S SANT SINGH Vs. STATE OF J&K

JUDGEMENT

(1.) THESE revenue appeals and the writ petition raise common questions relating to the constitu ­tional validity of Ss. 15 -A, 16 1. 1 a., 19 -B, 45, 47 and 49 of the Jammu and Kashmir Tenancy Act II of 1980., hereinafter referred to as the Act. These provisions were inserted in the original Act by amending Act S. 16 1. 1 a. by the amending Act VII of 2005 and the rest by the amending Act XII of 1955. The challenge to their validity is based on Arts. 14, 19 1. f., 19 1. g., and 31st of the Constitution of India as applied to the State of Jammu and Kashmir.

(2.) THE Advocate -General appearing for the State contends that the impugned provisions are immune from challenge by virtue of Art. 31B. If this contention succeeds, it will be unnecessary to go further into the merits of the attack made against the provisions. We have therefore first to consider whether the provisions in question are protected by Art. 31B. This Article expressly states that none of the Acts and Regulations specified in the Ninth Sche ­dule nor any of the provisions thereof, shall be deemed to be void or ever to have become void on the ground that such Act, Regulation or provi ­sion is inconsistent with or takes away or abridges any of the rights conferred by any provisions of Part III of the Constitution and that notwithstand ­ing any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent legislature to repeal or amend it, con ­tinue in force. The President by Order made in exercise of the powers conferred by Cl. 1. of Art. 370 of the Constitution inserted the Jammu and Kashmir Ten ­ancy Act II of 1980. in the Ninth Schedule in its application to the State. This order called the Constitution Application to Jammu and Kashmir. Order, 1954 came into force on 14 -5 -1954. The effect of the insertion of the Jammu and Kashmir Tenancy Act in the Ninth schedule is to save it from attack on any ground based on any of the provisions of Part III of the Constitution. The Advocate General therefore argues that all the provisions of the Act, irrespective of whe ­ther they were inserted by amending Acts enacted before or after 14 -5 -1954 when the Presidents Order came into force, should be held to be pro ­tected by Art. 31B. If this argument is correct, it will be open to the State Legislature to make any drastic amendment to the Act at any time and claim protection for it under Art. 31B, although the amended provisions were never before the President and their eligibility for inclusion in the Ninth Schedule was never considered by him. In other words, the State Legislature will be entitled by independent subsequent action sub ­stantially to enlarge and vary the scope and extent of the protection afforded by Art. 31B. This we, consider, is an untenable position to take. The inclusion of an Act or a provision of an Act in the Ninth Schedule is not made as a matter of course. It undoubtedly must be the result of adequate con ­sideration by the President in the case of Jammu and Kashmir, and by the Parliament in the case of the rest of the India, of the nature and scope of the Act or the provision so included. And the effect of such inclusion is as if the actual text of the Act or of the provision is physi ­cally embodied in the Ninth Schedule. Such physi ­cal incorporation in the Ninth Schedule can he only of the Act or the provision as it stood on the date of its incorporation. To ascertain what pre ­cisely was included in the Ninth Schedule we have naturally to find out what was the actual content of the Act at the time of its inclusion. The Act in question was admittedly included in the Ninth Schedule on 14 -5 -1954. Any provision which was not in the Act on that date cannot therefore be said to be included in that Schedule. What was brought into the Act subsequent to that date was therefore outside the scope of the Ninth Schedule and consequently outside the scope of the protection of Art. 31B. As already indicated, we cannot attribute to the President the intention of giving protection or immunity to something the existence of which he as totally unaware of. Further more, the acceptance of the Advocate Generals somewhat extreme contention will amount to saying that the State Legislature which is a subordinate legislature is clothed with power and authority to amend the Constitution of India, con ­trary to the express and imperative provisions of Art. 368. Thus, for more than one reason the argument of the Advocate General is unacceptable. In Abdul Raiman v. Vithal Arjun, AIR 1958 Bom 94, a similar question arose for consideration. The Bombay Tenancy and Agricultural Lands Act, 1948, Act XLVII., was included in the Ninth Schedule and consequently validated by Art. 31B. Subsequently, a new provision was inserted in that Act by an amending Act Act 33 of 1952.. It was argued that this new provision must also be deem ­ed to be included in the Ninth Schedule and should therefore protected by Art. 31B. In re ­pelling this contention a Division Bench of the Bombay High Court observed as follows:

(3.) IT is, therefore, abundantly clear that what is saved by Art. 31 -B are the provisions of the Act as they stood on 14 -5 -1954 when the Act was included in the Ninth Schedule and not any other or different provision which was enacted by the State Legislature subsequent to that date. Provisions which were subsequently enacted by way of amendments have therefore to be judged on their merits. Learned counsel for the petitioner now urges that as the Act specified in the Ninth Schedule is the Jammu and Kashmir Tenancy Act II of 1980. it is only the provisions of the Act as they stood in the Samvat year 1980 that can be said to be saved by Art. 31B and not any other provision which was inserted in the Act by way of amend ­ment after the original Act came into force in Samvat 1980. We think this contention is unfounded. It is well settled that an original Act cannot be con ­sidered independently of the amendments, because it is inextricably bound up with the amendments. This view is supported by a decision of the Patna High Court in Brij Bhukan v. S. D. O. Siwan, S. AIR 1955 Pat 1 SB.. There is also the clear authority of the Supreme Court for this proposi ­tion in Shamrao V. Parulekar v. District Magis ­trate Thana, AIR 1952 SC 324. Bose, J., stated the law at p. 326 as follows: