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PETITIONER: STATE OF MAHARASHTRA & ORS.

       Vs.

RESPONDENT: MAN SINGH SURAT SINGH PADVI & ORS.

DATE OF JUDGMENT14/02/1978

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. BEG, M. HAMEEDULLAH (CJ) KRISHNAIYER, V.R. FAZALALI, SYED MURTAZA SHINGAL, P.N. SINGH, JASWANT TULZAPURKAR, V.D.

CITATION:  1978 AIR  916            1978 SCR  (2) 856  1978 SCC  (1) 615

ACT: West Khandesh Mehwassi Estate (Proprietary Rights  Abolition etc.)  Regulation,  1961 included in the Ninth  Schedule  as Item  155--Constitutional validity is no longer open on  the around  of  violation  of  Art 19(1)(f),  when  once  it  is included in the protective umbrella of the Ninth Schedule.

HEADNOTE: There  were  six estates of Tribal  Chiefs  called  Mehwassi Estates, in West Khandesh district.  The Bombay Land Revenue Code, 1879 was made applicable to the Mehwassi Estates by s. 3  of the West Khandesh Mehwassi Estates  Regulation,  1949, and  Section 4 of this Regulation also made  applicable  all other  Acts passed by the Central or the State  Legislatures which  were  in  force  in  other  parts  of  West  Khandesh District.  This included, inter alia, the Bombay Tenancy and Agricultural Lands Act, 1948, which was amended from time to time.   Respondent  No.  1 the owner  of  one  such  Estate, namely, Kathi Estate became an occupant of the  agricultural lands  forming  part  of  the Estates as  a  result  of  the application of the Bombay Land Revenue Code and the  persons who  were  cultivating  these lands  under  him  became  his tenants, and their relationship was governed by the  Tenancy Act, 1948.  By virtue of ss. 32 to 32R of the Tenancy Act as amended  by Bombay Act 13 of 1956 and the order  dated  31st March  1957,  the tenants of the 1st respondent  became  the "deemed purchasers" of the lands held by them on 1st  April, 1957  and  the  1st respondent ceased to be  the  owner  and became  entitled  to receive from his  permanent  tenants  a purchase price equal to six times the rent of the lands  and from  his ordinary tenants, a purchase price between  twenty to  eighty  times  the assessment.  By  reason  of  a  later amendment   to   the  Tenancy  Act,   adding   s.88D,   with retrospective   effect  from  1st  August,  1956   the   old relationship was restored so that the tenants did not become deemed purchasers" of the lands and the first respondent did (not  cease to be the owner of such lands.  As a  result  of

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%the  passing of West Khandesh Mehwassi Estate  (Proprietary Rights Abolition etc.) Regulation 1961 and a Notification of the  Governor of Bombay dt. 24th February, 1962,  conferring occupancy  rights  of inferior holders on  the  tenants  and abolishing  the  proprietary  rights of the  holder  of  the Mehwassi  Estates, the tenants of the 1st respondent  became the  occupants  of  the  land  held  by  them  and  the  1st respondent was deprived of all his rights, and he ceased  to be  entitled to receive anything from his inferior  holders, the  purchase  price receivable by him  from  his  permanent tenants  was reduced from six times the rent to three  times the  assessment  and  from  his  other  tenants,  he  became entitled  to  receive only purchase price at six  times  the assessment instead of twenty to eighty times the assessment. The 1st respondent challenged the constitutional validity of these  legislative measures and the High Court  struck  them down on the ground that they violated the  fundamental-right of the 1st respondent under Art. 19(1)(f) and they were  not protected  by  Art.  31A of-the  Constitution.   During  the pendency  of  the  said  appeal  by  certificate,  the  1961 Regulation  was included in the Ninth Schedule, as Item  No. 155. Allowing the appeal by certificate the Court HELD: The effect of the inclusion in the Ninth Schedule  was that  the west Khandesh Mehwassi Estate (Proprietary  Rights Abolition etc.) Regula- 857 tion,  1961 was immunised from challenge on the ground  that it  was  inconsistent with or took away or abridged  any  of the-  rights conferred by Part III of the  Constitution  and hence  its  constitutional  validity  could  no  longer   be assailed  on  the  ground that it  violated  Art.  19(1)(f). Article  31B  and the Ninth Schedule, cured the  defect,  if any,  in  the  West Khandesh  Mehwassi  Estate  (Proprietary Rights  Abolition etc.) Regulation Act 1961. as regards  any unconstitutionality alleged on the ground of infringement of fundamental  rights  and by the express words of  Art.  31B, such  curing  of the defect took  place  with  retrospective operation from the date on which this regulation was enacted by  the Governor.  This Regulation, even if  inoperative  or void  at  the  time when it was issued by  the  Governor  on account of infringement of Art. 19(1)(f) of the Constitution assumed  full  force,  and  vigour  from  the  date  of  its enactment by reason of. inclusion in the Ninth Schedule [859 A-H] Jagannath  v. Authorised Officer, Land Reforms [1972] 1  SCR 1056 at 1070 referred to. [The    Court   directed   the   Central    Government    to sympathetically  consider.  if  lands forming  part  of  his Estate  have been included in his assessment of  wealth  tax and if the income therefrom has been assessed to income-tax, whether any such tax recovered from him for the period  from and  after the date of coming into force of  the  Regulation may in all fairness be refunded to him]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2212  of 1969. From the judgment and Order dated 1st, 2nd and 3rd of  April 1968  of the Bombay High Court in Special Civil  Application No. 1452 of 1964. H.  R..  Gokhale,  A. R. Antule and M. N.  .Shroff  for  the Appellant.

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R.  P.  Bhati,  B.  R. Agarwala and  ’P.   B.  Agarwala  for Respondent No. 1. V. N. Ganpute for Respondents Nos. 6-9. P. P.. Rao and A. K. Ganguli for Respondents Nos. 10-13. T. Y. S. Narasimhachari for the Intervener. The Judgment of the.  Court was delivered by BHAGWATI, J.-This appeal by certificate is directed  against a  judgment  of a Division Bench of the  Bombay  High  Court invalidating  :a  notification  dated  24th  February,  1962 issued  by  the Governor of Maharashtra in exercise  of  the power  conferred under Sub-Para (1) of Para 5 of  the  Fifth Schedule to the Constitution and the West Khandesh  Mehwassi Estate, (Proprietary Rights Abolition etc.) Regulation, 1961 issued by the Governor of Maharashtra under Sub-Para (2)  of Para,  5  ,of the Fifth Schedule to the  Constitution  after obtaining   the   assent  of  the  President.    These   two legislative  measures were struck down by the High Court  on the  ground that they violated the fundamental right of  the 1st respondent under Article 19(11)(f) of the  Constitution. The  question  whether  there was any  infringement  of  the fundamental right of the I st respondent under Article 19(1) (f)  as,  a result of these two legislative  measures  would have raised a highly debatable issue, but if is  unnecessary to  consider  it in this appeal since,  subsequent  to,  the judgment  of  the  High Court, the  West  Khandesh  Mehwassi Estate  Proprietary Rights Abolition etc.) Regulation,  1961 has been included 858 as  Item No. 155 in the Ninth Schedule by  the  Constitution (40th  Amendment)  Act, 1976.  We shall  briefly  state  the facts  in  so far as. necessary for  understanding  how  the question  of  validity  of  the  notification   dated   24th February,  1962  and  the  West  Khandesh  Mehwassi   Estate (Proprietary  Rights Abolition etc.) Regulation, 1961  arose for consideration before the Court. There  were  at  all material times six  estates  of  Tribal Chiefs  called Maswassi estates in West  Khandesh  district. These Mehwassi estates were "scheduled area" under Art.  244 read  with the Fifth Schedule to the Constitution  and  were "partially excluded area" under section 91 of the Government of  India Act, 1935 and the 1st respondent was the owner  of one  such  estate  called Kathi Estate  which  comprised  99 villages  in  the State of Maharashtra.   The,  Governor  of Bombay,  in exercise of the power conferred  by  sub-section (1)  and (2) of section 92 of the Government of India  Act,- 1935,  made a Regulation called the West  Khandesh  Mehwassi Estates  Regulation,  1949  which applied  to  the  Mehwassi estates  including  the Kathi Estate belonging  to  the  1st respondent.   The Bombay Land Revenue Code, 1879  was,  made applicable  to  the  Mehwassi  Estates  subject  to  certain modifications,  by  section  3 of this  Regulation  and  the effect  of section 4 was to make applicable to the  Mehwassi Estates all- other Acts passed by the Central, or the  State legislature  which  were  in force in other  parts  of  West Khandesh  District.  which included inter  alia  the  Bombay Tenancy  and  Agricultural  Lands  Act,  1948   (hereinafter referred  to  as  the  Tenancy  Act).   The  result  of  the application  of the Bombay Land Revenue, Code, 1879  to  the Mehwassi  Estates was that the 1st respondent, who  was  the holder  of  the  Kathi Estate, became  an  occupant  of  the agricultural  lands  forming  part of that  Estate  and  the persons  who were cultivating these lands under  him  became his  tenants  and  by reason of  the  applicability  of  the Tenancy Act 1948, that Act governed the relationship between the  1st respondent and the tenants.  The Tenancy Act,  1948

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was  amended by Bombay Act 13 of 1956 which came into  force on 1 st August, 1 956 and in exercise of the power conferred under  section  32H(2), the Government of Bombay  issued  an order on 31st March, 1957 fixing the maximum purchase  price payable  by  ordinary, i.e., non-permanent tenants  for  the deemed  purchase of the lands cultivated by them inter  alia in  the villages forming part of the Mehwassi Estates.   The combined effect of sections 32 to 32R of the Tenancy Act and the order dated 31st March, 1957 was that the tenants of the 1st  respondent  became the deemed purchasers of  the  lands held  by  them  on 1st April, 1957 and  the  1st  respondent ceased to ’be the owner and became entitled to receive  from his  permanent tenants a purchase price equal to  six  times the  rent  of the lands and from his,  ordinary  tenants,  a purchase  price  between  twenty  to  eighty  times  of  the assessment. Thereafter   on   24th  February,  1962  the   Governor   of Maharashtra issued a Notification under Sub-Para (1) of Para 5  to  the Fifth Schedule to the Constitution  and  by  this Notification the Governor was pleased to direct that  Bombay Act  13 of 1956, which amended the Tenancy Act, 1948,  shall apply to Mehwassi Estates, and also added section 88D in the Tenancy  Act,  1948 which provided that, save  as  otherwise provided in any other enactment for the time being in force, nothing  in sections 32 to 32R shall apply to  any  Mehwassi land and these 859 directions were given retrospective effect from 1st  August, 1956.   The effect of this notification was to  restore  the relationship  which existed between the 1st  respondent  and his tenants immediately prior to 1st April, 1957 so that the tenants  did not become deemed purchasers of the lands  held by them and the 1st respondent did not cease-to be the owner of  such lands.  The Governor of Bombay issued on  the  same day,  i.e., 24th February, 1962, the West Khandesh  Mehwassi Estate (Proprietary Rights Abolition etc.) Regulation,  1961 in  exercise  of the power conferred under Sub-Para  (2)  of Para  5  of  the Fifth Schedule to  the  Constitution  after obtaining   assent-of   the  President.    This   Regulation conferred  occupancy rights on inferior holders and  tenants and  abolished the proprietary rights of the holders of  the Mehwassi  Estates.  The result was that the tenants of  the, 1st  respondent became occupants of the lands held  by  them and the 1st respondent was deprived of all his rights and he ceased to be entitled to receive anything from his  inferior holders,  the  purchase price receiveable by him  from,  his permanent  tenants  was reduced from six times the  rent  to three  times the assessment and from his other  tenants,  he became entitled tot receive only purchase price at six times the  assessment  instead  of  twenty  to  eighty  times  the assessment.   The 1st respondent was seriously  affected  by the  Notification  dated 24th February, 1962 and  the;  West Khandesh Mehwassi Estate (Proprietary Rights Abolition etc.) Regulation, 1961 and he, therefore, filed a petition in  the High Court challenging the constitutional validity of  these two  legislative  measures.   The High  Court,  as  we  have already  pointed  out,  struck  down  these  two  pieces  of legislation on the ground that they violated the fundamental right of the 1st respondent under Article 10(1) (f) and they were  not  protected by Article 31 A  of  the  Constitution. This view taken by the High Court is assailed in the present appeal filed by the State after obtaining certificates  from the High Court. Now, it appears that Subsequent to the judgment of the  High Court  and whilst the appeal was pending in this Court,  the

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Ninth Schedule was as amended by the Constitution  (Fortieth Amendment)  Act, 1976 by the inclusion of the West  Khandesh Mehwassi   Estate   (Proprietary  Rights   Abolition   etc.) Regulation, 1961.  The effect of the inclusion was that  the West Khandesh Mehwassi Estate (Proprietary Rights  Abolition etc.)  Regulation, 1961 was immunised from challenge on  the ground  that  it  was  inconsistent with  or  took  away  or abridged  any  of the right,-, conferred by Part HI  of  the Constitution and hence its constitutional validity could  no longer  be assailed on the ground that it  violated  Article 19(1)  (f).   Article 31B and the Ninth Schedule  cured  the defect,  if  any,  in  the  West  Khandesh  Mehwassi  Estate (Proprietary  Rights  Abolition etc.)  Regulation,  1961  as regards  any  unconstitutionality alleged on the  ground  of infringement of fundamental rights and by the express  words of  Article 31B, such curing of the defect took  place  with retrospective operation from the date on which this  Regula- tion was enacted by the Governor.  This Regulation, even  if inoperative  or void at the time when it was issued  by  the Governor on account of infringement of Article 19(1) (f)  of the  Constitution,  assumed full force and vigour  from  the date  of  its enactment by reason of its  inclusion  in  the Ninth  Schedule,  (Vide : Jagannath v.  Authorised  Officer, Land 860 Reforms.(1)   and  it  must  accordingly  be  held   to   be constitutionally valid.  Now, it was not disputed on  behalf of  the  1st respondent that if the West  Khandesh  Mehwassi Estate (Proprietary Rights Abolition etc.) Regulation,  1961 is  free from any constitutional blemish,  the  Notification dated  24th February, 1962 cannot, standing by  itself,  be- successfully assailed as invalid, for, far from taking  away any rights of the, 1st respondent, it restored his  original rights  as  occupant.  It was a legislative measure  to  his advantage  and not to his detriment.  The challenge  to  the constitutional  validity  of  the  Notification  dated  24th February, 1962 must also, therefore, be rejected. We accordingly allow the the Appeal, set aside the  judgment of  the High court  and declare the Notification dated  24th february,  1962  and the  West  Khandesh  Maheshwary  Estate (Property  Rights  Abolition etc.) Regulation,  1961  to  be constitutional valid. There will be no order as to costs. We are told by learned counsel appearing on behalf of  first respondent  that the lands forming part of his  estate  have been  included in his assessment of wealth tax and  also  in income has been assessed to income-tax.  We do not know  how far  this.  is  true.   But in case it  is  so  the  Central Government may sympathetically consider whether any such tax recovered from the first respondent from and after the  date of  coming into force of the West Khandesh  Mehwassi  Estate (Proprietary Rights Abolition Etc.) Regulation,. 1961 may in all fairness be refunded to him. S.R.                                Appeal aIlowed. (1) (1972) 1 S.C.R. 1056 at 1070. 861