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TMI Blog1980 (5) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... declared surplus after leaving the permissible area to the appellant or petitioner. Having regard to these aspects, particularly the meagre rate of the annual land tax payable, the fetter imposed on the right of appeal/revision, even in the absence of a provision conferring discretion on the appellate/revisional authority to relax or waive the condition, cannot be regarded as onerous or unreasonable. The challenge to s. 18(7) must, therefore, fail. - CIVIL APPEAL NO. 1361 OF 1977 - - - Dated:- 9-5-1980 - Tulzapurkar, V.D.,Chandrachud, Y.V., Bhagwati, P.N.,Krishnaiyer, V.R. And Sen, A.P. M.N. Phadke, Nishat Singh, B. P. Maheshwari, Suresh Sethi, V. M. Tarkunde, Naunitlal and Naurang Singh R. K Mohan and Mrs. Geetanjali Mohan. V. M. Tarkunde, O. P. Malhotra, P. R. Mridul, H. K. Puri JUDGMENT These appeals, by special leave, directed against the Full Bench decision of the Punjab Haryana High Court in Jas want Kaur's case, seek to challenge the vires of some of the pro visions of the Haryana Ceiling on Land Holdings Act 1972 (26 of - 1972) and according to the appellants some of the provisions are pivotal and run through the whole Act and, therefore, the entire Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he last four Acts. Moreover, though the Principal Act as amended by Act 17 of 1976 will be under the protective umbrella of Art. 31- B, the Haryana Ceiling on Land Holdings Rules, 1973 as originally framed or even after amendments, being subordinate legislation and not specified in the Ninth Schedule may not receive such protection (Vide: Prag Ice oil Mills [1978] 3 S.C.R. 293case). After the Principal Act (26 of 1972) was amended as above, several Will petitions were filed in the High Court of Punjab Haryana challenging the vires of some of the provisions of the Act. Since the Principal Act as well as the Amending Act 17 of 1976 had been pul in Ninth Schedule, the challenge was based on the ground that those provisions were vague uncertain, ambiguous and mutually inconsistent and, therefore, should be struck down and neither Art. 31-A nor Art. 31-B of the Constitution could save such provisions. The High Court rejected the plea, and in our view rightly, on the ground that a statute enacted lay a Legislature falling within its competence which did not offend any Fundamental Rights guaranteed by Part III of the Constitution and which did not contravene any other provision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act on grounds substantially different form those that were urged before the High Court. Besides these Civil Appeals, a large number of writ petitions as also petitions for special leave have been filed listed before us where in almost identical points have been raised challenging the provisions of the Principal Act (26 of 19720 as amended from time to time and those also will stand disposed of by this judgment. It is true that since the Principal Act (26 of 1972) as also the first Amending Act 17 of 1976 have been put in the Ninth Schedule, counsel for the appellants have challenged the constitutional validity of Art.31-B as also of the Constitution (34th Amendment) Act 1976 whereby the Principal Act as well as the first Amending Act were put in the Ninth Schedule on the ground that Art. 31-B and these Constitutional Amendments violated the basic structure or features of the Constitution. Similarly since the Principal Act contains the requisite declaration under s.2 thereof that the enactment is for the purpose of giving effect to the directive principles enshrined in Art. 39(b) and (c), counsel for the appellants have also challenged the constitutional validity of Art. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble standard for fixing ceiling in the case of 'primary unit of family' and 'separate unit' produces discriminatory results and according to him since the definition of family is pivotal and occurs in major provisions of the Act such as sections 4(1), 4(3), 7, 8, 9, and 11(1), it will render the whole Act unconstitutional as being violative of Art. 14 of the Constitution. He also urged that these major provisions through which the artificial definition of family runs are not severable and, therefore, the whole Act will have to be struck down. In order to appreciate this contention it will be necessary to examine the relevant provisions of the Act. Section 3(f) defines 'family' thus: "3. (f) 'family' means husband, wife and their minor children or any two or more of them. Explanation I-A married minor daughter shall not be treated as a child." Explanation II is not material for the purpose of the point under consideration. Section 3(1) defines 'permissible area' thus: "3.(1). 'permissible area' means the extent of land specified in section 4 as the permissible area;" Section 3(q) defines 'separate unit' thus: "3(q). 'separate unit' means an adult son living with his pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so owns any land, the same shall be taken into account for calculating the permissible area." On reading the aforesaid provisions, two or three aspects emerge very clearly. In the first place, there is no doubt that for the purposes of the Act the concept of family has been defined in an artificial manner as meaning husband, wife and their minor children and excludes major sons and unmarried daughters. Secondly, under s.4(1) 'the primary unit of family' is confined to five members, namely, husband, wife and their minor children upto three with reference to which permissible area has been prescribed, but under s.4(2), the permissible area is said to increase by one-fifth of the permissible area of the primary unit for each additional member of the family, such as the fourth or fifth minor child etc. but subject to the maximum limit prescribed in the proviso, namely, the permissible area shall not exceed twice the permissible area of the primary unit of the family. Thirdly, in respect of each separate unit, namely, each adult son living with his parents the permissible area will be further increased up to the permissible area of the primary unit of a family under s.4(3), provided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natory. Similar discriminatory result occurs if the adult son is not living with family. Such discriminatory treatment becomes possible because of the artificial definition of family as given in s.3(f) of the Act and because double standard for fixing the permissible area has been prescribed and, therefore, s.4 which prescribes such double standard for fixing the ceiling is violative of Art.14 of the Constitution. In support of his contention, reliance was placed by him upon two decisions of this Court in Karimbil Kunhikoman v. State of Kerala [1962] Supp. 1 S.C.R. 829 and A. P. Krishnasami Naidu v. State of Madras [1964] 7 S.C.R. 82. He pointed out that in the former case the Court was concerned with the provisions of the Kerala Agrarian Relations Act, 1961 where s.2(12) defined family in an artificial manner which did not conform to any of the three kinds of the families prevalent in Kerala State and s.58 fixed the ceiling by adopting a double standard and the Court held that s. 58(1) was violative of Art. 14 and as the section was the basic of the entire Chapter III, the whole Chapter must fall with it. Similarly, in the second case, the Court was dealing with Madras Land Refo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quarely falling with Art.31-A of the Constitution and, therefore, the Act and the concerned provisions would be immune from attack based on Articles 14, 19 and 31 of the Constitution. Secondly, in both these decisions, no material by way of justification was put before the Court on behalf of the State for the adoption of the double standard in the matter of fixing the ceiling read with the artificial definition of the family which resulted in discriminatory results-and this has been specifically mentioned by the Court in both the judgments, while in the instant case on behalf of the State of Haryana, as we shall indicate presently ample material has been produced before the Court justifying the adoption of the artificial definition of family and the double standard for fixing the ceiling negativing the violation of Art. 14. On behalf of the State material in the form extracts from Reports of the Committee on Panel of land Reforms under Planning Commission, (January 1956), extracts from a note prepared in the Land Reforms Division of the Planning Commission (1960), extracts from Second Five Year Plan, Chapter 9 on Agrarian Land Reorganisation, extracts from the Report of the Committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these aspects in view the concept of family was artificially defined and double standard for fixing ceiling, one for the primary unit and other for the adult son living with the family was adopted. In fact, a provision like s.4(3) which makes for the augmentation of the permissible area for a family when the adult sons do not own or hold lands of their own but are living with the family has one virtue, that it ensures such augmentation in the case of every family irrespective of by what personal law it is governed and no discrimination is made between major sons governed by different systems of personal laws. So far as an adult son living separately from the family is concerned, he is rightly regarded as a separate unit who will have to file a separate declaration in respect of his holding under s.9 of the Act and since he is living separately and would not be contributing his capacity to the family to cultivate the family lands personally there is no justification for increasing the permissible area of the primary unit of the family. The case of an unmarried daughter or daughters living with the family, counsel pointed out, was probably considered to be a rare case and it was pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him and also of land, if any, held by other members of the family and the separate unit. Under sub-s.(4) (c) such declaration in the case of a family is required to be furnished by the husband, or in his absence, by the wife, or in the absence of both, by the guardian of minor children. It was urged that since the husband has been given the right to furnish the declaration as also to make the selection of the lands within the permissible area which he desires to retain, the husband can, while making the selection, give away his wife's land as surplus, and this was discriminatory against wife who might lose her land declared as surplus. We do not find any substance in this contention. In the first place, the selection of permissible area which is desired to be retained will ordinarily be guided by the consideration of retaining the best quality land with the family, be it of the husband or of the wife or even of the minor children, and not by the consideration as to whose land should be sacrificed. But, apart from this aspect of the matter, its preciously to meet such situation that s.11(2) has been enacted which provides that the land so retained as permissible area of family a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for some of the appellants in these appeals challenged the vires of some of the Rules, particularly Rule 5(2) of the Haryana Ceiling of Land Holdings Rules 1973 framed under s. 31 of the Act on several grounds. He contended that effective ceiling has been brought about by the Rules and not by Sections of the Act, that Rule 5(2) was a clear instance of excessive delegation of the essential legislative function, that Rule 5(2) goes beyond the scope or ambit of and is, therefore, ultra vires s.4(1), that it was wrong to think that 'prescribed manner' was only to be found in Rule 5(2) (a) and not in Rule 5(1) and that, in fact, in its working Rule 5(2) (a) does the reverse of what Rule 5 (1) lays down, that is to say, instead of first converting various categories of land of a person into 'C' category and then permitting him to select an area equivalent to 21.8 hectares (=54 acres) of such converted 'C' category land so that his remaining land shall be treated as surplus area, Rule 5(2) first converts all irrigated lands into 'A' category wrongly, and then by subtracting it from the rest of the land, declares that the remainder shall be 'C' category land. In order to appreciate these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evaluation of the lands held by a person for determining his permissible area one is required to turn to the Rules made in that behalf being Rules 5(1) and 5(2) of the Haryana Ceiling on Land Holdings Rules 1973, for s.4(4) only says that evaluation is to be made in the 'manner prescribed' which must mean the manner prescribed by Rules Rule 5(1) runs thus: "5.(1) the land held by a person shall be evaluated by converting various categories into C category land according to the following formula:- 1 unit of 1.25 units of 1.5 unit of 3 units of A category land AA category land - B category land - C category land Such person shall be allowed to select an area equivalent to 21.8 hectares of C category land as permissible area and the remaining land shall be treated as surplus area." Rule 5(2) runs thus: "5. (2) Land irrigated by Canal/Government Tubewells.-In case the land is irrigated by canal or Government tubewell,- (a) where land is commanded for irrigation by a perennial canal, the area of such land shall be multiplied by half of the irrigation intensity ratio specified against each canal in Schedule 'A' appended hereafter. The figure thus arrived at shall be treated as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uck down. It is impossible to accept this contention for the simple reason that fixation of the extent of permissible area has been actually done by s. 4(1) itself inasmuch as the said provision apart from dividing land into three categories prescribes and fixes the extent of permissible area in respect of each of the three categories, the extent being mentioned against each and it is merely the basis of evaluation to be made for determining the permissible area that is left for being prescribed by Rules. The contention is, therefore, devoid of any substance. It was next contended by him that Rule 5(2)(a) goes beyond s. 4(1) of the Act inasmuch as by its application it produces the effect of reducing the permissible area of a person from 21.8 hectares (=54 acres) to only 13.88 hectares (=34 acres) as would be clear from illustration No. 1 given under Rule 5(2) (a) and as such the Rule is ultra vires s. 4(1). He also urged that 'prescribed manner' was to be found both in Rule 5(1) and 5(2) but in its working Rule 5(2) does the reverse of what Rule 5(1) lays down. In our view these contentions proceed on a misconception of the functional role of these Rules and a misunderstanding r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as suggested. In that illustration certain basic facts are assumed to exist, namely, the person is holding 25 hectares of land commanded for irrigation by a perennial canal the irrigation intensity ratio whereof is 57% and on these facts the illustration works out his permissible area. First by applying the mathematical formula given in Rule 5(2)(a) the extent of 'A category land' is computed at 7.12 hectares. (Incidentally the very fact that 25 hectares of land commanded for irrigation by a perennial canal having the irrigation intensity ratio of 57% can comprise 'A category land' upto 7.12 hectares negatives the other contention of counsel for the appellants that to have 'A category land' the canal must have intensity ratio of 200% per annum or to have 'B category land' the canal must have intensity ratio of 100% per annum or that any land irrigated by a canal having less than 100% per annum intensity ratio must be categorised as 'C category land'.) Therefore, after deducting 7.12 hectares as 'A category land' out of 25 hectares, the balance 17.88 hectares is said to be 'C category land'. Then by applying the equating formula in Rule 5(1) his entire holding of 25 hectares is conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertained only on the appellant or the petitioner depositing with the appellate or the revisional authority a sum equal to 30 times the land holdings tax payable in respect of the disputed surplus area. Under sub-s. (8) it was provided that if the appellant or the petitioner coming against the order declaring the land surplus failed in his appeal or revision, he shall be liable to pay for the period he has at any time been in possession of the land declared surplus to which he was not entitled under the law, a licence fee equal to 30 times the land holdings tax recoverable in respect of this area. On 6th June, 1978, the Act was further amended by Amending Act 18 of 1978 whereby the rigour of the condition imposed under sub-s. (7) was reduced by permitting the appellant or the petitioner to furnish a bank guarantee for the requisite amount as an alternative to making cash deposit and while retaining sub-s. (8) in its original form, a new sub-s. (9) inserted under which it has been provided that if the appeal or revision succeeds, the amount deposited or the bank guarantee furnished shall be refunded or released, as the case may be but if the appeal or revision fails the deposit or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fourthly, the deposit to be made or bank guarantee to be furnished is confined to the land holdings tax payable in respect of the disputed area i.e. the area or part thereof which is declared surplus after leaving the permissible area to the appellant or petitioner. Having regard to these aspects, particularly the meagre rate of the annual land tax payable, the fetter imposed on the right of appeal/revision, even in the absence of a provision conferring discretion on the appellate/revisional authority to relax or waive the condition, cannot be regarded as onerous or unreasonable. The challenge to s. 18(7) must, therefore, fail. It may be stated that relying on Kunjukutty Sahib's case counsel for the appellants also challenged s. 8(3) of the Act on the ground that it violates the second proviso to Art. 31-A. The Act including said provision having been included in the Ninth Schedule will receive the protection of Art. 31-B and since the challenge to the constitutional validity of Art. 31-B is being separately dealt with it is unnecessary to deal with the contention here. In the result all the Civil Appeals, Writ Petitions and Petitions for Special Leave are dimissed. There will be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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