Ac1, 1977-Constitutional validity of. ~ Constitution of India, 1950, Articles 14, 19(l)(e), (g) and Nimh Schedule Entry Nos. 60 and 81-Violation of Fundamental Rights-Complaint of-Court . to determine whether restrictions contain quality of reasonableness. The West Bengal Land Reforms Act, 1955 permitted a tenant (land-holder} to get the land cultivated by a bargadar, on the basis that the bargadar would share the produce, and the Act contained provisions for enforcement of the right of the tenant to get such share.

Section 17 permitted the tenant to terminate the cultivation of the land by a bargadar and resume possession for his own cultivation on certain contingencies, one of them being that he requires it bona fide for personal cultivation. The West Bengal Land Reforms (Amendment) Act, 1972 provided for the reduction in tho ceiling area of the tenant, and incorporated sub-sections (3), (4) and (5) of section 20B of the 1955 Act, which provided that where the bargadar had voluntarily surrendered or abandoned the cultiYation of the land, the facility of cultivating the land personally by the tenant should be denied to him.

The West Bengal Land Reforms (Amendment) Act 1977 inserted a Provis<> and an Explanation to clause (8) of section 2 of the 1955 Act, which provided P that a person or member of his family should reside in the greater part of the year in the locality where the land is situated and the principal source of his in- \ come is derived from the land and that 'family' shall have the same meaning as •in clause (c) of section 14. The petitioners in their writ petitions to this Cou1t assailed : ( 1) The West Bengal Land Reforms Act, 1955 as also amendments made to the said Act uptO' 1977, contending that the 1955 Act \Vas constitutionally invalid and that the Amendment Act of 1972 was in the nature of a Ceiling Act prescribing a particular ceiling for the area of the land which should be retained by the tenant and that sub-sections (3), (4) and (5) of s.

20B of the 1955 Act were violative of Article 14 of the Constitution, as being discriminatory and arbitrary Once the tenant was given the right of personal cultivation and was permitted to get the land cultivated by a bargadar on the basis. that the bargadar would share the produce, there was no warrant for not allowing the tenant to resume the land where a bargadar had voluntarily surrendered or abandoned the land and to deny the right of cultivating the land personally by the tenant, and (2) the Provis<> KALIMATA THAKURANI v. UNION 951 and the Explanation to section 2 of the 1955 Act deprive the petitioners of their rights guaranteed under Article 19(1) (e) and (g) of the Constitution in as much as it prevents them from either going to or residing in any other place in India and places a serious curb on their right to carry on an occupation other than agriculture.

On behalf of the respondents it was submitted that the rigour of sub-sections (3) and (4) can be softened if clause (d) of section 17 is read down and interpreted in a way as to permit a tenant to resume the land under clause (d) of section 17 if the bargadar voluntarily surrenders or abandons the land. Dis. missing the writ petitions : HELD: l(i). The West Bengal Land Reforms Act, 1955 including the Amendment Act of 1972 and the proviso introduced by the Amendment Act of 1977 are constitutionally valid. [961 G] In the· instant case the 1955 Act and the Amendment Act of 1972 having been added to the Ninth Schedule as Entry Nos. 60 and 81 prior to April 24, 1973, are immune fron1 challenge as being violative of Part III of the Constitution. [954 Al Waman Rao & Ors. v. Union of India & Ors. , AIR 1981 SC 271, referred to.

0 (ii) Clauses (a), (b) and (c) of sub-section (1) of section 17 of the 1955 Act are the only grounds on which a tenant can get the land back for his per~ sonal cultivation. The -'Piltingency where the bargadar voluntarily surrenders or abandons the land is neither mentioned, nor directly or indireCtly contemplated by them. The contention of the respondent cannot be accepted for it would introduce something into section 17 \Vhich is not there and this is diametrically opposed to the well-known canons of interpretation. [956 D-E) (iii) There is no logical justification for the provisions of sub-sections (3) and (4) of section 20B. When once the cultivator chooses to bring a bargadar on the ]and the interest of the bargadar is protected and has been made heritable.

But when the bargadar on his own volition surrenders or abandons the land~ there is no reason why the tenant should not be allowed to resume cultivation and p instead be compelled to get the land cultivated by some other person nominated by the authority concerned under section 49 of the 1955 Act. This provision, therefore, appears to be extremely harsh and works serious injustice to the rights of the tenants particularly after the ceiling area of the tenant has been considerably reduced by the Amendment Act of 1972. [956 F-G] (iv) Though the provisions of sub-sections (3), (4) and (5) of section 20B perilously border on arbitrariness and a-mount to serious curbs on the fundamental right of the cultivator to pursue his occuption, they cannot be struck down because thev are contained in the Amendment Act of 1972 which has been placed in th~ Ninth Schedule prior to April 24, 1973.

It will, however, be for the legislature which is the best judge of the needs of its people to give, a suitable relief to the tenant and soften the rigours of these harsh provisions. [957 C-Dl (2)_ The object of the proviso is to safegu&rd the interest of the tenant himself S•. 1 that he may give wholehearted attention to the personal cultivation of the land. The proviso does not debar him from following any other occupation but once a tenant wants to have the land to himself for personal cultivation he must elect whether to pursue the profession of cultivation or some other occupation. Thus, even though there is some amount of restriction both on the right of the petitioners to reside or follow any other occupation, such a restriction cannot be said to be arbitrary or unreasonable.

[958 C, E-Fl In the instant case the restriction does not amount to complete deprivation of the right of the tenant to reside elsewhere' because the words 'for the greater part of the year' leave sufficient scope to the tenant to residei elsewhere for a part of the year if he so desires. It is not necessary that the. tenant should himself reside in the viilage for the greater part of the year. It is sufficient if any member of the family which includes his wife, unmarried adult, married adult, minor son and so on remains in the village. This would amount to substantial ·C compliance of the conditions of the proviso. The restriction, therefore, is partial and in public interest. [958 G, 959 DJ (3) Whenever a complaint of violation of fundamental rights is made the Court has to determine ~·hether or not the restrictions imposed contain the quality of reasonableness.

In assessing these factors a doctrinaire approach should nut be made but the essential facts and realities of life have to be duly considered. Our Constitution aims at building up a socialist state and the cstabiishment of an egalitarian society and if reasonable restrictions are placed on the fundamental rights in public interest, they can be fully justified in law. [959 F-G] State o! A1adra~ v. Jr. G. Row, [1952] SCR 597, referred to. (4) As the proviso operates equally to all the tenants governed by it no question of discrimination arises. ·[961 F] ORIGINAL JURISDICTION: Writ Petition Nos. 1345, 1635/79, 458, 935. 1418 and 1692/80. Under Article 32 of the Constitution. Sukumar Ghosh for the Petitioners in WP No. 1345/79. S. N. Kacker, Govinda Mukhoty and Rathin Das for the Respondent in WP No. 1345/79. P. Keshva Pillai for the Petitioner in WP No. 1635/79. Rathin Das for Respondent No. 2 and Ors. In WP No. 1635/79. Bimal Kumar Datta, Mrs. L. Arvind and A. K.

Sen Gupta for the Petitioner in WP No. 458/80. S. N. Kacker and Rathin Das for Respondent No. 2 and Ors. in WP No. 458/80. S. C. Majumdar, Bimal Kumar Datta, Mrs. L. Arvind and A. K. Sen for the Petitioner in WP No. 935/80. KAL! MATA THAKURANI v. UNION (Fazal Ali, J. ) 953 Sripal Singh for the Petitioners in WP No. 1418 of 1980 and ,1692/80. Rathin Das ! or Respondent Nos. 2 and Ors. in WP Nos. 935, 1418 & 1692/80. The Judgment of the Court was delivered by FAZAL ALI, J. These petitions under Article 32 of the Constitution have been filed in order to challenge the vires of the West Bengal Land Reforms Act, 1955 (hereinafter referred to as the '1955 Act' j as also various amendments made to the said Act upto 1977. The first plank of argument related to the constitutional validity of the 1955 Act. The second plank of argument was confined to the validity .

of the West Bengal Land Reforms (Amendment) Act, 1972 (hereinafter referred to as the 'Amendment Act of 19720 which was in the nature of a ceilhig Act prescribing a particular ceiling of the area of land which,,sould be retained by the tenant. So fur as the Ceiling Act, viz. , the Amendment Act of 1972 is concerned, it is conceded by the counsel for the petitioners that the constitutional validity of the aforesaid Act is clearly concluded by a recent decision of this Court in Waman Rao & Ors. v. Union of India & Ors. (1) where a Constitution Bench of this Court rejected the various grounds of challenge in respect of the constitutionality of various ceiling Acts passed by the. States concerned. In view of this decision the learned counsel for the petitioners was fair enough to state that he does not want to press his contention regarding the constitutional validity of the Ceiling Act.

Similarly, tho learned counsel for the petitioners fairly conceded that as the 1955 Act, alongwith its amendments upto 1972, has been placed in the Ninth Schedule of the Constitution, it was immune from challenge and was saved by the protective umbrella contained in Art. 3lB of the ·Constitution. In this cQrulection, this position was made absolutely ·cl. ear in Wanum Rao's case (supra) where this Conrt observed as follcw~ : "Thus, in so far as the validity of Article 3lB read with the Ninth Schedule is concerned, we hold that all Acts and Regulations included in the Ninth Schedule prior to April 24, 1973 will receive the full protection of Article 3lB. Those laws and regulatians will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution.

" (l) AIR 1981 SC 271 In the instant case, it is clear that the 1955 Act as also the Amendment Act of 1972 were added to the Ninth Schedule, being entry Nos. 60 and 81, prior to April 24, 1973. In these circumstances, it is manifest that the aforesaid Acts arc completely immune from challenge on the ground that they are violative of any of the rights enshrined in Part III of the Constitution. The learned counsel for the petitioners, therefore, was fully justified in making the concession before us. The argument of the learned counsel for the petitioners in W. P. No. 1345 of 1979, which has been adopted by the counsel for the petitioners appearing in other petitions, centres round the validity of- (1) The West Bengal Land Reforms (Amendment) Act, 1977 (published in the Gazette Extraordinary on 3-2-1978), and (2) Section 20B, sub-sections (3), (4) and (5), of the 1955 Act.

So far as the challenge to the constitutional validity of this section was concerned, it was confined only on the ground that the said sub-sections were violative of Art. 14 of the Constitution of India as being discriminatory and arbitrary. It was contended that once the land holder, viz. , the tenant was given the right of personal cultivation and was permitted to get the land cultivated by a Bargadar on the basis that the bargadar would share half the produce, there was no warrant for not allowing the tenant to resume the land where the bargadar had voluntarily surrendered or abandoned the land. In order to consider this argument, it may be necessary to examine the status of the bargadar under the 1955 Act.

Section 2(2) defines bargadar thus: "'Bargadar' means a person who under the system generally known as adhi, barga or bhag cultivates the land of another person on condition of delivering a share of the produce of such land to that person and includes person who under the system generally known as kisani cultiv~tes the land of another person on condition of receiving a share of the produce of such land from that person. " Section 16 of the 1955 Act provides that where the tenant brings in a bargadar on the land, the produce of the land may be shared in the proportion of 50 : 50 or 75: 25. There are also provisions in the 1955 Act for enforcement of the right of the tenant to get his share of the produce from the bargadar which have not been challenged before us. It would be seen that s. 17 permits the cultivator to· terminate the cultivation of the land by a bargadar and resume possession under his own cultivation if the conditions mentioned in clauses· KALIMATA THAKURANI v.

UNION (Fazal Ali, J. ) 955 (a), (b) and (d) of sub-section (1) of s. 17 are satisfied. Clause A ;! O~ (Fazal Ali, J. ) 959 (ii) his unmarried adult son, if any, who does not hold any land as a raiyat, (iii) his married adult son. if any, where neither such adult son nor the wife nor any minor son or unmarried daughter of such adult son holds any land as a raiyat, (iv) widow of his predeceased son, if any, where neither such widow, nor any minor son or unmarried daughter of such widow holds any land as a raiyat, (v) minor son or unmarried daughter, if any, of his predeceased son, where the widow of such predeceased son is dead any minor son or unmarried daughter of such predeceased son does not hold any land as a raiyat, but shall not include any other person.

" Thus, it is not necessary that the tenant should himself reside in the village for the greater part of the year and it is sufficient if any member of the family which includes his wife, unmarried adult married adult, minor son and so on, remains in the village and this would amount to substantial compliance of the conditions of the proviso. The restriction, therefore, is partial and in pnblic interest and bears 'a close nexus with the object of the 1955 Act, viz. , to achieve agrarian reforms. The fundamental rights enshrined in Art 19 of the Constitution are not absolute and unqualified but are subject to reasonable restrictions which may be imposed under sub-clauses (4) and (5) of Art 19. Whenever a complaint of violation of fundamental rights is made the Court has to determine whether or not the restrictions imposed contain the quality of reasonableness.

In assessing these factors a doctrinaire approach should not be made but the essential facts and realities of life have to be duly considered. Our Constitution aims at building up a socialist state and the establishment of an egalitarian society and if reasonable restrictions are placed on the fundamental rights in public interest, they can be fully justified in law. Tue principles laying down the various tests of reasonablene~s have been very aptly enunciated in the case of State of Madras v. 1 V. G, Row( ) which is almost the locus classicus on the subject in question, In that case Shastri, C. J,, speaking for the Court observed as follows :- "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be (I) [1952) S. C. R. 597.. ' applied to each individual statute ;mpugned, 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. " The case has been consistently followed by later decisions of this. Court right uptodate. Another important factor to consider the reasonableness of restrictions is if the restrictions imposed are excessive or dispreportionate l to the needs oi a particular situation. Further, if the restrictions are in implementation of the directive principles of the Constitution the same would be upheld as being in public interest because the individual interest must:o yield to the interest of the community at large for only then a welfare state can fiourish.

Applying these tests to the facts of the present case we are satisfied that the restrictions contained in the i1lJiPugned proviso cannot besaid to be unreasonable for the following reasons : The dominant object of the proviso is to abolish 1he ageold institutions of absentee land-holders by insisting that the cultivator to whom land is allotted must give full and complete attention to the soil and as a result of which there will be a maximum utilisation of the agricultural resources which would increase production. Under the Amendment Act of 1972 an adult unmarried person is entitled to hold an area up to 2. 50 hectares which is equal to 6. 72 acres, a tenant with a family of two or more is entitled to hold 12. 36 hectares and a tenant having a family of five or more is entitled to hold 7 hectares which is equal to 12. 23 acres being the maximum area permissible.

Thus, the area left to the tenant is quite vast and appreciable and if the tenant wants to bring this area under cultivation in right earnest it would hardly leave him time to quit the village and pursue other avocations of life. It is obvious that the tenant has to remain in the village for the purpose of cultivating the lands, sowing the seeds, growing it and harvesting it. These processes would doubtles11 require the presence of the tenant for a greater part of the year which i11 what the proviso predicates. If the KALIMATA THAKURANI v. UNION (Fazal Ali,/. ) 961 tenant is permitted to leave the village for more than half the year then the very purpose of giving such a vast area for cultivation to a tenant will be foiled.

Moreover, the proviso merely insists that the tenaut should remain in the village or its periphery for "greater part of the year" which appears to be not only reasonable but absolutely essential if the land has to be cultivated in a scientific manner in order to yield the maximum possible production, which would result in better and equitable distribution of agricultural products for the use of the people of the country. Another aspect of the proviso is that the land is given to the tenant only if his main source of sustenance is from agriculture so ' that the land may be reserved only for the tiller of the soil and none else. Hence, the restrictkms imposed, therefore, by the proviso are undoubtedly in public interest and in consonance with the concept of promoting and accelerating agrarian reforms which is the prime need of the hour. For these reasons, therefore, the challenge that the proviso violates Art. 19(1) (e) and (g) must fail.

The last contention put forward by the petitioners was that the proviso is also violative of Art. 14 inasmuch as it is extremely arbitrary and discriminatory. We are unable to uphold the challenge on the ground that the proviso violates Art. 14 because we do not find any element of arbitrariness in the proviso. If the statute insists that the tiller of the soil must remain in the village for a greater part of the year in order to cultivate the land which has been given to him and thereby increase the produce of the land, no serious prejudice is caused to the tenant because that is the purpose for which he has himself secured the land. Secondly, as the proviso operates equally to all the tenants governed by it no question of discrimination at all arises. Thus, this argument also is wholly untenable and must fail.

For the reasons given above, we hold that both the Act of 1955, including the Amendment Act of 1972, and the proviso introduced by the Amendment Act of 1977 are constitutionally valid. As we have made certain observations regarding the harshness of the provisions of sub-sections (3), (4) and (5) of s. 20B of the 1955 Act, 1 let a copy of this judgment be sent to the Hon'ble Chief Minister of West Bengal. The petitions are dismissed without any order as to costs. N. V. K. Petitions dismissed. 14-214SCI/81