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PETITIONER: INDER SINGH & ANR.

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT: 10/04/1967

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. RAO, K. SUBBA (CJ) HIDAYATULLAH, M. BACHAWAT, R.S. VAIDYIALINGAM, C.A.

CITATION:  1967 AIR 1776            1967 SCR  (3) 603  CITATOR INFO :  RF         1972 SC2097  (18)

ACT: Pepsu Tenancy and Agricultural Lands Act, 1955 (Pepsu 13  of 1955) s.  32-FF-Limit of holding by Hindu undivided  family, if defeats right of its  member-If  infringes  Art.  19  and protected by Art. 31-A. Constitution of India, Arts. 19 and 31-A-Validity of s.  32- FF of Pepsu Tenancy and Agricultural Lands Act

HEADNOTE: While ascertaining the surplus land under the Pepsu  Tenancy and  Agricultural Lands Act, the excess over 30 acres  owned by  the  appellants, a Hindu undivided family  was  declared surplus.   In  ascertaining  the  surplus,  the  authorities ignored  the transfer of land by the Karta of the family  to an   outsider  by  a registered  deed.    The   appellants unsuccessfully  filed  writ  petition.  In  appeal  to  this Court,  the  appellants contended that s. 32-KK  deprives  a coparcener  in  a Hindu undivided family of  his  rights  of property.   in  that  it  takes  away  the  rights  of   the descendants  of the land-owner to claim for  themselves  the permissible  area  and vest them in the head of  the  family alone so that there is not only an infringement of the right to   hold   property   under  Art.  19(1)   (f)   but   also discrimination   in  favour  of  the  head  of  the   family infringing  thereby Art. 14 and that the section  cannot  be said to be legislation whose object is agrarian reform  and, therefore, is not protected by Art. 31-A. HELD:The appeal must fail. In  Pritam  Singh v. State of Punjab [(1967) 2  S.C.R.  536] this  Court  upheld the validity of s. 32-FF and  held  that that  section  was  protected  by  Art.  31-A  against   any challenge under Art. 19.  If a transfer or a disposition  of land  can validly be ignored under s. 32-FF for the  purpose of ascertaining surplus land and acquisition of such surplus land bit-he State and that section is protected by Art.  31- A,  it  is difficult to say why s. 32-KK  which,  equates  a Hindu undivided family with an individual landowner for  the

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limited  purpose  of  the Act without  affecting  the  other rights  of  its  members is not equally  protected  by  that Article.  The object of enacting s. 32-KK was to prevent the landowner   and   his  descendants  by   reason   of   their constituting  a  Hindu undivided family from  each  of  them claiming  in   his own right the permissible area  from  the joint  holding of the family and thus retain for  themselves in  the  aggregate area larger than 30  standard  acres  and preventing thereby distribution of surplus area. [608 F-H] The  contention  that  the section is not  one  relating  to agrarian reform is  hardly   sustainable  in  view  of   the objects of the Act in general and of s. 32-KK in particular. Similarly, the contention that the section has the affect of defeating the rights of a member of a Hindu undivided family from  the family property also cannot be  sustained  because his rights in the permissible area retained by the landowner and his right to compensation in respect of the surplus area are  not touched by the section.  Nor is it possible to  say that  the section results in the transfer of rights  of  the descendants  of  a landowner in the permissible  or  surplus area  in  favour of such landowner.  The  section  does  not effect any change in the rights of 604 the  descendants as members of a Hindu undivided  family  or the relationship of the family inter se except to the extent of  depriving the descendants of their right to  claim  the ceiling area for each of them. [609 B-E] The decision of Ranjit Singh v. The State of Punjab  ([1965] 1 S.C.R. 82) points out that the fixing of ceiling on  lands and  provisions  relating  to  it would  form  part  of  and constitute  agrarian reform and, therefore, such  provisions would have the protection of Art. 31-A. [607 H]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 92 of 1966., Appeal from the order dated May 30, 1963 of the Punjab  High Court in Letters Patent Appeal No. 148 of 1963. R. V. S. Mani and M. L. Agarwal, for the appellants. Dipak  Dutt  Chaudhuri and R. N. Sachthey, for  the  respon- dents. S.  K.  Mehta, and K. L. Mehta, for the interveners. The Judgment of the Court was delivered by Shelat,  J. The appellants are members of a Hindu  undivided family of which the first appellant is the Karta.  Prior  to August  21, 1956, the family owned 64.35 standard  acres  of land in village Kurali, District Patiala.  The land stood in the revenue records in the name of the first appellant.   On December  23,  1957,  the  first  appellant  transferred  26 standard  acres  to  one Babu Singh by  a  registered  deed. According  to them, they had Planted an orchard in 10  acres of  land.   Their contention was that the said  26  standard acres and the said 10 standard acres could not be taken into account  while  ascertaining surplus land  under  the  Pepsu Tenancy  and  Agricultural Lands Act, XIII  of  1955.   Both these claims were rejected by the authorities.  By his order dated  January 20, 1961’, respondent ’No. 3  declared  34.35 standard  acres  out  of the said 64.35  standard  acres  as ’Surplus  land.  The appeal filed by the appellants  against the  said  order was rejected.  They then filed  a  revision application before respondent No. 1. While that was  pending they  filed a writ petition in the High Court.   During  the pendency  of  that  writ petition.  the  Punjab  Legislature passed the Amendment Act, XVI of 1962 inserting S. 32-KK  in

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the principal Act.  The learned Single Judge,. who heard the writ petition, held (1) that the finding that the appellants had not planted the said orchard within the statutory period was  one  of fact and could not be challenged in  the  writ petition and (2) that the said transfer of 26 standard acres was hit by S. 32-FF and therefore was rightly ignored  while ascertaining  the surplus land.  The main  contention  urged before the High Court, however, was that each of the three appellants  who constituted the said family was entitled  to ,retain  30  standard acres, that as the total  holding  was only 64.35 605 standard  acres,  there  was no surplus land  liable  to  be acquired  under the Act and, therefore, the order  declaring 34.35 Standard acres, as surplus land was illegal.  The High Court  following its earlier decision in Bhagat v. State  of Punjab(1)  "missed  the  writ petition.   A  Letters  Patent Appeal  against that judgment was dismissed in limine.   The present  appeal  by  certificate  is  directed  against  the dismissal of the said writ petition. Mr. Mani’s contentions were: (1) that under Hindu Law  every coparcener in a Hindu undivided family acquires right in the property  of such coparcenery on birth and is entitled to  a right  of  joint  possession and  enjoyment  of  its  entire property,  that  S. 32KK deprives such a coparcener  of  his rights of property in that that it takes away the rights  of the descendants of the landowner to claim for themselves the permissible  area  and vest them in the head of  the  family alone so that there is not only an infringement of the right to  hold  property  under Art. 19 (1 ) (f )  but  also  dis- crimination  in favour of the head of the family  infringing thereby  Art.  14; (2) that the effect of s. 32-KK  is  that where  an undivided family is possessed of land, instead  of each  of  the  descendants  getting a  ceiling  area  of  30 standard  acres,  the  head  of the  family  alone  gets  30 standard  acres  and therefore the section is  violative  of Art.  31;  (3) that the section, being  applicable  only  to Hindu undivided families infringes Art. 15(1) inasmuch as it discriminates  by reason only of religion such  families  as against   other   undivided  families  in   Punjab   amongst communities  other  than  Hindus and (4)  that  the  section cannot  be said to be legislation whose object  is  agrarian reform and, therefore, is not protected by Art. 31 A.  Section  32-KK, the validity of which is impeached in  this appeal, reads as follows :-               "Notwithstanding  anything contained  in  this               Act or in any other law for the time being  in               force :-               (a)   where,     immediately    before     the               commencement of this Act, a landowner and  his               descendants   constitute  a  Hindu   undivided               family,  the land owned by such family               shall, for the purposes of this Act, be deemed               to  be  the  land of  that  landowner  and  no               descendant shall, as member of such family, be               entitled to claim that in respect of his share               of  such  land he is a landowner  in  his  own               right". The  section first lays down a fiction and then its  result. The  fiction is that where a landowner and  his  descendants form  a  Hindu undivided family, the land owned  by  such  a family  shall be, deemed to be. the land of that  landowner. The fiction so en- (1)  I.L.R. (1963) 16 (1) Punjab 5O. 6O6

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-acted  is  limited only for the purposes of the  Act.   The result of the fiction again for the purposes of the Act  is that  no  descendant shall, as a member of such  family,  be entitled to claim that in respect of his share of such land he is a landowner in his own right.  There is no doubt  that the  section has a direct adverse ,effect on the  rights  of the descendants of a landowner.  It treats such a family  as one unit equating the landowner and his descendants with  an individual   landowner  depriving  by  such equation   the descendant of the right to hold a ceiling area for  himself. Prima facie, such a provision would infringe Art. 19(1)  (f) and  Art.  31 and would be hit by Art.  13.   Article  31-A, however, provides that notwithstanding anything contained in Art.  13, no law providing for the acquisition by the  State of   any   ,estate  or  of  any  rights   therein   or   the extinguishment  or modification of any such rights shall  be deemed to be void on the ground that it is inconsistent with or  takes  away or abridges any of the rights  conferred  by Arts.  14, 19 or 31.  If, therefore, S. 32-KK  falls  within the   scope  of  Art.  31-A,  it  is   obviously   protected there under and the validity of the section is placed beyond any  ,challenge on the ground of its infringing any  of  the rights under Arts. 14, 19 or 31. In K. K. Kochuni v. The State of Madras(1), this Court  laid ,down  that Art. 31-A properly construed envisages  agrarian reform  and provides for the acquisition, extinguishment  or modification  of  proprietary  and various  other  kinds  of subordinate  rights in a tenure called the ’estate’  solely for that purpose and must be limited to it.  The Court  held that  the  Act  impugned  there  did  not  ,contemplate  any agrarian  reform  or seek to regulate the  rights  inter  se between  the landlords and tenants or modify  or  extinguish any  of the rights appertaining to janmam right leaving  all the characteristics  intact and, therefore, did  not  come within  the  purview of Art. 31-A.  In Ranjit Singh  v.  The State  Punjab (2), this Court considered the scope  of  that decision  and  held that the ’Word ’estate’ in  Art.  31  -A should  be  given  a liberal meaning and  that  the  changes proposed by the Punjab Consolidation Acts passed since  1948 and onwards were included in the general scheme of planning of rural areas and the productive utilisation of vacant  and waste lands, that if agrarian reforms were to succeed,  mere distribution  of land to the landless was not  enough,  that there  should  be  a proper planning of  rural  economy  and conditions  and  that a scheme which  makes  villages  self- sufficient cannot but be regarded as part of larger  reforms which  consolidation  ,of holdings, fixing  of  ceilings  on lands, distribution of surplus lands and utilising of vacant and  waste lands contemplate.  It is not necessary to  refer to  other decided cases as this decision clearly points  out that the fixing of ceiling on lands and provisions (1) [1960] 3 S.C.R. 887. (2) [1965]1 S.C.R. 82. 607 relating  to it would form part of and  constitute  agrarian reform  and,  therefore,  such  provisions  would  have  the protection of Art. 3 1 -A. A  brief outline of the provisions of the Act will show  the objects  and  the  policy the legislature  had  in  mind  in passing  the  Act and while amending it from time  to  time. The Act declares that it was passed to amend and consolidate law  relating  to  tenancy and  agricultural  lands  and  to provide  for  certain measures of land reforms.   Section  3 defines " permissible limit" as meaning 30 standard acres of land.   Section  5  entitles ,very  landowner  owning  land

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exceeding  the  permissible  limit to  select  for  personal cultivation from the land held by him any parcel or  parcels of  land  not exceeding in aggregate the  permissible  area. Chapter III provides for the rights of tenants and section 7 therein lays down that no tenancy shall be terminated except in  accordance with the provisions of the Act or  except  on any  of the grounds therein set out.  Section 7-A lays  down additional grounds for termination of tenancy in cases  such as  where the land comprising the tenancy has been  reserved by  the landowner for his personal cultivation or where  the landowner  owns  30 standard acres or less of land  and  the land falls within the permissible limit.  Section 9 provides the maximum amount of rent payable by a tenant.  Chapter  IV deals with acquisition or proprietary rights by a tenant  on such  tenant  paying compensation determined  in  accordance with  the principles set out in section 26.   Chapter  IV-A, which  was added by Act 15 of 1956, deals with ceiling  on lands and acquisition and disposal of surplus land.  Section 32-A  provides  that no person shall be entitled to  own  or hold  as landowner or tenant land exceeding the  permissible limit.   Section 32-B obliges a person owning or holding  as landowner or tenant land which exceeds the permissible limit to  furnish to the Collector a return giving particulars  of all  his land and stating therein his selection of land  not exceeding  the permissible limit which he desires to  retain and  of lands in respect of which he claims  exemption  from the ceiling.  Section 32-D directs the Collector to  prepare a  draft statement on the basis of the information given  in the  said  returns showing the total area of land  owned  or held  by such person and the land selected by him by way  of permissible  limit  the  exemption claimed by  him  and  the surplus  area.   Section 32-E provides that in the  case  of surplus  area  of  a  landowner or a  tenant  which  is  not included within the permissible limit such area shall on the date  on  which  possession thereof is taken  by  the  State Government,  be  deemed to have been acquired by  the  State Government  for a public purpose.  Section  32-F  authorises the  Collector  to  direct the landowner or  the  tenant  in possession of the surplus area to deliver possession thereof within the prescribed time.  Section 32-FF provides that  no transfer or 608 other  disposition of land made after August 21, 1956  shall affect the right of the State Government to the surplus area to  which it would be entitled to but for such  transfer  or disposition.   Section  32-G lays down principles  on  which compensation in respect of surplus area is to be determined. Section  23-J  deals  with disposal of  such  surplus  area. Section 32-KK already recited above was inserted in the  Act by Punjab Act XVI of 1962. It  is clear from these provisions that the objects  of  the Act  are  :  (a) to secure the rights  of  tenants,  (b)  to provide for acquisition of proprietary rights in the land,to the  tenant,  (c)  to provide for permissible  limit  of  30 standard acres, (d) to acquire surplus areas and  distribute them  amongst certain classes of persons including  landless persons,  and (e) to provide for compensation at  prescribed rates payable by tenants and by Government on its  acquiring surplus  land.  The principle laid down by the, Act is  that no  person, whether a landowner or tenant, should hold  land more than the permissible area so that the surplus land  can be  distributed amongst the more needy sections of  society. In   following  this  principle  the  Act  lays   down   two corollaries,  namely, (1) not to recognise any  transfer  or disposition  made  by a landowner after a  certain  date  as

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otherwise  the scheme of distribution of surplus land  would be  frustrated, and (ii) to equates an individual  landowner and  a Hindu undivided family consisting of a landowner  and his descendants so that both the units are entitled to  hold only  the  permissible area of 30 standard  acres.   In  our view, it cannot be gainsaid that section 32-KK deals with an estate within the meaning of Art. 31-A and is concerned with agrarian reform.  The decision in Kochuni’s case(1)  cannot, therefore, avail the appellants. In Pritam Singh v. The State of Punjab (2) , this Court  up- held  the validity of s., 32-FF and held that  that  section was protected by Art. 31-A against any challenge under  Art. 19.   If a transfer or a disposition of land can validly  be ignored  under  s.  32FF for  the  purpose  of  ascertaining surplus  land  and acquisition of such surplus land  by  the State  and  that section is protected by Art.  31-A,  it  is difficult to say why s. 32-KK which, as aforesaid, equates a Hindu undivided family with an individual landowner for  the limited  purpose  of  the Act without  affecting  the  other rights  of  its  members is not equally  protected  by  that Article.  The object of enacting s. 32-KK was to prevent the landowner   and   his  descendants  by   reason   of   their constituting  a  Hindu undivided family from  each  of  them claiming  in  his own right the permissible  area  from  the joint  holding of the family and thus retain for  themselves in  the  aggregate area larger than 30 standard’  acres  and preventing thereby distribution of surplus area.  As to (1) [1960] 3 S.C.R. 887. (2) [1967] 2 S.C.R. 536. 609 the  pros and cons of such a provision much can be  said  on either  side.  The appellants could have  perhaps  contended that   such  a provision  amounted  to   an   unreasonable restriction.   But such a contention is debarred by Art.  31 A  an d  a challenge to the validity of that Article  is  no longer  possible  in view of the recent decision  in  1.  C. Golak Nath v.  The State of Punjab(1). The  contention  that  the section is not  one  relating  to agrarian reform is hardly sustainable in view of the  above- mentioned  objects of the Act in general and of S. 32-KK  in particular.  Similarly, the contention that the section  has the  affect of defeating the rights of a member of  a  Hindu undivided  family  from the family property also  cannot  be sustained  because  his  rights  in  the  permissible   area retained  by the landowner and his right to compensation  in respect of the surplus area are not touched by the  section. Nor  is it possible to say that ’the section results in  the transfer of rights of the descendants of a landowner in  the permissible  or  surplus area in favour of  such  landowner. The section does not effect any change in the rights of  the descendants  as members of a Hindu undivided family  or  the relationship of the family inter se except to the extent  of depriving  the  descendants  of their  right  to  claim  the ceiling  area  for each of them.  The contention as  to  the validity of S. 32-KK, therefore, must fail. The  next contention was that the section infringes Art.  15 inasmuch as by limiting it only to Hindu undivided  families it  discriminates against descendants forming such  families on  the  ground of religion only.  It was  argued  that  the customary  law  in  Punjab recognises  joint  and  undivided families  amongst  non-Hindu  persons  also  and  since  the section  affects  only  the  Hindu  undivided  families,  it violates  Art. 15.  In support of this  contention  passages from Rattigan’s Digest of Customary Law, 14th Ed. pp. 35  to 36 were relied on to show that the institution of  undivided

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family exists amongst certain classes of Muslims in  certain districts  of  Punjab.   Support was also  sought  from  the decisions  in  Banarsi  Das v. Wealth  Tax  Officer.(2)  and Mammad  Kevi  v.  Wealth Tax Officer (3).   The  former  was concerned with the question whether a Hindu undivided family is  embraced  within the term ’individuals’ in Entry  56  of List  1  of  the Seventh Schedule to  the  Constitution  for purposes  of the Wealth Tax Act, 1957.  The latter  decision does  not touch the question under Art. 15.  Neither of  the two decisions, therefore, can assist.  On the other hand, in the  case of Bhagat v. State of Punjab(4) the High Court  of Punjab  has  held  that section 32-KK does  not  create  any discrimination  on the ground of religion.  In ’the  present case, it is not possible to give (1)  [1967] 2 S.C.R. 762. (3)  [1966] 50 I.T.R. 737. L7Sup.Cl/67-9 (2)  [1965] 56 I.T.R. 224. (4)  I.L.R. [1963] 16 (1) Punj. 500. 610 any  concluding answer to the contention raised by Mr.  Mani firstly  because  such a point was not raised  in  the  writ petition and secondly because the appellants have not placed before  us  sufficient  data to enable us  to  go  into  the question.   We,  therefore,  refrain  from  examining   that contention. The appeal fails and is dismissed with costs. Y.P.                                       Appeal dismissed. 611