YOGESHWAR Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is an application by the petitioner who is a landlord of an agricultural land and seeks to challenge the vires of certain sections of the J&K Tenancy Act (hereinafter to be referred to as the Act) as amended by Act XIV of 1965. Although in the petition the petitioner has challenged a number of provisions of the amendments aforesaid, yet in the course of hearing before us he confined his arguments to challenging the validity of S. 47(3) as inserted by the amendment Act XIV of 1965 of the Act.

(2.) IN order to appreciate the contention raised by the petitioner it may be necessary to set out the history of the tenancy legislation in the State. It is extremely encouraging to note that the legislature in the State achieved the abolition of the Zamindari and the ceiling much earlier than was done in the other parts of India. By the J&K Big Landed Estates Abolition Act the landlords interest was completely abolished except orchards and a ceiling of 182 kanals per head was fixed. The tenant of the land was given proprietory rights of the land taken away from the landlords. Within the short range of 182 kanals that a landlord could possess under the Big Landed Estates Abolition Act, he had complete proprietory rights which were further regulated later on by subsequent Amendments to the Act. It is not necessary for us to refer to the other incidents of the rights of the landlord because the point germane to the present case is regarding the right conferred on the landlord by S. 44(l)(e) of the Act by which he was entitled to eject a tenant on the ground of personal cultivation. This section runs thus. "No tenant shall be liable to be ejected from his tenancy except on the following grounds: - (e) that the landlord requires the land for his personal cultivation. Explanation: personal cultivation shall include cultivation by any of the member of the family of the landlord". A perusal of the provisions of this section would clearly show that the landlord was given a statutory right to eject a tenant where he required the land for personal cultivation either for himself or for the member of his family. It cannot be denied that this is a valuable right and an important incident of the ownership rights conferred on the landlord by virtue of the Act. The legislature by virtue of the impugned Amendment sought to take away this right completely and provided that all suits pending for eviction against the tenant on the ground of personal cultivation would automatically abate. S. 47 is the provision which provides for the procedure for eviction and the amendment has added the following sub -Sec. (3) to this section: - No suit shall lie for the ejectment of a tenant by the landlord for resumption of land for personal cultivation and all such suits pending on the day of the commencement of the J & K Tenancy (Amendment) Act, 1965 shall abate". The effect of the introduction of sub -S. (3) in S. 47 of the Act is to completely obliterate the right of ejectment of a tenant on the grounds of personal cultivation as given in S. 44(l)(e) of the Act. In other words after the coming into force of the Amendment, S. 44(e) is put completely out of the way and the right conferred on the landlord by this section is completely destroyed. The learned counsel for the petitioner submitted that such a complete destruction of the right of the landlord amounted to a serious invasion and infringement of his fundamental right to hold property which has been guaranteed by Part III of the Constitution of India. The learned counsel further submitted that it is well -settled that the right to hold property carries with it the right to recover possession or the right to enjoy actual occupation and possession from the tenant. In support of his argument the learned counsel cited AIR 1951 Cal. 539 and AIR 1952 Madras 203 which no doubt support his contention. We fully agree with the learned counsel for the petitioner that the Amendment by taking away one of the important rights of the landlord to get physical possession of the land clearly infringes the right to hold property possessed by the petitioner under Art. 19(f) of the Constitution of India. The only question that has to be determined is whether or not the amendment can be justified by the provisions of the Constitution. In this connexion it may be necessary for us to notice the argument advanced by the Addl. Advocate General for the State. The Additional Advocate General sought to repel the argument of the petitioner on three grounds. In the first place he submitted that the Act having been included in the 9th schedule to Art. 31 -B of the Constitution of India was immune from challenge. The argument was that since the Act itself had been saved by Art. 318 and the 9th schedule any amendment made from time to time would be deemed to have been saved by this provision. We are however, unable to agree with this contention. To begin with there is no doubt that the Act finds a place in the 9th schedule of Art. 31 -B as applied to the State and is therefore immune from challenge. But the Act was included in the 9th schedule admittedly before the amending Act XIV of 1965. The present amendment as discussed above is not of a clerical nature but of a substantial character and seeks to bring about an important and substantial amendment in the proprietory rights of a landlord. Furthermore it was rightly contended by Mr. Bhalgotra for the petitioner that even if the original Tenancy Act was included in the 9th schedule then S. 44(l)(e) which conferred a right on the landlord to eject the tenant on the ground of personal cultivation stood guaranteed and could not be altered by any amendment by the State legislature. We find overselves in complete agreement with this argument and hold that the amending Act XIV of 1965 cannot be said to have been protected by Art. 31 -B and the schedule thereto merely because the parent Act has been included in the schedule. Secondly it was contended by the Addl. Advocate General that the question as to whether there has been an infringment of the fundamental rights by the amendment is not justiciable because Art. 19 has been applied to the State in a limited form and all statutes passed after the application of Art. 19 must be presumed to contain reasonable restrictions. It is true that Art. 19 has been applied to the State with certain limitations. The relevant portion of the Constitution (Application) order 1954 runs thus: - "In its application to the State of Jammu and Kashmir for a period of 15 years from the 14th May 1954, Art. 19 shall be subject to the following modifications: - (i) in clauses (3) and (4), after the words "in the interests of" the words "the security of the State" shall be inserted. of the interests of any schedule tribes" the words "or in the interests of the security of the States" shall be substituted and (iii) the following new clause shall be added namely (7) the words "reasonable restrictions" occurring in clauses (2), (3), (4) and (5) shall be construed as meaning such restrictions as the appropriate legislature deems reasonable". Stress was laid by the Addl. Advocate General on sub -clause (3) of para 7 wherein it has been clearly stated that reasonable restrictions shall be construed as meaning such restrictions as the appropriate legislature deems reasonable. A plain interpretation of this provision clearly indicates that where the legislature has applied its mind and has specifically stated in the Act that a particular restriction should be deemed to be reasonable, then the matter is not justiciable but not otherwise. The question whether or not the statute concerned is prior to the application of this order or after would really make a difference. Any curb or restriction on the fundamental rights of a citizen must be scrutinized with great care and the law must be confined to its very letter and spirit. It is true that in AIR 1963 J&K 27 a Div. Bench of this court while considering a similar argument regarding the validity of the right of Prior Purchase Act on the ground of contiguity held that the limitation in para 7 referred to above of the Application Order could not apply to pre -constitution Acts. In this connexion their Lordships observed as follows: - "Secondly from the mere existence of a pre -constitution enactment we cannot assume that the legislature had deemed the restrictions therein contained to be reasonable restrictions vis -a -vis fundamental rights embodied in Art. 19. The question of the legislatures deeming certain restrictions to be reasonable can arise only in the context of the fundamental rights guaranteed under Art. 19. At a time when these fundamental rights were not in existence and were not heard of one cannot attribute to the legislature the impossible intention of imposing restrictions on the fundamental rights which were then unborn and unknown or of regarding any restriction as a reasonable fetter on a fundamental right. Clause (7) could therefore be pressed into service by the legislature only after the fundamental rights came into being". This decision, however, has not laid down that in the case of post -Constitution Acts in the absence of there being any statement by the legislature deeming the restriction to be a reasonable one the matter could not be justiciable. On the other had in a recent decision of the Full Bench of this court in Sewa Nath V. Faqir Chand, AIR 1965 J&K 62 -68 Bhat. J. speaking for the court clearly pointed out that unless there is a declaration by the legislature in the Act deeming the restriction to be reasonable the matter would be justiciable and no presumption in favour of the reasonableness of restriction would be drawn on this account. Bhat J. observed as follows: "The second point that has to be kept into consideration is that the constitution is prospective and not retrospective. Therefore the question of deeming any restriction as reasonable would arise only after the Constitution was made applicable to the State of J & K. If the legislature of the State, after the application of the Indian Constitution to it, considers any particular restriction as reasonable, that cannot be justiciable in a court of law. But unless the legislature expressly after the application of the Constitution to the State applies its mind to any restriction and then deems it reasonable, this argument is not available". We are in complete agreement with the aforesaid Full Bench decision and we endorse the same. Our view is further fortified by the fact that there are some Acts where the legislature has in fact declared its intention by making express statement that the restriction would be deemed to be reasonable which is the case with the J & K Alienation of Land (Temporary Restriction) Act, 1959, where S. 6 declares as follows: - "For the removal of doubts it is hereby declared that the restriction imposed by this Act on the rights conferred by Clause (1) of Art. 19 of the Constitution of India as applied to the State shall be deemed to be and shall be deemed always to have been reasonable restriction". A similar declaration is contained in the J & K Preventive Detention Act. It is therefore reasonable to infer that where no such declaration is made by the State legislature the matter is justiciable and the court can examine the question as to whether or not a particular statute infringes fundamental rights and whether the infringement can be said to be a reasonable restriction.

(3.) IN the present case we are unable to hold that the restriction imposed on the right of a landlord is a reasonable restriction within the various clauses of Art. 19 of the Constitution of India. In fact the Big Landed Estates Act abolished Zamindari and placed a ceiling. The Landlords were thus left only with 182 kanals of land,some of which was in their possession and some in fact the Big Landed Estates Act abolished zamindari and placed a ceiling. The landlords were thus left only with 182 kanals. Even this right was taken away and completely destroyed. It is difficult to hold that this was reasonable restriction so as to come within sub -clauses (5) and (6) of Art. 19 of the Constitution of India. The argument of Addl. Advocate General on this score is therefore over -ruled.