1947 (2) TMI 19 - HC - Indian Laws

Summary

Issues Involved:

1. Validity of the Punjab Restitution of Mortgaged Lands Act, 1938.
2. Legislative competence of the Punjab Legislature under the Government of India Act, 1935.
3. Applicability of Sections 100 and 107 of the Government of India Act, 1935.
4. Scope of the term "Land" under Item 21 of the Provincial Legislative List.
5. Jurisdiction of the Collector under the impugned Act.
6. Repugnancy with existing Indian laws.

Issue-wise Detailed Analysis:

1. Validity of the Punjab Restitution of Mortgaged Lands Act, 1938:

The primary question was whether the Punjab Restitution of Mortgaged Lands Act, 1938 (Punjab Act IV of 1938), was ultra vires of the Punjab Legislature. The appellants, as mortgagees, sought a declaration that they were mortgagees in possession and that the defendants (mortgagors) were not entitled to redeem the lands without full payment of the mortgage debt. They also sought an injunction to restrain the defendants from prosecuting their petition for redemption under the impugned Act.

2. Legislative Competence of the Punjab Legislature under the Government of India Act, 1935:

The main points of objection were based on Sections 100 and 107 of the Government of India Act, 1935. Section 100 delineates the distribution of legislative powers between the Federal and Provincial Legislatures, categorizing subjects into three lists: Federal, Provincial, and Concurrent. The respondents contended that the impugned Act fell wholly within Item 21 of the Provincial Legislative List, which pertains to "Land, that is to say, rights in or over land, land tenures, including the relation of landlord and tenant, and the collection of rents; transfer, alienation and devolution of agricultural land; land improvement and agricultural loans; colonisation; Courts of Wards; encumbered and attached estates; treasure trove."

3. Applicability of Sections 100 and 107 of the Government of India Act, 1935:

The appellants argued that the impugned Act was beyond the legislative powers of the Province under List II and could not be supported by invoking concurrent powers under List III due to repugnancy with existing Indian laws such as the Indian Contract Act and the Code of Civil Procedure. However, it was determined that Section 107, which deals with repugnancy, did not apply if the Province acted wholly within its powers under the Provincial List.

4. Scope of the Term "Land" under Item 21 of the Provincial Legislative List:

The term "Land" in Item 21 was interpreted broadly to include every form of land, whether agricultural or not. It was emphasized that land is primarily a matter of provincial concern, and the legislative powers of the Province should receive the widest construction unless restricted by other parts of the Constitution. The term "rights in or over land" was deemed to include general rights like full ownership or leasehold, as well as collateral rights such as easements.

5. Jurisdiction of the Collector under the Impugned Act:

The impugned Act provided a procedure before the Collector for the restitution of mortgaged lands. Sections 7 and 8 of the Act outlined the conditions under which the Collector could order the extinguishment of the mortgage and the restoration of possession to the mortgagor. The Act was limited to agricultural land and included specific provisions for compensation to the mortgagee based on the duration of possession.

6. Repugnancy with Existing Indian Laws:

The appellants contended that the impugned Act was repugnant to existing Indian laws such as the Indian Contract Act and the Code of Civil Procedure. However, it was determined that the Act did not deal with wills or the transfer of property but rather with mortgages, which are incidental to the entry of "land" under Item 21. Therefore, the Act was within the legislative competence of the Province, and questions of repugnancy under Section 107 did not arise.

Conclusion:

The impugned Act was held to be within the powers given to the Province by Items 2 and 21 of List II, and there was no necessity to invoke any powers from the Concurrent List. The appeal was dismissed, and the appellants were ordered to pay the costs of the appeal.