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PETITIONER: SHIVDEV SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB(And Connected Petition)

DATE OF JUDGMENT: 27/07/1962

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. SUBBARAO, K. SHAH, J.C.

CITATION:  1963 AIR  365            1963 SCR  (3) 426

ACT: Delegated  Legislation--Ceiling on land fixed--Exemption  of efficiently  managed farms--Part of rule going beyond  rule- making  power--Not  severable--Whole rule  ultra  vires--The PEPSU Tenancy and Agricultural Lands Act, 1955 (Pepsu 13  of 1955),  as amended by Act XV of 1956, ss.  32A,  32k--Rules, 1958, r.31.

HEADNOTE: The PEPSU Tenancy and Agricultural Lands Act was enacted  in March, 1955.  It was amended in October, 1956, and Chs.  IV- A and IV-B were added.  Chapter IV-A provides for ceiling on land and s. 32-A in that chapter fixes the permissible limit of  land  which  could be owned or held  by  any  person  a; landlord or tenant under his personal cultivation.   Section 32K  provides  for exemption of  efficiently  managed  farms consisting  of compact blocks on which heavy  investment  or permanent  structural improvements had been made, and  whose break-up was likely to lead to a fall in production.   Rules were framed in March, 1958, to carry out the purposes of the Act.   Rule 31 lays down the procedure how the exemption  of efficiently  managed farms was to be  determined.   Sub-rule (2) provides that the PEPSU Land Commission, which was to be appointed to advise the State Government with regard to  the exemption of lands from the 427 ceiling  in accordance with the provisions of s. 32K,  shall assign  marks in the manner provided in sub-r. (4) in  order to decide whether a farm was efficiently managed or not, and whether  it  consisted  of compact  blocks  on  which  heavy investment  or  permanent structural improvements  had  been made  and  whose break-up was likely to lead to  a  fall  in production.   Farms were classified as Class A, Class B  and Class  C  farms.   Class A farm was to be deemed  to  be  an efficiently  managed  farms$ 50% of the area of  a  farm  of Class B was to be deemed to be an efficiently managed  farm, and  no area under a farm of Class C was to be deemed to  be an efficiently managed farm. In  writ petitions filed in this court, the petitioners  did

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not challenge the constitutionality of Chs.  IV-A and  IV.B, but  they challenged the constitutionality of r. 31.   Their contention was that the Commission when enquiring into their claim of exemption under s. 32K(1)(iv) of the Act was  bound to  follow  the  requirements of r. 31 in  addition  to  the fulfillment  of  the conditions laid down in  s  32K(1)(iv). The  Petitioners  contended  that the  standards  of  yields prescribed  in  Schedule  C  under  r.  31  were  arbitrary, obnoxious,   unreason.   able,   hypothetical,    completely unrealistic  and  unattainable in any modern farm  and  were repugnant  to  the  provisions of the Act.   The  system  of marking evolved under r. 31 was completely alien and foreign to the Act.  Rule 31 went beyond the power conferred on  the State  Government under s. 32K and was ultra vires the  Act. The  rule  was  a colourable piece of  legislation  and  the object of framing it was to defeat the purpose of the Act so that  no exemption may be granted although  the  legislature intended  to grant exemption to efficiently  managed  farms. The  rule  fettered  the  judgment  and  discretion  of  the Commission which could not be done under the Act. Held, that, Chs.  IV.A was a measure of land reform and  was intended  to provide for equitable distribution of land  and with  that  object  s. 32-A provided  for  ceiling  on  land holding  by  an  individual.   Before  a  farm  could  claim exemption  from the ceiling fixed in s. 32-A, it had  to  be proved  that the farm was efficiently managed, it  consisted of compact blocks, heavy investment or permanent  structural improvements had been made on it and its break-up was likely to  lead to fall in production.  The first three  conditions were  concerned  with  the efficiency of the  farm  and  the fourth with the yield from the farm. 428 The Act contemplates the framing of rules to give  objective guidance  to the Commission in carrying out its duties.   In evolving  the  marking  system as provided  in  r.  31,  the discretion  of  the  Commission was  not  fettered  and  its independence was not made illusory.  So long as the  marking system  took into account what was required under s.  32K(1) (iv),  that did not go beyond what was contemplated  by  the legislature.   Schedule  C  did  not  fix  an   unattainable standard  and  was not a malafide exercise of the  power  to frame  rules with the object of defeating the  intention  of the legislature.  The standards of yields were not too  high or unattainable. The creation of Class B farms under r. 31(2) was beyond  the provisions  of s. 32K, and hence must be field to  be  ultra vires  that section.  The creation of Class B farms  was  so integrated  with  the  whole  of Rule 31  that  it  was  not possible  to  excise Class B farms only from that  rule  and leave  the rest of the rule unaffected; therefore the  whole of r. 31 along with Schedules B and C must be struck down as ultra vires the provisions of the Act, particularly s. 32-K. There  was  nothing  in  the  Act  to  show  that  once   an efficiently managed farm was taken out of the provisions  of s.  32-A on the advice of the Commission, the State  Govern- ment could, later on, cancel the exemption and apply s. 32-A to  it, and, hence, r. 31 (3) must be struck down  as  ultra vires the Act. The  proviso  to  r. 31(4)(b) inasmuch  as  it  obliged  the Commission to apply Schedule C on a mathematical basis, must be  struck  down  as  going  beyond  the  rule-making  power conferred  under the Act.  The Commission had to  take  into account the quality of the land, natural calamities, and the rotation of crops while determining the yield from land. Rule 31 must therefore be struck down as a whole.

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JUDGMENT: ORIGINAL JURISDICTION -Petitions Nos. 261 and 365 of 1961. Petitions  under  Art. 32 of the Constitution of  India  for enforcement of Fundamental Rights. C.   K. Daphtary, Solicitor-General of India K.   P. Bhandari  and  B. Gopalakrishnan, for  the  petitioners  (in Petn.  No. 261/61). 429 K.   L.  Goshin  and K. L. Mehta, for  the  petitioners  (in Petn.  No. 365 of 61). S.   M. Sikri, Advocate-General for the State of The Punjab, N. S. Bindra and P. D. Menon, for the respondents. 1962.  July 27.  The Judgment of the Court was delivered by WANCHOO  J.-These two petitions raise a question as  to  the validiy  and  constitutionality of r. 31  framed  under  the Pepsu  Tenancy  and Agricultural Lands Act (Act  No.  13  of 1955)  as amended by Pepsu Act No. 15 of 1956,  (hereinafter referred  to  as the Act) and will be dealt  with  together. The  attack  on the rule is practically similar in  the  two petitions  and  therefore we shall only give  the  facts  in Petition  No.  261 to understand the nature of  the  attack. The  petitioners  in  Petition No.  261  are  landowners  in village  Dhamo  Majra,  District Patiala, in  the  State  of Punjab.   They  are  running  an  agricultural  farm  on   a mechanised  scale  and  the area of the  farm  measures  421 acres.  This area is a compact block of land and it is  said that   some  part  of  the  area  is  potentially  of   high productivity  whereas other area is of inferior quality  and less  productive  capacity  by reason  of  the  presence  of alkaline  patches of soil therein.  The land was  originally scrub  jungle and was uneven and extensive  reclamation  was carried  on by the petitioners at heavy cost.  They spent  a large   amount   far  terracing  and  leveling   the   land, constructing  bundhs, water channels, approach roads and  in standardising  the  area  of the  fields.   Two  wells  were constructed  for providing irrigational facilities  and  the petitioners  have  their  own electric  substation  for  the purpose.   They have also constructed manure pits  and  have made  permanent  structural  improvements in  the  shape  of construction  of  roads, servant  quarters,  tractor  sheds, cattle-sheds 430 and  stores, and have in all incurred expenses  over  rupees three  lacs  for all these purposes.   The  petitioners  are carrying  on farming on the basis of scientific  cultivation practices, sowing practices and manure practices and because of the use of modern technique the overall yield per acre is very  high keeping in view the fertility and nature  of  the soil. On  March 4, 1952, the Act was enacted.  It was  amended  on October  30, 1956 and Chaps.  IV-A and IV-B were  introduced therein.    The   petitioners  have   not   challenged   the constitutionality of these two chapters and their attack  is only on r. 31 framed under the powers conferred on the State Government under these chapters.  The scheme of Chap.   IV-A is to provide ceiling on land and s. 32-A thereof fixes  the permissible limit of land which can be owned or hold by  any person   as   landowner  or  tenant   under   his   personal cultivation.  "Permissible limit" is defined in s. 3 of  the Act and means "thirty standard acres of land and where  such thirty standard acres on being converted into ordinary acres exceed eighty acres, such eighty acres".  A "standard  acre"

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is  defined in s. 2 (1) as "a  measure  of  land convertible with  reference to yield from, and the quality of the  soil, into  ordinary  acres according to  the  prescribed  scale". Section  32-B  prescribes for returns by the  person  having land  in excess of the ceiling.  Section 32-D provides  that the Collector shall prepare a draft statement in the  manner prescribed showing, among other particulars, the total  area of  land owned or held by a person, the specific parcels  of land   which  the  landowner  may  retain  by  way  of   his permissible  limit  or exemption from ceiling and  also  the surplus area.  Section 32-E provides for the vesting of  the surplus  area in the State Government.  Section 32F  offices power to the Collector to take possession the surplus  area. Section   32-G  provides  for  principles  of   payment   of compensation and sea’. 32-J for the  431 disposal  of the surplus area.  Then comes s. 32-K (1)  with which we are mainly concerned and the relevant part of it is in these terms:-               "32-K (1)-The provisions of section 32A  shall               not apply to-               (i) .......               (ii) ......               (iii) .....               (iv)  efficiently managed farms which  consist               of compact books on which heavy investment  or               permanent  structural improvements  have  been               made and whose break-up is likely to  lead  to               a fall in production;                (v) .......                (vi).......               Section 32-.P which is in Chap.  IV-B provides               for  the establishment of a Commission  called               the   Pepsu   land   Commission   (hereinafter               referred  to as the Commission),  and  sub-ss.               (4) and (5) thereof are in theme terms-               "(4) Subject to the provisions of this Act and               in accordance with any rules which may be made               by  the  State Government in this  behalf,  it               shall be the duty of the Commission to-               (a) .......                (b) ........                (c)  advise the State Government with  regard               to  exemption  of lands from  the  ceiling  in               accordance with the provision of section 32.K.                                    432               (5)   The  advice  given by the  Pepsu  Land               Commission under clause (e) of subsection  (4)               shall  be binding on the State Government  and               notwithstanding  anything in section  32-D  no               final  statement  shall, in a  case  in  which               exemption  is  claimed under section  32-K  be               published  unless  such  advice  is   included               therein." Section  52  given power to the State  Government  to  frame rules to carry out the purposes of the Act. By virtue of the power conferred on the State ’Government to frame  rules, Rules were framed in March 1958 to  carry  out the  purposes of the Act.  We are concerned in  the  present petitions only with rr. 5 and 31.  Rule 5 read with Sch.   A provides  for  conversion of ordinary  acres  into  standard acres and r.  31 lays down how the exemption of  efficiently managed  arms shall be determined, Sub-rule     (1)  thereof provides  that if any person wishes to claim exemption  from the  coiling under cl (iv) of sub-s. (1) of B. 32-K  of  the

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Act,  be  shall also furnish information in form XI  to  the Collector alongwith information required through other forms prescribed under the.Rules. Sub-rule (2) lays down that  the Commission shall assign marks in the manner provided in sub- r.  (4)  in order to decide whether it is a  farm  which  is efficiently managed and consists of compact blocks on  which heavy investment straotural improvements have been made  and whose  break-up is likely to lead to a fall  in  production; and further makes the following classification of farms :-               "Claw  A : If it is awarded 80 per  centum  or               more marks               Class B : If it is awarded 60 to 80 per centum               marks.               433               Class  C : If it is awarded less than  60  per               centum marks." It  is further provided that a class A farm shall be  deemed to  be an efficiently managed farm and fifty per  centum  of the area under a farm of Class B shall subject to the choice of  the  landowner, be deemed to be an  efficiently  managed farm  and  that  no area under a farm of class  C  shall  be deemed  to  be an efficiently managed  farm.   Sub-rule  (3) further  provides  that "the above  classification  of  farm shall  be  revised by Government annually in the  months  of January  and February, and if any efficiently  managed  farm ceases  to be so, the exemption granted in respect there  of shall,  subject  to to the other provisions of the  Act,  be withdrawn  by Government".  Sub’-rule (4) (a) provides  that "the maximum marks to be awarded to a farm, for the purposes of  classification,  shall  be 1,000"  and  sub-r.  (4)  (b) provides that the features for which marks are to be awarded are  those given in Sch.  B and marks shall be  awarded  for each feature subject to the maximum marks noted against each in  that  schedule,  provided that in  allotting  marks  for "Yield" the Commission shall apply the standard yields given in Sch.  C. From XI lays down the particulars and there  are two Sch.  B and C. Out of the total of 1000 marks, 500 marks are prescribed for various features mentioned in items I  to IX  of Sch.  B while 500 marks are for yield.  The  land  in the former Pepsu State is divided into four classes for  the purpose  of Sch.  B. viz., mountaneous, sub-montane  central prescribes average yield in maunds of   various  crops   per acre for irrigated and unirrigated lands. This  in  brief  is  the  scheme  of  Act  and  r.32  framed thereunder.  The petitioners’ case is that the Commission is inquiring into the petitioners’ claim of 434 exemption under s. 32 K (1) (iv) of the Act and in doing  so it is bound to follow the requirements of r.31 in  addition- to  the fulfillment of the conditions in cl. (iv) of  s.32-K (1).   The petitioners contend that the standards of  yields prescribed  in  sch. under r. 31 are  arbitrary,  obnoxious, unreasonable,   hypothetical,  completely  unrealistic   and unattainable  in  any modern farm and are repugnant  to  the provisions  of  the Act.  It is further contended  that  the system  of  marking which has been evolved under  r.  31  is completely alien and foreign to the Act.  Reliance is placed on behalf of the petitioners on the observations of the Sub- Committee set up by the planning Commission on the  problems of Re-organisation, panel on land Reforms for the purpose of suggesting standards of efficient cultivation and management and sanctions for the enforcement of standards, when it said that though "an obvious test of good husbandry may appear to be the comparative yield of crops, or the gross produce  per acre",  the-  Sub-Committee was of the opinion  for  various

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reasons  which it mentioned that ’,the yield varied  with  a number   of  factors  whose  effects  cannot   be   measured quantitatively,  such as location the fertility and  texture of  the soil, the vagaries of the climate, the incidence  of epidemics etc. which are beyond the control of the  farmer". The  SubCommittee  was therefore not prepared to  apply  the test  of  yield  as the sole test of  good  husbandry.   The petitioners  further allege that the yield fixed by Sch.   C showed  great  disparity between it and the  actual  average produce par acre for different crops in different States  of India  and  in different districts of Pepsu,  and  obviously results  in  discrimination.   It is  also  urged  that  the standards  fixed by Sch.  C were unattainable and  therefore the petitioners’ claim for exemption under a. 32 K (1)  (iv) would  be seriously jeopardized if r. 31 is applied.  It  is contended that the rule goes beyond the power 435 conferred  on  the State Government under a. 32  K  and  was therefore ultra vires the Act.  Further, it is urged that r. 31  along with the two Schedules was a colourable  piece  of legislation  and the object of framing it was to defeat  the purpose  of  the Act with the intention of  seeing  that  no exemption  may  be  granted  even  though  the   legislature intended  under  s.  32 K (1) (iv)  to  grant  exemption  to efficiently managed farms.  It is also urged that by  making r. 31, the State has fettered the judgment and discretion of the  Commission  which it could not do under the  Act.   The petitioners therefore pray that r. 31 should be struck  down as  ultra vires of the Act and also as unconstitutional  and the respondents should be directred not to give effect to r. 31. The  petitions have been opposed on behalf of the  State  of Punjab  which is successor to the former State of Papsu  and it  has  been urged that r. 31 does not go beyond  the  rule making power conferred on the State Government and is  intra vires the Act and is not unconstitutional.  We do not  think it  necessary to set out in detail the points raised in  the reply of the State, as they will appear from the  discussion in the later part of this judgment.  Suffice it to say  that the State has challenged all the grounds raised on behalf of the petitioners in support of their case that r. 31 is ultra vires the Act and unconstitutional. In   order  to  determine  the  question  raised  in   these petitions, it is necessary to refer to the scheme of Chapter IV-A  of the Act and the implications of exemption  provided under s. 32 K(1) (iv).  Chapter IV-A is obviously a  measure of  land  reform and is intended to  provide  for  equitable distribution  of land and with that object a. 32 A  provides for  ceiling on land holdings by an individual.  The  const- itutionality of the Act, as we have already said, has 436 not  been challenged and therefore it must be held that  the provisions  of Chap. IV-A when they provide for  ceiling  on land   and   disposal  of  surplus   land   are   reasonable restrictions on the right of persons holding land.   Section 32  K (1) however provides that the provision  asto  ceiling contained  in  8. 32-A shall not apply to  certain  type  of lands  and  one  of those types is  mentioned  in  el.  (iv) thereof (namely, efficiently managed farms which consist  of compact  blocks  on  which heavy  investments  or  permanent structural improvements have been made and whose break-up is likely to lead to a fall in production).  Therefore,  before any  farm can claim that the ceiling as contained in  s.32-A shall not apply to it. it has to comply with the  conditions in cl. (iv).  These conditions which may be deduced from cl.

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(iv) are:-               (i)   that  the  farm  should  be  efficiently               managed;               (ii)  that it should consist of compact blocks               ;               (iii) that   heavy  investment  or   permanent               structural   improvements must have been  made               on the farm; and               (iv)  the  break up of the farm is  likely  to               lead to a fall in  production. Before therefore a person owning or holding a farm can claim exemption  from  the ceiling provided in s. 32 A he  has  to show  that  his farm complies with all the  four  conditions mentioned  above.  In particular, before a person owning  or holding a farm can claim that s. 32 A should not be  applied in  his  case he must show that a break up of  the  farm  is likely  to  lead to a fall in production.  It will  thus  be clear that the first three conditions under s. 32 K (1) (iv) are  concerned with the efficiency of the farm which has  to be  taken  out  of s. 32 A while  the  fourth  condition  is concerned with the yield from 437 the farm.  Therefore, whatever may have been the view of the Sub-Committee  of  the Planning Commission with  respect  to yield  as a criterion of good’ husbandry, there is no  doubt that s. 32 K (1) (iv) requires the it in considering whether the  ceiling  provided  in  a. 32A shall  be  applied  to  a particular farm, its yield must taken into consideration and the farm can only avoid its break up if the result of  the,, break up is ’likely to lead to a fall in production.’ There can be no doubt therefore that in order that a  farm may get the  benefit  of a. 32K (1) (iv) it must  satisfy  the  four conditions set out above. ion  The  Act  has  provided by s. 32  p  that  the  quest-, whether a farm should get the benefit of s. 32 "I K (1) (iv) will  be decided by the Commission, Sub- section (4)  of  s. 32p  lays down that it will be the duty of  the  Commission, subject to the provisions of the Act and in accordance  with the  Rules  which may be made by the  State  Government,  to advise  the  State Government with regard  to  exemption  of lands from the ceiling in accordance with the provisions  of a.  32K.  Sub-section (5) provides that the advice given  by the  Commission  shall be binding on the  State  Government. Sub-section  (4)  itself shows, in addition to  the  general power of the State Government to frame rules under a. 52 for carrying out the purposes of the Act, that the State Govern- ment  has  the  power to frame rules for the  guide  of  the Commission in carrying out its duties under, a. 32p (4) (c), Rule  31  has obviously been framed with that  object.   The petitioners however attack the marking system evolved  under that  rule on the ground that this is completely  alien  and foreign  to the Act.  We cannot agree with this  contention. It is true that the Commission would have to decide  whether a  farm is entitled to the benefit of a. 32K.  If  no  rules had been framed the matter would have been left at large for determination of the Commission to the best of its  ability. It is true that the 438 Commission consists of a Chairman who is or has been a Judge of  the  High Court and two members to be nominated  by  the State  Government  having  special  knowledge  or  practical experience  of land or agricultural problems, even so we  do not think that the Act did not contemplate framing of  rules which will give certain objective guidance to the Commission in  carrying  out  its  duties.  We do  not  think  that  in

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evolving  the  marking  system  as provided  in  r.  31  the Commissions discretion has been fettered and its independent judgment made illusory.  So long as the marking system takes into  account  what is required under s. 32 K (1)  (iv)  in. order to claim exemption from ceiling it cannot be said that the marking system that has been evolved is something beyond what was contemplated by the legislature.  A perusal of Sch. B.  to r. 31 shows that items I to IX which deal  with  lay- out,   cultivation  practices,  sowing   practices,   manure practices,  soil  conservation  practical,  development   of irrigation facilities, plant protection measures, keeping of records and miscellaneous items (like quality of draught and milch animals and their maintenance, arrangement for storage of  produce, small orchards, home poultry farm,  apiculture, sareculture,  participation  in  co-operative  associations, treatment  with labour etc.) are all meant to  evaluate  the first  three conditions in s. 32 K (1) (iv) as indicated  by us above.  We have been pointed out only one item in Sch.  B under  head  "lay-out" which seems to be out  of  place  and which  carries  9  marks out of 500  marks.   That  item  is voluntary  consolidation and the criticism on behalf of  the petitioners  is that too long as the area is compact  it  is immaterial  how that compactness has been achieved,  whether voluntarily  or otherwise.  Barring this item all the  other items  appear  to  carry  out  the  first  three  conditions mentioned by us above 439 and  therefore the Commission will have a standard  when  it considers the question of exemption of farms.     It     has full discretion to evaluate the various features set out  in Sch.  B items I to IX and has full power to give such  marks as  it  thinks  fit.  I cannot therefore  be  said  that  by providing the marking system in Sch.  B the rule has in  any way fettered the discretion and judgment of the  Commission, and affected its independence.  Further item X in Sch.  B is with  respect  to "Yields" and carries 500 marks  out  of  a total  ’of  1000 marks.  Thus the system behind Sch.   B  is that  half  the total number of marks is  provided  for  the first  three conditions and the other half is  provided  for the  yields.   We  have already mentioned  that  the  fourth condition  under a. 32 K (1)(iv) shows that one of the  main qualifications  for exemption from ceiling under a. 32 K  is that  the  production of the farm should be  such  that  its break-up  shall  lead  to  a fall  in  production.   In  the circumstances  we do not think that it can be said that  the allotment  of  half the total number of marks to  yields  in Sch.   B is in any manner contrary to the intention  of  the legislature.   We cannot therefore accept the contention  of the  petitioners  that  the marking system  which  has  been evolved in Soh.  B is in any way foreign to the purposes  of the  Act  or  in any way it fails to carry  out  the  object behind  s.  32  K (1)(iv).  The marking  system  only  gives guidance  to the Commision in the task assigned to it by  s. 32  p  (4)(o).  The attack on r. 31 on the ground  that  the marking system evolved therein is foreign to the purpose of s.   32 K (1)(iv), must fail. The  main attack of the petitioners however is on  Sch.   C. This  Schedule  prescribes the average yield  in  maunds  of various  crops  for  irrigated  and  unirrigated  lands  for various districts and tehsils of the former States of  Pepsu with  which the Act is concerned.  Rule 31 provides that  in giving 440 marks  for  yields the Commission shall apply  the  standred yields  given  in  Sch.   C. The  first  contention  of  the

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petitioners  in this behalf is that the standards  of  yield have been fixed so high that they are unattainable and  this suggests  that the intention of the framers of Sch.  C.  was to  make  the yields so high that no farm could  reach  that standard  with the result that the intention behind s. 32  K (1)(iv)  of  exempting efficiently managed farms  should  be defeated.   In  effect this contention is a charge  of  mala fides  against the State in framing Sch.  C with the  object of nullifying the intention of the legislature contained  in s.  32 K (1)(iv).  Schedule C contains 13 crops, the  yields of  which have been prescribed under two heads, namely,  (i) irrigated  and  (ii) unirrigated.  Learned counsel  for  the petitioners  however, concentrated on wheat to know how  the standard  prescribed  is  so high and  arbitrary  as  to  be unattainable  and  we shall therefore consider the  case  of wheat.   It  is however urged on behalf of  the  petitioners that practically the same arguments will apply to the  other crops we shall assume for present purposes that what applies to wheat will also apply to other crops.  The standard fixed for  wheat  for practically the entire area  of  the  former State  of Pepsu (except Kandaghat and  Nalagarh,  assessment circles  Pahar) is thirty months per acre for irrigated  and 10 maunds for unirrigated lands.  It is said that this is an unattainable standard and therefore Soh.  C has been  framed with  the idea of breaking up the efficiently managed  farms completely  inspite  of  the intention  of  the  legislature otherwise,  In this contention reliance has been  placed  on certain  produce  figures  for that  area  by  either  side. Before however we consider those figures we may refer to  r. 31  (2)  whice  divides  the  frams  into  three  categories according to marking.  We shall refer to this division later in another con- 441 nection; but here it may be remarked that in order that an A class  farm be deemed under r. 31 (2) to be  an  efficiently managed  farm that requires only 80 per ceutum of the  total marks, so that when we apply the yields fixed under Sch C we have to scale them down to 80 per contum, for even if yields are  at  80 per centum the farm will be wholly  entitled  to exemption  under  r. 31 (2).  Therefore, though  the  yields fixed  is  30 maunds for irrigated land and  10  maunds  for unirrigated  land in theory, the practical effect of  r.  31 (2)  is  that  if  a farm produces 24  maunds  per  acre  of irrigated land and 8 maunds per acre of unirrigated land, it will  pass  the test prescribed by a. 32K (1) (iv)  we  have therefore to compare this yield with the other figures which have  been brought to our notice by either side,  to  decide whether the yield fixed in Sch.C has been deliberately fixed so high as to be unattainable with the object of making  the provision  of  s.  32K (1) (iv)  nugatory.   The  burden  of proving this and so establishing the mala fides of the State Government is on the petitioners. Before  we consider these figures we may dispose of a  short point  as to the date on which valuation under s. 32 K  will have  to be made.  Section 32 K came into force  on  October 30,  1956 and it is obvious that it is as on that date  that the Commission will have to decide whether a particular farm complies  with  the  requirements of s. 32 K  (1)  (iv)  and should  therefore  be  exempted from the  operation  of  the ceiling  provided in s. 32Aq The statistics that  have  been provided to us however are of a later period.  We propose to consider  them  but it will always have to be kept  in  mind that  the decision of the Commission has to be on the  facts as they stood on October 30, 1956, so far as s. 32 K (1)  (iv) is concerned.

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442 The Board of Economic Inquiry Punjab (India) publishes every year  a bulletin on "Farm Accounts in the Punjab"  and  this shows that the average yield in maunds for Punjab as a whole in  the  year 1956-57 of wheat on irrigated land  was  13.46 maunds  per  acre and on unirrigated land 10-68.   The  same figures  for 1957-58 were 14.57 and 10.99 and  for  1958-59, 14.65  and  10.1. The same figures of Central  Zone,  Punjab area  were  16.29 and 3.67 for 1956-57; 12.27 and  5.53  for 195758  and 15.29 and 11.12 for 1958-59.  Taking the  matter district  wise,  the  same  figures were  15.95  and  B  for Ludhaina District for 1956-57 and 15.83 and 6.15 in 1958-59. For Sangurur district which in the former state of Pepsu the figures  were  15.33 and 6.41 for the year  1958-59.   These figures  seem to show that so far as the standard  fixed  in Sch.  C for unirrigated land is concerned it cannot be  said to  be  necessarily  unattainable, for the  standard  is  10 maunds  which  when reduced to 80 per centum comes  only  to eight maunds.  As for the irrigated area, the standard is 30 maunds  which  when  reduced to 80 per centum  comes  to  24 maunds.   There is no doubt that the standard for the  irri- gated  area  is  comparatively very  much  higher  than  the averages in the bulletin mentioned above.  In reply  however the State reliefs on certain yields which are certainly very much higher.  Unfortunately, however, we cannot attach  much value  to these yields for they were obtained in  crop  com- petitions and these yields were for irrigated lands  varying from over 32 maunds to over 66 maunds per acre.  One of  the competitors  who showed an yield of over 44 maunds per  acre has  sworn  an affidavit to show how these  yields  in  crop competition  are  arrived at.  According to  him,  the  area selected  is  the best one acre of land which  is  specially prepared for the purpose.  It is intensively  443 ploughed and abnormal doses of manure and fertlisers are put in it.  The irrigation also is twice the normal  irrigation. Further at the time of harvesting only one Biswas of land is out.   Out of this, only one bundle of crop out is  threshed and out of the yield obtained from this bundle, the yield of one acre is computed.  Obviously, the yield obtained in such a  competition  is  not  of  such  value  for  purposes   of comparison.   But  this  however does  not  dispose  of  the matter.   It  must  be  remembered that s.  32  K  (1)  (iv) postulates  that  only those farms would be  exempted  whose break-up  would lead to a fell in production.  This  clearly implies that if the farm in question is only producing  what the average yield is in the whole of the Punjab its break-up would certainly not lead to a fall in production: Therefore, in order that a farm may comply with the condition that  its break-up would result in a fall of production it is  obvious that  its production must be higher than the  average  yield for  the whole of the Punjab.  We have already  pointed  out that  so far as unirrigated land is concerned the fixing  of the standard at 8 maunds per acre does not appear to be  too high  in  view of the figures to be found  in  the  bulletin published  by the Board of Economic Inquiry Punjab  (India), even though the figures relates to the period after  October 30, 1956.  Asto the irrigated area it seems that the average production bars reached up to about 16 maunds per acre.  The standard fixed in Sch.  C is 30 maunds which when reduced to 80  per  centum comes to 24 maunds.  On the  materials  that have  been provided by either side on this record, we  would hesitate to say that the standard of 24 maunds per acre  for irrigated  land  of  the best quality  would  be  too  high. Therefore,  if the standard fixed in Soh.  C is to be  taken

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to  apply  to  the  beat quality  irrigated  land  and  that standard  is reduced to 80 per centum in view of r. 31  (2), we 444 would  hesitate  to  say  that Sch.   C  had  fixed  an  un. attainable standard and so was a mala fide exercise of power to frame rules with th object of defeating the intention  of the  legislature  contained in a. 32 K (1) (iv).   We  have, already said that we propose to take the figures supplied to us with reference to wheat only and we shall assume, as  the learned  counsel for the petitioners ask us to assume,  that what  is true about wheat would be equally true about  other crops.   We  would therefore hesitate in the case  of  other produce  also  to  say  that the  yield  are  too  high  and unattainable,  if they are taken to be the yields  from  the best  quality  irrigated  land, in one  case  and  the  best quality  unirrigated  land  in the  other.   The  contention therefore that the Schedule has been framed mala fide in the sense  mentioned  above must fail, as the  petitioners  have failed to establish that.  But this in our opinion does  not end the matter and we shall now proceed further to deal with other aspects which have been urged before us. Rule 31 (2) provides for the criterion for deciding  whether the  farm is efficiently managed etc. and has created  three classes  of  farms, namely A, B and C, depending  upon.  the marks awarded, 80 per centum or more in the case of class A, 60  per centum or more but below 80 per centum for class  B, and below 60 per centum for class C. It is further  provided that  an  A  class farm shall be deemed  to  be  efficiently managed  while  50 per centum of the area under  a  farm  of class  B  shall, subject to the choice of the  landowner  be deemed  to be efficiently managed but farm of class C  shall not  be considered efficiently managed.  Now the  contention on  behalf  of the petitioners is that  this  division  into three  classes  is  beyond the purview of s.  32  K  and  is therefore  ultra  vires.  Section 32 K, as we  haye  already indicated, lays down 445 that  provisions  of s. 32A shall not apply  to  efficiently managed farms etc. so that when the Commission considers the question  whether a particular farm is  efficiently  managed under  s.  32  K it has only to decide one  of  two  things: namely,  whether the farm is efficiently managed etc. or  is not efficiently managed.  If it is efficiently managed,  the provisions of s. 32 A shall not apply to the entire farm; if on  the  other  hand, it is  not  efficiently  managed,  the provisions of s. 32 A will apply to the entire farm.   There is no scope in s. 32 K for the creation of three classes  of farms, as has been done by el. (2) of r. 31.  In other words there  is no scope for the creation of class B farms in  the rule on the terms of s. 32 K. The rule therefore insofar  as it creates an intermediate class of farms, half the area  of which is deemed to be efficiently managed is clearly  beyond the provisions of s.     32  K  (1) (iv).  The  creation  of class B farms of r. 31 (2) being beyond the provisions of a. 32.K  must  beheld  to be ultra vires  that  sections.   The question  then  arises whether in view of  the  creation  of class  B farms by r. 31 the whole of that rule-must go.   We are  of  opinion that the creation of class B  farms  is  so integrated  with  the whole of r. 31 that it  would  not  be possible  to  excise class B farms only from that  rule  and leave  the rest of the unaffected.  It is impossible to  say what  the  form of r. 31 would have been if  the  rulemaking authority  thought it could not provide for class  B  farms. We  are therefore of opinion that the whole of r.  31  along

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with Schedules B and C must fall, as soon as it is held that the  creation of class B farms under the rule is beyond  the rulemaking power.  This is one ground on which r. 31 must be struck  down  as ultra vires of the provisions of  the  Act, particularly is. 32 K. Then comes r. 31 (3) which provides that the  classification made under r. 31 (2) shall be 446 revised by Government annually in the months of January  and February.   The attack on this provision its  two-fold.   In the  first place, it is contended that r. 31 (3) leaves  the revision of classification of farms entirely to  Government- at  any rate there is nothing in r. 31 to suggest  that  the Government  is  bound  to  consult  the  Commission   before revising the classification of farms.  Secondly, it is urged that there is nothing in a. 32 K or any other provisions  of the  Act  to suggest that once a farm is taken  out  of  the provisions  of  s. 32 A by the application of a. 32  K  that exemption is open to revision thereafter.  We are of opinion that there is force in the second contention, though not  in the first.  Section 32 p (4) and (5) lay down that the State Government will be advised by the Commission with regard  to exemption  under  s. 32K and the advice  of  the  Commission would-be binding on the State Government.  Rule 31  (3) as it stands does not however provide for advice  by the Commission thereunder.  It is also not clear whether the Commission  under  s. 32 is a permanent Commission.   It  is however urged on behalf of the State that r. 31 (3) must  be read  subject to the Act and therefore if the  Act  requires that  the  Commission must be consulted in  the matter  of exemption  the  Government  will be  bound  to  consult  the Commission   even   when   it   proceeds   to   revise   the classification  under r. 31 (3).  We accept this  submission on  behalf of the State and hold that though r. 31 (3)  does not   specifically   provide  for  consultation   with   the Commission  at the time of revision that rule must  be  read subject to s. 32 p (4) and even at the time of revision  the Government is bound to take the advice of the Commission and is bound to act accordingly. The other contention however appears to have force.  Section 32  K lays down that the provisions of& 32 A will not  apply to efficiently  447 managed  farms etc.  Once therefore it is hold that  a  farm comes  within  s. 32 K (1) (iv) the provisions of  a.  32  A relating  to ceiling will not apply to it. There is  nothing in Chap.  IV-A to, suggest.   that   once   an   efficiently managed farm is taken    out of the provisions of s. 32 A on the  advice of the Commission it can be subjected  again  to those  provisions.  Nor have we found any. thing in the  Act which gives power to the State Government to subject a  farm to  which a. 32 A does not apply in view of s. 32 K  to  the provision  of  a.  32 A later.  We realise that  it  may  be possible  for a farm which was efficiently managed when  the Act  came into force in 1956 to be so mismanaged later  that it no longer remains an efficiently managed farm within  the meaning  of s. 32 K (1) (iv) and it does seem reasonable  in those  circumstances that the provisions of s. 32  A  should apply  later  to such a mismanaged farm.  But  that  in  our opinion  has not been provided in the Act itself.  Once  the farm as it was on October 30, 1956 gets the benefit of a. 32 K (1) (iv) such a provision in our opinion cannot be made by a rule, for in that case the rule would be going beyond  the purview  of  the  Act and would be  ultra  vires.   That  is another  reason why r. 31 (3) must be struck down  as  ultra

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vires of the Act. Besides   the  on  attack  on  Sch.   C  based   on   fixing unattainable  standars  mala fide, the Schedule  is  further attacked  on  the ground that it goes beyond  the  intention behind  s.  32  K (1) (iv) inasmuch as  it  provides  for  a mathematical   formula   irrespective   of   various   other considerations  which  have a great play in  the  matter  of yield.   We  have  already pointed out  that  Sch.   C  only provides  for  two classes of lands,  namely  irrigated  and unirrigated.   Further  the proviso to r. 31. (4)  (b)  lays down  that  in allotting marks for  yields,  the  commission shall 448 apply the standard yields given in Sch.C. This means that if the  yield  of a particular farm of irrigated land  is,  for example,  15 maunds of wheat per acre, the Commission  would be  bound  under: the proviso to give 80 per centum  of  the marks  provided  for yields in Sch.  B i.e.  the  Commission will  have to award 250 out of 500 marks to a such  a  farm. Now  if  land whether irrigated or unirrigated  was  of  one quality and if there were no other, factors to be taken into consideration in judging the yield in a particular area  the application  of  a  mathematical  formula  would  have  been justified.   But  there  is  no  doubt  that  irrigated  and unirrigated’ lands are not all of the same quality and  that quality  of  land does affect production.  There  are  other factors also to which we shall later refer which have to  be taken  into  account  in considering the  yield;  but  those factors  have  all  been ignored in Sch.C.  Turning  to  the quality of land, we find from Sch.A to the Rules, which  has been framed with respect to r. 5 for conversion of  ordinary acres into standard acres, that there are eight qualities of land  in  the  State.  of which  five  are  under  the  head "irrigated",  (namely, Chahi, Chahi-Nehri, Nehri  perennial, Nehri  non-perennial  and  Abi) and  three  under  the  head "unirrigated" (namely, Sailabi,Barani and Bhud).  The higest quality. is Nehri perennial and it is marked as 100  meaning thereby  that one ordinary acre of Nehri perennial is  equal to one standard acre.  The lowest quality of irrigated  land is  Nehri  non-perennial  which is  marked  as  75,  meaning thereby that four ordinary! acres of Nehri non-perennial are equal to three standard acres.  This means that the yield of the, lowest quality of irrigated land would be 25 per centum less  than  the best irrigated land.  Now if  the  standards fixed  in Soh.  C are with reference to the beat  land,  the best  irrigated land is expected to produce 30 maunds  minus 20 per centum i.e. 24 maunds.  449 The  lowest  quality of irrigated land will be  expected  to produce 22-1/2 maunds (i.e. 75 per centum of the best  land) minus  20 per centum, equal to 18 maunds.  This  shows  that unless  some account is taken of the quality of land,  Sch.C is bound to work harshly on those farms where the quality of the  irrigated land is of the lowest type.  It may be  said, however, that Sch.  C is based on averages.  Even if that is so, there is bound to be inequality where all the  irrigated land of the farm is of the lowest quality.  The same applies to unirrigated land.  The beat unirrigated land is  Sailabi, which  has  62  per centum yield as compared  to  the  Nehri perennial, meaning thereby that roughly 10 acres of  Sailabi land are equal to six standard acres.  Barani land is  rated at  50 per centum of the best and thus two acres  of  Barani land will be equal to one standard acre.  Bhud is the  worst and rated at 25 per centum and four acres of bhud are  equal to  one standard acre.  Thus if the valuation given in  Sch.

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A.  is accepted, bhud is only half as productive  as  barani and  two-fifths  as productive as sailabi.   Therefore  when Sch.C fixes one standard for unirrigated land without regard to quality, it is bound to work inequality between farms and farms.   It has been urged on behalf of the state  that  the Commission  would  be entitled to take  into  account  these differences  in quality.  There is however nothing in r.  31 which  permits  the  Commission to take  into  account  this difference in the quality of land.  The proviso to r. 31 (1) (b)  definitely  lays  bown  that  in  allotting  marks  the Commission shall apply the standard yield given in Sch.   C, so  that  the Commission is bound to apply those  yields  in every  case and there is nothing in r. 31 which permits  the Commission to take into account the difference in quality of land.   Now when s. 32 k (1)(iv) read with a.  32p  provided for  the  appointment  of  a Commission  to  advise  on  the question of exemption under 450 a.   32  k (2) (iv), the intention of the legislature  obvi- ously  was  that the Commission will take into  account  all factors  which  should  be properly taken  into  account  in giving its advice.  Quality of land is one such factor which should be properly taken into account by the Commission  but as the proviso to r.31(4) stands, the Commission is bound to apply Sch.  C on a mathematical basis without  consideration of  other  factors.  We are therefore of  opinion  that  the proviso  to  r.  31  (4) (b)  inasmuch  as  it  obliges  the Commission  to  apply Sch.  C on a mathematical  basis  goes beyond the provisions of a. 32 k. It was certainly suggested in  argument  before  us  that  it  would  be  open  to  the Commission  to  take  into account  the  difference  in  the quality of land.  But there is nothing in the reply, of  the State to suggest this and we cannot accept what is suggested to  us in argument in the face of the proviso to r.  31  (4) (b).   The  proviso therefore must be struck down  as  going beyond  the rule making power inasmuch as it is ultra  vires the provisions of s. 32 K (1) (iv). There  are other factors which govern the yield of land  and these also have not been taken into account in r. 31.  These factors may be grouped under the head "natural  calamities", as  for example, posts, locusts, excessive rain, floods  and drought.  There is nothing in r. 31 which gives a discretion to the Commission when applying the proviso to r. 31 (4) (b) to  to  take  into  account  these  factors,Obviously,   the intention behind the provision in s.32 K(1) (iv) was that in evaluating  whether  a  farm was  efficiently  managed,  the Commission  will  take  all  these  factors  which  properly require  consideration in the matter of yield into  account, It was however suggests that the Commission was entitled  to take, these factors into account when judging the matter  of yields; but we find nothing in the reply of the 451 ’State  Government  to this effect and in any  case  if  the proviso to r. 31 (4) (b) is interpreted as it stands it  may not  be  possible for the Commission to take  these  factors into account when advising the State Government under s.  32 K (1) (iv).  It is not even clear which year before  October 30, 1956, the Commission will take into account in  advising the Government, whether a particular farm is entitled to the benefit of a. 32 K (1) (iv).  If, for example, the base year is  one  immediately preceding October 30, 1956, and  if  in that  year there was some natural calamity,  the  Commission cannot take that into account and must apply Sch.  C as  the proviso  to r. 31 4) (b) seems to intend.  The intention  of the  legislature therefore behind s. 32 K (1) (iv) would  be

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subverted  because of this proviso.  That is another  reason why  this proviso should be struck down as going beyond  the intention of the legislature in ’B. 32 K (1) (iv). Lastly, there is another factor which is also very  relevant in the matter of yields, namely, the rotation of crops which requires,all good farmers to leave some part of their  lands follow by turns for a whole year in order that the fertility of the soil can be preserved.  Again there is nothing in the proviso  which  allows the Commission to take  into  account this factor and make calculations only on the actual area of a  farm  which is cultivated and leave out of  account  such reasonable  area  as  may  not be  cultivated  in  order  to preserve the fertility or land on the principle of  rotation of crops.  As the proviso stands, the Commission is to apply Sch.   C over the entire area of the farm with.  out  taking into   account  the  factor  of  rotation  of  crops   which necessitates  that some reasonable portion of the land  must be  left fallow for the whole year in order to preserve  the fertility of the soil.  Here again it is urged on behalf  of the State in argument that the Commission can do so.  But 452 again that is not to be found in the reply of the State  and as  the  proviso stands it obliges the Commission  to  apply Sch.   C  to  the entire area of a farm in  order  to  judge whether  it  is  an  efficiently  managed  farm.   This   is therefore  another  reason why the proviso goes  beyond  the intention of the legislature contained in s. 42 K (1) (iv). The  proviso  therefore to r. 31 (4) (b) must be  be  struck down   as  beyond  the  rule  making  power  of  the   State Government.  As soon as the proviso is struck down it  would be impossible to work r. 31 properly; therefore, the  entire r. 31 must fall on this ground also. We  therefore allow the petitions and strike down r.  31  as ultra  vires  the  Act  and order that  r.  31  (along  with Schedules B and C) shall not be given effect to by the State of  Punjab  and  shall  not be taken  into  account  by  the Commission in giving advice to the State Government under s. 32  P  (4).  The petitioners will get their costs  from  the State one set of hearing fee.                                     Petitions allowed.                   --------  453