TaxTMI 
TaxTMI 
1980 (5) TMI 100
X X X X Extracts X X X X
X X X X Extracts X X X X
....legislative attention. And when litigative confrontation with large holders has imperilled the implementation of this vital developmental strategy, Parliament, in exercise of its constituent power, has sought to pre-empt effectively and protect impregnably such statutory measures by enacting Art. 31A as the very first amendment in the very first year after the Constitution came into force. Consequent on the Constitution (First Amendment) Act, 1951, this court repelled the challenges to land reform laws as violative of fundamental rights in State of Bihar v. Kameshwar Singh but the constant struggle between agrarian reform legislation and never-say-die litigation has led to a situation where every such enactment has been inevitably accompanied by countless writ petitions assailing its vires despite Art. 31A, not to speak of the more extensive Chinese walls like Arts. 31B, 31C and 31D. The forensic landscape is cluttered up in this court with appeals and writ petitions and petitions for leave to appeal, the common feature of each of which is a challenge to the validity of one or other of the State laws imposing ceiling on land holding in an inegalitarian milieu of the landed few and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s on agrarian reform measures we do not rest our decision on that provision. Independently of Art. 31A, the impugned legislation can withstand constitutional invasion and so the further challenge to Art. 31A itself is of no consequence. The comprehensive vocabulary of that purposeful provision obviously catches within its protective net the present Act and, broadly speaking, the antiseptic effect of that Article is sufficient to immunise the Act against invalidation to the extent stated therein. The extreme argument that Art. 31A itself is void as violative of the basic structure of the Constitution has been negatived by my learned brother, Bhagwati, J. in a kindred group of cases of Andhra Pradesh. The amulet of Art. 31A is, therefore, potent, so far as it goes, but beyond its ambit it is still possible, as counsel have endeavoured, to spin out some sound argument to nullify one section or the other. Surely, the legislature cannot run amok in the blind belief that Art. 31A is omnipotent. We will examine the alleged infirmities in due course. It is significant that even apart from the many decisions upholding Art. 31A, Golak Nath's case decided by a Bench of 11 Judges, while holdin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n era whose greatest need is steadfastness of thought and purpose, this Court which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion. should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions". It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority "merely because it was badly argued, inadequately considered and fallaciously reasoned". And none of these misfortunes can be imputed to Bharati's case (supra). For these reasons, we proceed to consider the contentions of counsel on the clear assumption that Art. 31A is good. Its sweep is wide and indubitably embraces legislation on land ceilings. Long years ago, in Ranjit v. State, a Constitution Bench, speaking through Hidayatullah, J., dwelt on the wide amplitude of Art. 31A, referred to Precedents of this Court on agrarian reform vis a vis Art. 31A and concluded that equitable distribution of lands, annihilation of monopoly of ownership by imposition of ceiling and reg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tunity to the agrarian masses to become a major rural resource of the nation. How to maximise surplus land ? By imposition of severe ceiling on ownership of land holdings consistently with the pragmatics of rural economies and the people's way of life. The pervasive, pivotal concepts are, therefore, ceilings on holdings and surrender of surplus land. The working unit with reference to which the legal ceiling is set is the realistic family. So, the flexible concept of 'family' also becomes a central object of legislative definition. Having regard to the diversity of family units among the various communities making up Indian society and having the object of the legislation as the guiding principle, the statute under consideration has given a viable and realistic definition of 'family', with provision for some variables and special situations. The machinery for implementing the statute is also set up with adjudicative powers, including appeals. Compensation, without invidious discrimination, has to be paid, according to the scheme, when surplus land is taken away and for the determination and payment of such compensation a whole chapter is devoted. The disposal of land secured as sur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt. This backdrop suggests that agrarian legislation, organised as egalitarian therapy, must be judged, not meticulously for every individual injury but by the larger standards of abolition of fundamental in equalities, frustration of basis social fairness and shocking unconscionableness. This process involves detriment to vested interests. The perfect art of plucking the goose with the least squealing is not a human gift. A social surgery, supervised by law, minimises, not eliminates, individual hurt while promoting community welfare. The court, in its interpretative role, can neither be pachydermic nor hyperreactive when landholders, here and there lament about lost land. We will examine the contentions form this perspective, without reference to Arts. 31B, C and D. Justice Cardozo has a message for us when he says: Law and obedience to law are facts confirmed everyday to us all in our experience of life. If the result of a definition is to make them seem to be illusions, so much the worse for the definition; we must enlarge it till it is broad enough to answer to realities. Shri Mridul, who led the arguments, mounted a three- point attack. Article 31A(1) (ii) was the target of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing the ceiling area applicable to a tenure holder, any transfer of land made after the twenty-fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account . Provided that nothing in this sub-section shall apply to: (a) a transfer in favour of any person(including Government) referred to in sub-section(2); (b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument riot being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of the family. There is no blanket ban here but only qualified invalidation of certain sinister assignments etc. Counsel weaves gossamer webs which break on mere judicial touch when he argues that transfer 'in good faith and for adequate consideration' have been unconstitutionally exempted. The bizarre submission is that 'adequate consideration' is an arbitrary test. We reject it without mere discussion. The second limb of the submission is that while s. (6) directs the authority to ignore certain transfers it does not void it....
X X X X Extracts X X X X
X X X X Extracts X X X X
....even where direct relief does not flow from the judicial process, State action to avoid anomalies may well be called for in the light of genuine hardships. Shri Veda Vyas, appearing in W.P. No. 228 of 1979 and SLP No. 2599 of 1978, pleaded powerfully for gender justice and sex equity because, according to his reading, the Act had a built-in masculine bias in the definition of 'family unit' and allocation of ceiling on holdings, and therefore, perpetrated unconstitutional discrimination. Indeed, his case illustrated the anti-woman stance of the statute, he claimed. The submission is simple, the inference is inevitable but the invalidation does not follow even if Art. 31A is not pressed into service to silence Art. 14. We will formulate the objections and examine their merit from the constitutional perspective. Maybe, there is force in the broad generalisation that, notwithstanding all the boasts about the legendary glory of Indian womanhood in the days of yore and the equal status and even martial valour of heroines in Indian history, our culture has suffered a traumatic distortion, not merely due to feudalism and medievalism, but also due to British imperialism. Indeed, the Freedom....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rrigated land (including land held by other members of his family), besides, each of the members exceeding five and for each of his adult sons who are not themselves tenure holders or who held less than two hectares of irrigated land, two additional hectares of irrigated land or such additional land which together with the land held by such adult son aggregates to two hectares subject to a maximum of six hectares of such additional land Explanation: The expression 'adult son' in clause (a) and (b) includes an adult son who is dead and has left surviving behind him minor sons or minor daughters (other than married daughters) who are not themselves tenure holders or who hold land less than two hectares of irrigated land; The anti-female kink is patent in that the very definition of family discloses prejudice against the weaker sex by excluding adult daughters without providing for any addition to the ceiling on their account. In the case of an adult son, s. 5(3) (a) of the Act provides for the addition of two hectares of irrigated land for each of his tenure holder's) sons where the family has a strength of less than five. Section 5(3)(b) similarly provides for two additional hectar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....out maiming woman's ownership no submission to destroy this measure can be permitted using sex discrimination as a means to sabotage what is socially desirable. No woman s property is taken away any more than a man's property. Section 5(3) reduces daughters or wives to the status of stooges. It forbids excessive holdings having regard to rural realities of agricultural life. 'Family' is defined because it is taken as the unit for holding land-a fact of extant societal life which cannot be wished away. This is only a tool of social engineering in working out the scheme of setting limits to ownership. Section 5(3) does not confer any property on an adult son nor withdraw any property from an adult daughter. That provision shows a concession to a tenure-holder who has propertyless adult sons by allowing him to keep two more hectares per such son. The propertyless son gets no right to a cent of land on this score but the father is permitted to keep some more of his own for feeding this extra mouth. If an unmarried daughter has her own land, this legislation does not deprive her any more than a similarly situated unmarried son. Both are regarded as tenure-holders. The singular grievanc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....use" But it is not. It must be said in fairness, that- the legislature must act on hard realities, not on glittering ideals which fail to work. Nor can large landholders be allowed to outwit socially imperative land distribution by putting female discrimination as a mask. There is no merit in these submissions of Sri Veda Vyas. In the view we have taken, we need not discuss the soundness of the reasoning in the ruling in Sucha Singh v. State(1). The High Court was right, if we may say so with respect, in its justification of the section when it observed: The subject of legislation is the person owning or holding land and not his or her children. Section 5 provides for the measure of permissible are that a person with one or more adult sons will be allowed to select out of the area owned or held by him and his children,- whether male or female, have not been given any right to make a selection for himself or herself. It cannot. therefore, be said that this section makes a discrimination between a son and a daughter in respect of his or her permissible area on the ground of sex alone. The legislature is the best Judge to decide how much area should be left as permissible area wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... we see no force in counsel's contention which we may now state. The thrust of his argument, omitting subsidiary submissions which we will take up presently, is that so long as consolidation proceedings under the sister statute (U.P. Consolidation of Holdings Act, 1953) are under way, two consequences follow. Firstly, all other legal proceedings including the ceiling proceedings must abate. A notification under s. 4 of the Consolidation Act has been issued in regard to many areas in the State. Consolidation has been completed in most places but is still pending in some places. Counsel's argument is that once a notification under s.4 has been issued, s. 5(2)(a) operates. This latter provision states that every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land laying in the area, or, for declaration or ad judication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference of revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for equity and equality, compensation and other benefits when finalising the consolidation scheme. Section 19(1) (b) ensure that "the valuation of plots allotted to a tenure- holder subject to deductions, if any, made on account of contributions to public purposes under this Act is equal to the valuation of plots originally held by him. Provided that, except with the permission of the Director of Consolidation, the area of the holding or holdings allotted to a tenure-holder shall not differ from the area of his original holding or holdings by more then twenty five percent of the latter." When land ii contributed for public purposes compensation is paid in that behalf in the event of illegal or unjust orders passed, appellate and revisory remedies are also provided. On such exchange or transfer taking place, pursuant to the finalisation of the consolidation scheme, the holding, upto the ceiling available to the tenure holder, will be converted into the new allotment under the consolidation scheme . Thus, we see no basis in justice nor gross arbitrariness in the continuance of the land reforms proceedings even when consolidation proceedings are under way. We are not all impressed wi....