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TMI Blog1958 (12) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... e) Act XII of 1950, which came into force on November 6, 1950, on the date on which it was first published in the Punjab Government Gazette. The Act prescribed a limit of one hundred standard acres of land (equivalent to two hundred ordinary acres) which could be held by a land-owner for his "self-cultivation"; and it was termed "permissible limit" - (section 2(3)). Any land-owner having land in excess of the "permissible limit", was authorized by section 3 to select for "self-cultivation", land out of the entire area held by him in the State of Punjab, as land-owner, and reserve it for his own use to the extent of the "permissible limit". This "right of reservation" had to be exercised, first, in respect of land in his self-cultivation; and if the extent of such land fell short of the "permissible limit", he could, under section 4, make up the deficiency by ejecting tenants under him in respect of such lands as fell within his reserved area. Section 5 fixed the minimum period of tenancy as four years, subject to certain exceptions set out in section 6. These were some of the salient features of the Act of 1950, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf-cultivating lessee - (section 2(6)). As already indicated, a tenant also may be liable to be ejected from any area which he holds in any capacity whatever in excess of the "permissible area". Section 10-A authorizes the State Government or any officer empowered by it in this behalf, to utilize any "surplus area" for re-settlement of tenants ejected or to be ejected under the provisions of section 9(i). But a tenant inducted on to such "surplus area", holds the land under the land-owner, who, thus, becomes entitled to receipt of rent from the tenant. Section 12 lays down the maximum rent payable by a tenant. Section 17 recognizes the rights of certain tenants to pre-empt sales or fore-closure of land. Section 18, which formed the subject-matter of the most vehement attack on behalf of the petitioners, confers upon the tenants of the description given in the several clauses of the Act, the right to purchase from the land-owner the land held by them, subject to certain exceptions, and subject to the payment in a lump sum or in six monthly installments not exceeding ten, of the purchase-price to be determined in accordance with clauses (2) and (3) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, has vested exclusive power in the State to make laws with respect to "rights in or over land, land tenures including the relation of landlord and tenant...." The provisions of the Act set out above, deal with the landlord's rights in land in relation to his tenant, so as to modify the landlord's rights in land, and correspondingly, to expand the tenant's rights therein. Each of the expressions "rights in or over land" and "land tenures", is comprehensive enough to take in measures of reforms of land tenures, limiting the extent of land in cultivating possession of the land-owner, and thus, releasing larger areas of land to be made available for cultivation by tenants. 7. Counsel for some of the petitioners who challenged the legislative competence of the State Legislature, were hard put to it to enunciate any easily appreciable grounds of attack against Entry 18 in List II of the Seventh Schedule. It was baldly argued that Entry 18 aforesaid, was not intended to authorize legislation which had the effect of limiting the area of land which could be directly held by a proprietor or a land-owner. It is difficult to see why the amplitude of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Judicial Committee of the Privy Council repelled the contention raised on behalf of the appellants that the words of Item No. 21, were not wide enough to comprehend the relationship of mortgagor and mortgagee in respect of agricultural land. Their Lordships observed that Item 21 aforesaid, forming a part, as it did, of the Constitution, should, on ordinary principles, receive the widest construction, unless, for some reasons, it is cut down either by the terms of that item itself, or by other parts of the Constitution, which have, naturally, to be read as a whole; and then proceeded to make the following very significant observations :- "As to item 21, "land", the governing word, is followed by the rest of the item, which goes on to say, 'that is to say'. These words introduce the most general concept - 'rights in or over land'. 'Rights in land' must include general rights like full ownership, or leasehold or all such rights. 'Rights over land' would include easements or other collateral rights, whatever form they might take. Then follow words which are not words of limitation but of explanation or illustration, giving instances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticles 14, 19 and 31. But it has been argued that the provisions of Article 31A(1)(a), which are admittedly the only portions of the Article, which are relevant to the present inquiry, are not attracted to the impugned Act. It has been conceded on behalf of the respondents that the Act does not provide for the acquisition by the State of any estate or of any rights in any estate. Hence, the crucial words which must govern this part of the controversy, are the words "the extinguishment or modification of any such rights"; that is to say, we have to determine whether or not the impugned Act provides for the extinguishment or modification of any rights in "estates". Article 31A(2) defines what the expression "estate" used in Article 31A means. According to that definition, "the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or Muafi or other similar grant and in the States of Madras and Kerala, any janmam right". It is common ground that we have to tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act is saved by the provisions of that Article fails in limine. If, on the other hand, it is held that Article 31A applies not only to entire estates or any rights therein, but also to shares or portions of an estate or rights therein, then all the arguments advanced on behalf of the petitioners, founded on the provisions of Articles 14, 19 and 31, are thrown overboard. Therefore, it becomes necessary to consider the amplitude of the expression "any estate or of any rights therein" in Article 31A(1)(a). Rights in an estate may be either quantitative or qualitative. That is to say, rights in an estate may be held by persons having different qualities of rights in lands constituting an estate, as a result of sub-infeudation. Generally speaking and omitting all references to different kinds of land tenures prevailing in different parts of India, it may be said that at the apex of the pyramid, stands the State. Under the State, a large number of persons variously called proprietors, zamindars, malguzars, inamdars and jagirdars, etc., hold parcels of land, subject to the payment of land revenue designated as peshkash, quit-rent or malguzari, etc., representing the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om them. These patnidars may have darpatnidars under them, and darpatnidars, sepatnidars, and in this way, the sub-infeudation went on. All these classes are included within the terms "tenure-holders", "sub-proprietors" or "under-proprietors". The persons who are inducted on to the land for bringing it under their direct cultivation, are generally known in Eastern India as raiyats with rights of occupancy in the land held by them. But raiyats, in their turn, may have inducted tenants under them in respect of the whole or a portion of their holding. The tenant holding under a raiyat is known as an under-raiyat, and an under-raiyat may induct a tenant under himself, and he will be an under-raiyat of the second degree. Thus, in each grade of holders of land, in the process of sub-infeudation described above, the holder is a tenant under his superior holder, the landlord and also the landlord of the holder directly holding under him. Thus, in Eastern India, the interest of intermediaries between the proprietor of an "estate" at the top and the actual tiller of the soil at the bottom, is known as that of a "tenure-holder", and the intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g longer tenures, and as we have seen above, the period have been progressively increased until we arrive at the stage of the legislation now impugned, which proposes to create a large body of small land-owners who have a comparatively larger stake in the land, and consequently, have greater impetus to invest their labour and capital with a view to raising the maximum usufruct out of the land in their possession. 15. Keeping in view the background of the summary of land tenures in Punjab and elsewhere, we have to construe the amplitude of the crucial words "any estate or of any rights therein" in Article 31A(1)(a). Soon after the coming into effect of the Constitution, the different States in India embarked upon a scheme of legislation for reforming the system of land-holding, so as (1) to eliminate the intermediaries, that is to say, those who hold interest in land in between the State at the apex and the actual tillers of the soil - in other words, to abolish the class of rent-receivers, and (2) to create a large body of small land-holders who have a permanent stake in the land, and who are, therefore, interested in making the best use of it. As the connotation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of constitutional invalidity, based on Articles 14, 19 and 31, should not be construed in a narrow sense. On the other hand, such a constitutional enactment should be given its fullest and widest effect, consistently with the purpose behind the enactment, provided, however, that such a construction does not involve any violence to the language actually used. 17. Another branch of the same argument was that if the makers of the Constitution intended to include within the purview of Article 31A, not only entire estates but also portions thereof, nothing would have been easier than to say so in terms, and that in the absence of any specific mention of "portions of an estate", we should not read that article as covering "portions of an estate" also. In our opinion, there is no substance in this contention, because they must be attributed full knowledge of the legal maxim that "the greater contains the less" - Omne Majus continet in se minus. In this connection, our attention was invited to the decision of a Full Bench of the Punjab High Court in the case of State of Punjab v. S. Kehar Singh (1958) 60 P.L.R. 461, to the effect that a holding being a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated his own reasons for changing his view. The Full Bench has accepted the force of the legal maxim that the greater contains the less, referred to above, but has not, it must be said with all respect, given any good reasons for departing from that well-established maxim. The judgment of the Full Bench on this part of the case is based entirely upon the definition of an estate, as contained in the Punjab Land Revenue Act, set about above. It has not stopped to consider the further question why a holding, which is a share or a portion of an estate, as defined in the Punjab Act, should not partake of the characteristics of an estate. Keeping in view the background of the legislative history and the objective of the legislation, is there any rational reason for holding that the makers of the Constitution thought of abolishing only intermediaries in respect of an area constitution one entire estate but not of a portion thereof ? On the other hand, as indicated above, they have used the expression "estate" in an all-inclusive sense. They have not stopped at that; they have also added the words "or any rights therein". The expression "rights" in relation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the Act impugned in these cases, did not amount to the extinguishment of the interest of the land-owners in estates or portions thereof, and that what the Act did was to transfer some of the rights of the land-owners to their tenants. In this connection, reliance was placed on the observations of this Court in the case of Thakur Raghubir Singh v. Court of Wards, Ajmer [1953] 4 SCR 1049, where Mahajan, J. (as he then was), speaking for the Court, observed that the expressions "extinguishment" and "modification" used in Article 31A of the Constitution, meant extinguishment or modification respectively of a proprietary right in an estate, and should not include, within their ambit, a mere suspension of the right of management of an estate for a time definite or indefinite. Those observations must be strictly limited to the facts of that case, and cannot possibly be extended to the provisions of Acts wholly dissimilar to those of the Ajmer Tenancy and Land Records Act, XLII of 1950, which was the subject-matter of the challenge in the case then before this Court. This Court held, on a construction of the provisions of that Act, that they only suspen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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