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1960 (2) TMI 59 - Supreme Court Of India

1960 (2) TMI 59 - Supreme Court Of India - 1960 AIR 796, 1960 (3) SCR 106 - Civil Appeals Nos. 40 to 110 of 1955 - Dated:- 24-2-1960 - Sinha Bhuvneshwar P., Imam Syed Jaffer, Sarkar A.K., Wanchoo K.N. And Shah J.C., JJ. C. K. Daphtary, Solicitor-General of India, M. Adhikari, Advocate-General for the State of Madhya Pradesh and I. N. Shroff, for the appellant K. B. Asthana, S. N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondents JUDGMENT: Wanchoo K.N., These seventy-o .....

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are by the State 'of Vindhya Pradesh (now Madhya Pradesh) while one (No. 110) is by the Brijindar Singh, a jagirdar. The case of the petitioners in the Court of the Judicial Commissioner was that the Act was unconstitutional as various provisions in it placed an unreasonable restriction on the exercise of the fundamental rights guaranteed to the petitioners under Part III of the Constitution. The Judicial Commissioner held that the Act was constitutional, except for three provisions thereof .....

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whole in view of art. 31-A of the Constitution and the decisions of this court in The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh ([1952] S.C R. 889.), Visweshwar Rao v. The State of Madhya Pradesh ([1952] S.C R. 1020) Raja Suriya Pal Singh v. The state of U.P. ([1952] S.C.R. 1056), K. C. Gajapati Narayan Deo v. The State of Orissa ([1954] S.C.R. 1.), Thakur Amar Singhji v. The State of Rajasthan ([1955] 2 S.C.R. 303), Raja Bhairebendra Narayan Bhup v. "he State of Assam ([1956] .....

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sed; but as it was not pressed we think it right that the parties should bear their own costs of this appeal. Now we turn to the appeals by the State. The object of the Act is to resume jagir-lands. Sec. 5 provides for the appointment of a date for the resumption of any class of jagir-land by notification and power is given to the State Government to fix different dates for different classes of jagir-lands. Sec. 6 provides for the consequences of such resumption. Sec. 7, however lays down that n .....

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Then comes Ch. IV, which deals with sir and khudkasht lands. See. 20 provides for an application by the jagirdar for allotment of land for personal cultivation. See. 21 provides for an enquiry by the Tahsildar on such application in the prescribed manner, and the allotment of land and the issue of a patta thereof to the jagirdar having regard to the remaining provisions of the Chapter. Then comes s. 22, which may be quoted in full- " (1) A jagirdar shall be allotted all sir and khudkasht la .....

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s no such land or sufficient area of such land any unoccupied cultivable waste land in the jagir-land subject to availability of such land, so that- (i) in a case falling under cl. (a), the total area allotted to him under this sub-section is equal to the minimum area, and (ii) in a case falling under cl. (b), the area allotted to him under this sub-section together with the area allotted under sub-section (1) is equal to the minimum area. Explanation-In this sub-section, the expression minimum .....

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the purposes of the Act. The learned -Judicial Commissioner has held that s. 22(1) is a colourable piece of legislation. The scheme of s. 22 is to give effect to s. 7(a) by which certain lands were allowed to remain in the possession of the jagirdar. Section 22(1) lays down that all sir and khudkasht lands which a jagirdar was cultivating personally for a continuous period of three years immediately preceding the date of resumption shall be allotted to him by the Tahsildar. Sub- section (2) pro .....

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unoccupied cultivable waste land in the jagir subject to availability of such land upto that area. The minimum area means ten per cent. of the total cultivated area in the jagir at the date of resumption or 30 acres whichever is greater subject to the proviso that in no case the minimum area shall exceed 250 acres. In other words, s. 22 (1) provides that in the first instance the jagirdar will get all his sir and khudkasht land which he had been cultivating for three years continuously before th .....

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subject to availability of such land to make up the minimum area; but the provisions of sub-s. (2) are subject to a minimum of 250 acres. We have not been able to understand how these provisions can be called a piece of colourable legislation. The learned Judicial Commissioner seems to be of the view that as a period of three years' continuous cultivation is made a condition of allotment under s. 22(1), there is discrimination between jagirdars and other occupants of land in whose case s. 2 .....

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osed so that the jagirdar might.be deprived of as much sir and khudkasht land as possible subject to the minimum and that this was done to create in- convenience to the jagirdars whom the legislature did not like. He therefore thought that such legislation was altogether outside the power of the legislature and was invalid as a colourable piece of legislation. In the first place we cannot see how any discrimination can arise in circumstances like this, for the jagirdars are obviously one class w .....

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crimination but held that it was a colourable piece of legislation. What is a colourable piece of legislation has been laid down by this Court in K. 0. Gajapati Narayan Deo v. The State of Orissa ([1954] S.C.R. (1)). It was pointed there that :- "The question whether a law was a colourable legislation and as such void did not depend on the motive or bona fides of the legislature in passing the law but upon the competency of the legislature to pass that particular law, and what the courts ha .....

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case had full competence to make this provision under Entry 18, List II of the Seventh Schedule. There is no question here of transgressing those powers and veiling the transgression under a pretence or disguise. We do not think it was proper for the Judicial Commisisioner to ascribe motives to the legislature as he seems to have done by saying that the provision was made for creating inconvenience to a class whom the legislature did not like. Nor do we think that there is any force in the argum .....

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d in s. 7(a) of the Act and are in our opinion perfectly constitutional. We now turn to s. 37 of the Act. That section appears in the procedural part of the Act and is as follows:- " (1) No civil court shall have jurisdiction to settle, decide or deal with any question which is, by or under this Act, required to be settled, decided or dealt with by the Tahsildar, the Deputy Commissioner, the Land Reform Commissioner, or the Board of Revenue. (2) Except as otherwise provided in this Act no o .....

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d Judicial Commissioner has held this section invalid on the ground that it.is repugnant to s. 9 of the Code of Civil Procedure, inasmuch as it takes away the jurisdiction of the civil court which it has under that section. Sec. 9 lays down that the civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Sec. 9 therefore gives jurisdiction to civil courts to try all suits of a civil nature exceptin .....

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r of fact s. 9 recognises that if a competent legislature passes a law barring the jurisdiction of a civil court, the jurisdiction of the civil court to take cognizance of such suit, even though of a civil nature, is ousted. It was in our opinion unnecessary to go into s. 22 of the Government of Part C States Act, No. XLIX of 1951 and compare it with art. 254 of the Constitution in this connection. Sec. 37 does not in any way affect s. 9. All that it provides is that civil courts shall have no j .....

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ith s. 37 of the Act. The decision of the Judicial Commissioner there. fore that s. 37 is ultra vires the powers of the Vindhya Pradesh legislature is not correct. Lastly we come to el. (4) (e) of the Schedule. The Schedule provides for the method of computing compensation. Clause (3) lays down the manner in which the gross income of a jagirdar shall be arrived at. Clause (4) lays down how net income will be arrived at after making certain deductions. One of these deductions is in sub-cl. (e) of .....

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