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Sadashiv Karu Jamdade and ors. Vs. the State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 650 of 1971
Judge
Reported inAIR1977Bom355
ActsLand Acquisition Act, 1894 - Sections 3, 4, 4(1), 5-A and 6; Constitution of India - Articles 14, 14, 21, 22, 22(4), 22(5), 22(7), 32, 226, 226(1), 352, 359 and 359(1); Constitution of India (Thirty-eighth Amendment) Act, 1975; Defence of India Act, 1962 - Sections 3(2), 3(15) and 40; Defence of India Rules - Rule 30(1); Code of Criminal Procedure (CrPC) , 1908 - Sections 491(1); Income-tax Act, 1961 - Sections 269(1), 269-C, 269-D, 269-E, 269-F, 269-G, 269-H, 269-I and 269-R; Kerala Building Tax Act, 1961; Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961
AppellantSadashiv Karu Jamdade and ors.
RespondentThe State of Maharashtra and ors.
Appellant AdvocateRaghvendra A. Jahagirdar, Adv.
Respondent AdvocateR.W. Adik, Adv. General, ;C.J. Sawant, Addl. Govt. Pleader, ;D.R. Dhanuka and ;D.P. Hegde, Asstt. Govt. Pleaders
Excerpt:
a) the case dealt with acquisition of land, which was done for resettlement of persons affected by the project - it was ruled that the acquisition was for public purpose, as contemplated by sections 3(f),4 and 6 of the land acquisition act, 1894.;b) the case dealt with the validity of suspension of proceedings, which were challenged on the ground of violation of right given under article 14 of the constitution of india - it was ruled that the proceedings could not be suspended without ascertaining whether there was actually a violation of the right under article 14 of the constitution.;c) the acquisition of land was done to resettle the project-affected persons and the classes of holders were determined on the basis of their total holding - it was ruled that under article 14 of the.....chandurkar, j. 1. this petition by the three petitioners, out of whom petitioner no, i is the father and petitioners nos, 2 and 3 are his sons, is directed against a notification issued by the commissioner, poona division, poona, under section 6 of the land acquisition act, and a government resolution no. rpa-1069-r. i. dated 31st october 1969.2. field survey no. 534/4 area 3 acres 6 gunthas is owned by petitioner no. 2 and field survey no. 579/48 stands in the name of the petitioner no. 3, though both these fields originally stood in the name of petitioner no. 1. a notification came to be issued by the commissioner, poona division, under section 6 of tbe land acquisition act acquiring a part of the area of survey no. 584/4 and the entire survey no. 579/4b. this notification refers to.....
Judgment:

Chandurkar, J.

1. This petition by the three petitioners, out of whom petitioner No, I is the father and petitioners Nos, 2 and 3 are his sons, is directed against a notification issued by the Commissioner, Poona Division, Poona, under Section 6 of the Land Acquisition Act, and a Government Resolution No. RPA-1069-R. I. dated 31st October 1969.

2. Field survey No. 534/4 area 3 acres 6 gunthas is owned by petitioner No. 2 and field survey No. 579/48 stands in the name of the petitioner No. 3, though both these fields originally stood in the name of petitioner No. 1. A notification came to be issued by the Commissioner, Poona Division, under Section 6 of tbe Land Acquisition Act acquiring a part of the area of survey No. 584/4 and the entire survey No. 579/4B. This notification refers to several other fields which, according to the notification, were needed lor a public purpose which was stated as for 'resettlement of the persons likely to be affected due to Krishna Dhom Project'. The Krishna Dhom Project is a project undertaken by the State of Maharashtra for construction of a dam at Dhom, According to the plan, this dam is to have canals for irrigation both on the left and the right banks of Krishna river and the total irrigable area which will he irrigated through these canals including the canals from the dam at Arphal is estimated to be 1, 59, 200 acres. The proposed expenditure for the Krishna Dhom Project is stated by the State Government to be Rupees 2550.92. The work on this project, according to the State Government, will affect 32 villages in the western part of Taluka Wai, and a village by name Vyahalis out of these 32 villages will be fully submerged. The Gaothan of 12 of the 32 villages are expected to be fully submerged and the remaining villages will be partially submerged. As a result of this submergence the total number of persons affected will be 17,867 and, according to the Revenue Records, the Khatedars whose lands will be affected will be 2967 in number, The total land which will be submerged as a result of the Dhom Dam is expected to be 6433 acres.

3. Now, the case of the State Government is that until lands are acquired tor resettlement of the persons whose land will be affected by the construction of the dam, possession of their lands cannot be taken. This, therefore first necessitated acquisition of land for the purposes of settlement of the persons whose lands would be submerged as a result of the construction of the dam and as a matter of policy, the Government has decided to acquire, for the purposes of resettlement, lands from the Khatedars from the benefited zone, that is, the area falling within the command area of the said project. This decision was taken by a meeting of the senior officers of the Government including the Commissioner of Poona, the Director of Settlement and Secretary to the General Administration Department, the Chief Engineer in charge of the Project, the Collectors of Satara and Sangli and other senior officials held on 13th July 1968. They had originally made out a schedule for guidance in the matter of acquisition of the land and their decision was approved by the Government. This decision came to be formulated in the form of a Government Resolution which is also impugned in this petition.

4. Since this Government Resolution has been vehemently attacked we may briefly refer to the salient features of this Government Resolution dated 31st Oct. 1969, This Resolution referred to the fact that since a separate machinery for speedy resettlement of the project-affected persons was necessary, a Directorate of Resettlement was created in September 1965, The functions of the Director of Resettlement were stated as follows:--

(1) Allotment of alternative lands.

(2) Development of alternative lands referred to in (1) above.

(3) Provision of drinking water supply in new village sites.

(4) Provision of primary schools in village sites.

(5) Offering employment opportunities to the displaced persons in State as well as private sector enterprises.

(6) Grant of loan facilities for village housing in new sites.

(7) Payment of compensation (a) in cash (equivalent to the difference between the value of the lands acquired from the people and the value of alternative lands provided to them and (b) in full where no such alternative lands are given.

(8) Wherewithals for good agriculture.

(9) Provision of approach and internal roads in the new sites.

(10) Supply of electricity for domestic as well as agricultural purposes.

(11) Provision of community works. These functions indicate that the task of resettlement was to be handled by the Director in all its aspects and it was not restricted only to making available of agricultural land for cultivation to those whose lands were submerged as a result of the Dhom Project. The task of resettlement included the re-establishment of new villages altogether with all the necessary facilities incidental to the location of Abadi or village sites. Indeed this was made further clear in paragraph 6 of the impugned Government Resolution which created an Advisory Committee at the District level and the essential items of resettlement were stated in paragraph 6 to be involving the following items:--

(1) Selection of Gaothan sites,

(2) Selection of alternative agricultural land,

(3) Providing civic amenities in new Gaothan, and

(4) Such other concessions as are necessary for the resettlement of the affected families. The selection of Gaothan sites had to be made in consultation with the project-affected persons. With regard to the alternative agricultural land, the following guidelines were stated:--

'It has been decided to grant alternative agricultural land to Project Affected Persons as far as possible. This mainly depends on the availability of land in the vicinity of the Project. The land that is to be granted is procured from the following sources:--

(1) Government waste land.

(2) Government forest and land either Revenue or Reserved.

(8) Surplus land available under the Land Ceiling Act.

(4) Galper lands.

If the land referred to above is either not adequate to meet the demand of the Project Affected persons or is not available at all then the land is acquired from the benefited zone and distributed to those whose lands are acquired for the projects. However, care is taken to see that the persons are left with economic 'unit or holding. In order to acquire lands in this way from benefited zone, Government has laid down the slab system, which is as follows:-- 10 acres or less than10 acres Nil.10 to 15 acres 2 acres.15 to 30 acres 5 acres,More than 30 acres 5 acres plus theentire land whichis more than30 acres'.

So far as distribution of land is concerned, the Government Resolution referred to the fact that it was not always possible to grant lands equivalent to what the project-affected persons have lost, but it was stated that efforts were made 'to grant to displaced Khatedars at least 4 acres of dry land or two acres of seasonally irrigated land or one acre of irrigated land wherever feasible'. The civic amenities which were to be provided were basic civic amenities, that is, drinking water wells, school buildings, temples, Samaj Mandirs, internal and approach roads, etc. in the new Gaothan from project funds.

5. The Government has estimated that 4902 acres and 23 gunthas of laud is required for rehabilitating project-affected persons of Krishna Dhom Project. According to the Government, the petitioners held an area of 14 acres and 35 1/2 gunthas out of which only 2 acres and 35 gunthas were perennial Bagayat lands and the land that was being acquired was only 3 acres of Jirayat land.

6. Now, when originally a notification under Section 4 of the Land Acquisition Act was issued in respect of the petitioners' land, an enquiry under Section 5-A of the Land Acquisition Act was made and after the Land Acquisition Officer had made his report to the Commissioner, the impugned notification came to be issued. The petitioners' case before the Land Acquisition Officer, when objections were submitted under Section 5-A of tile Land Acquisition Act, appeared to be that there was already a partition on 4th February 1964 as a result of which joint family land was divided between the petitioner No. 1 and his four sons and the lands which had been notified for the purposes of acquisition had gone to the share of petitioners Nos, 2 and 3. Thus according to the petitioners, the holding of each of the sons did not exceed three acres and, therefore, no part of the land could be acquired. In other words, in the enquiry under Section 5-A of the Land Acquisition Act, a partition was set up with a view to show that the holding of each of the petitioners was less than 8 or 10 acres and, therefore, their land should not be acquired. Petitioner No. 1 specifically stated that he had nothing more to add which meant that he did not want to raise any other objection to the acquisition. This objection was rejected by the Land Acquisition Officer and one of the contentions raised in the petition by the petitioners is that the Land Acquisition Officer had mechanically given effect to the Government policy Resolution without applying his mind to the facts of each case, When a notification under Section 6 of the Land Acquisition Act came to be issued on 17th December 1970, the petitioners filed this objection on 25th February 1971 challenging the acquisition proceedings.

7. So far as the present petitioners are concerned, the challenge before us mainly turned on the ground of discrimination resulting from the slab system incorporated in the Government Resolution as a criterion for acquisition of land. But before we take up the challenge on the ground of Article 14 of the Constitution of India, we will dispose of two other challenges which have been raised by the learned Counsel for the petitioners in this petition.

8. It was contended at the outset that since under the provisions of the Land Acquisition Act land could be acquired only for a public purpose, the purpose for which the land in question is being acquired cannot be said to be a public purpose because the only object of the State Government is to take land from the petitioners and hand it over to some other person who may be one of the project-affected persons. Thus, according to the learned Counsel, the acquisition of land is for the benefit of one single individual and cannot, therefore, be said to be for public purpose. The learned Counsel for tbe petitioners placed reliance on the decision of Privy Council in Hamabai Framjee Petit v. Secretary of State AIR 1914 PC 20. Now, it is well established that no exhaustive definition of the expression 'public purpose' is possible. The definition of public purpose in Section 3(f) of the Land Acquisition Act is an inclusive definition. It will, therefore, have to be decided on the facts and circumstances of each case whether the purpose for which acquisition is sought to be made is a public purpose. It is also well established that a public purpose must include the welfare of a large section of the community as opposed to the private comfort or advantage of the members of the public (See Arnold Rodricks v. State of Maharashtra, : [1966]3SCR885 ). The purposes for which land is being acquired have been elaborately set out in the impugned Government Resolution and there is no doubt that the land which is being acquired by the impugned notification is acquired for the purposes of resettlement of project-affected persons-What would be the scope and extent of resettlement is also made clear in the Government Resolution. In a welfare State it was eminently proper for the Government to see that the project-affected persons, who are uprooted from the land which would be submerged under the dam, are resettled by the creation of new village sites where proper civic amenities will have to be made available to such resettled persons. What would be the nature of the basic civic amenities which the Government intends to make available to the resettled persons is also made clear in the Government Resolution. Now, in our view, it is too late in the day to even urge that when land is required for the establishment of a new village site, such a purpose cannot be called a public purpose, The whole argument of the learned Counsel on behalf of the petitioners is based on the assumption that their land is being acquired for the benefit of any particular individual. In fairness to the learned Counsel for the petitioners, it must, however, be stated that he conceded that it was not possible for the petitioners to name any particular individual for whose benefit the land was going to be acquired. That the land was being acquired for the benefit of the community as such--the community consisting of the project-affected persons--is now beyond dispute. The decision of the Government as contained in the impugned resolution shows that it bas arrived at a certain figure with regard to the requirement of land in order to resettle the project-affected persons. Obviously, the acquisition is intended to build up a land pool out of which land would be made available for different uses such as allocation of building sites to individuals., reservation of land for communal purposes., land over which buildings will be construct-ed and wells will be dug and it is difficult to entertain an argument that when land is acquired for building up such a pool of land, the land is being acquired from the petitioners for the benefit of any particular in-dividual. We have, therefore, no doubt in this case that resettlement of project-affected persons was clearly a public purpose for which a notification for acquisition of land under the provisions of the Land Acquisition Act could validly be taken, If any authority is needed for the proposition that acquisition of land for the purposes of village sites is a public purpose, it can be found in the decisions of the Punjab and tbe Patna High Courts relied upon by the learned Advocate General in Tilak Ram v. State of Punjab , and Muhammad Oamar v. State of Bihar : AIR1966Pat420 . In Tilak Ram v, State of Punjab, a Division Bench of the Punjab High Court took the view that there was nothing illegal or unjust in the Government taking steps to rehabilitate thousands of persons who had been displaced as a result of acquisition of their land for a public purpose by acquiring land for them in the near vicinity of their original homes and resettle them on that land and such an object was a public purpose and it could not be placed on the same footing as a transfer of land from one individual to another. A Division Bench of the Patna High Court in Muhammad Oamar v. State of Bihar has also taken a similar view. The acquisition in that case was for rehabilitation and resettlement of those villagers whose lands were taken away for what was known there as Hatia Project which was started for the construction of the factories and other buildings of Heavy Engineering Corporation at Hatia near Ranchi town and the question was whether acquisition for the rehabilitation and resettlement of the villagers whose lands had been taken away for the project was acquisition for public purpose. The Division Bench took the view that the rehabilitation of persons displaced by the acquisition made for the Corporation was a public purpose and land could be validly acquired.

9. The second contention raised by the learned Counsel for the petitioners was that the notification under Section 6 of the Land Acquisition Act was vitiated because what purported to be an enquiry under 6. 5-A of the Land Acquisition Act was in effect a farce of an enquiry because the Land Acquisition Officer was obliged to give effect to the scheme contained in the Government Resolution and the provisions of Section 5-A of the Land Acquisition Act cannot, therefore, be said to have been complied with.

10. Now, Section 5-A of the Land Acquisition Act requires a person interested in any land which has been notified under Section 4 to submit his objection to the acquisition to the Collector or the Land Acquisition Officer in writing. It is then obligatory on the Land Acquisition Officer to give the objector an opportunity of being heard either in person or by pleader and after making such enquiry as the Land Acquisition Officer thinks necessary, he has to make a report in respect of the land which has been notified under Section 4(1) to the Commissioner. The State Government has produced the entire record of the land acquisition proceedings. The proceedings show that the only objection to the acquisition made by petitioner No. 1, whose name alone appeared to be recorded in the Revenue Records as the owner of the land, was that he had orally partitioned the lands five years back and each of his sons was cultivating three acres of land. The obvious object of this objection was to show that in view of the impugned Government Resolution, since the second and the third petitioners had land less than 10 acres, their lands should not be acquired. The record shows that the petitioner No. 1 who on the entries in the Revenue Records, was the only person interested, was heard. He had produced before the Land Acquisition Officer a copy of the partition deed said to have been executed in 1964 on a general stamp paper of Rs. 3/-. The Land Acquisition Officer found that the partition deed was not a registered document, that the partition had not been given effect to in the Record of Rights and he, therefore, rejected the story of partition as not genuine. Now, when on facts the Land Acquisition Officer has held that the story of partition has not been proved, it is difficult to see how this report is open to challenge on the ground that the Land Acquisition Officer was mechanically giving effect to the impugned Government Resolution. Indeed it appears that if it could have been successfully shown to the Land Acquisition Officer that petitioners Nos. 2 and 3 have been separately holding land as a result of a valid partition, it may be that the acquisition proceedings would have been dropped in view of the policy of the Government as contained in the impugned Government Resolution, It is, therefore, difficult for us to accept the argument that the enquiry under Section 5-A of the Land Acquisition Act was mere farce and, therefore, the notification under Section 6 was vitiated.

11. We now come to the main debate which took place at the bar on the question as to whether any final orders could be passed in this petition in view of the fact that the impugned Government Resolution has been challenged on the ground of violation of the equal protection clause contained in Article 14 of the Constitution of India. The argument runs thus: The impugned Government Resolution contains a decision to acquire land only on the basis of the total holding of the Khatedar irrespective of the size of the family of each Khatedar and thus whatever may be the size of the family of the Khatedar, they are all treated in the same manner with regard to the extent of the liability of their lands to acquisition. Thus equal treatment is meted out to persons who are differently situated and there is, therefore, a violation of Article 14. Further, the President of India has issued a Proclamation under Article 359(1) of the Constitution of India which requires all proceedings pending in any Court for the enforcement of a right under Article 14 of the Constitution to be suspended for the period during which the Proclamations of Emergency made under clause (1) of Article 359 of the Constitution on 3rd December 1971 and on 27th June 1975 were both in force. Therefore, as long as any one of the two proclamations of Emergency continues to be in force, the proceedings must stand suspended in the same state as they were on 27th June 1975, that is, the date of the Proclamation under Article 359(1) of the Constitution of India. It is, therefore, argued that this Court must stay its hands and must not deal any further with the petition of the petitioners during the subsistence of the Proclamation of Emergency.

12. Now, the question as to what was the effect of the Presidential Proclamation on certain pending matters in which a challenge to the land acquisition proceedings was raised on the ground of violation of Article 14 was involved in a large number of cases. We have therefore heard the learned Counsel for the petitioners at considerable length and we have also heard Mr. Rane who is appearing as Counsel for the petitioner in Special Civil Application No. 2908 of 1974. Counsel for petitioners heavily relied on the decision of the Supreme Court in Makhan Singh v. State of Punjab, : 1964CriLJ217 , a decision on which the learned Advocate General appearing for the State of Maharashtra also heavily relies for the proposition that a mere mention of Article 14 in a petition could not have the effect of keeping the proceedings suspended and that the Court was entitled to go into the question as to whether a decision On the alleged violation of Article 14 of the Constitution was necessary for effectively determining the right, the violation of which has been complained of by the petitioner.

13. Since much turns on the construction that we shall place on the Presidential Proclamation of 27th June 1975, we propose to reproduce the provisions of Art, 359 as also the Presidential Proclamation. Article 359 of the Constitution reads as follows:--

'359: (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.

(1A) While an order made under clause (1) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.

(2) An order made as aforesaid may extend to the whole or any part of the territory of India.

(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.' It may be stated that clause (1A) above was added by the Constitution Thirty-eighth Amendment Act, 1975. The words 'enforcement of rights' are to be found also in Article 226 of the Constitution of India as also in Article 32 of the Constitution of India-Article 226(1) of the Constitution provides:

'226. (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.' The Proclamation issued by the President of India on 27th June 1975 reads as follows:--

'In exercise of the powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the rights ot any person (including a foreigner) to move any court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all proceedings pending in any Court for the enforcement of the abovementioned rights shall remain sus-pended, for the period during which the proclamation of emergency made under clause (1) of Article 352 of the Constitution on the 3rd December 1971 and on the 25th June, 1975 are both in force.

This order shall extend to the whole of the territory of India except the State of Jammu and Kashmir.

This order shall be in addition to and not in derogation of any order made before the date of this order under cl, (1) of Article 359 of the Constitution.'

The main contention on behalf of the petitioners as well as the one advanced by Mr. Rane is that the suspension of proceedings referred to in the latter part of the Presidential Declaration must be construed with regard to the State of the proceedings pending in a Court for the enforcement of a fundamental right either under Article 14, Article 21 or Article 22 with reference to 27th June 1975 on which day the Presidential Proclamation was issued. It is contended that the only criterion for finding out whether a proceeding falls within the latter part of the Presidential Proclamation is the nature of the relief asked for in the petition. It is urged that if the Court proceeds to hear the petition and disposes of the petition even by dismissing it, there will be no suspension of the proceeding, but there will be a termination of the proceeding which is not permissible in view of the express words in the latter part of the Proclamation. However, when it was put to the learned Counsel as to whether or not even an interim order could be passed in a proceeding, an alternative argument was advanced that it may be possible for the Court to ascertain whether Article 14 is involved in the case, but once it is found that the petitioner wants to urge for a relief based on the alleged violation of the right under Art, 14, the proceedings must then be stayed whatever may be the consequences. Indeed, the learned Counsel went to the extent of contending that once a petition is admitted, notwithstanding the fact that a challenge on the ground of Article 14 is not even possible on the facts alleged in the petition, no final orders in that petition could be made and the consequences of any particular injunction or a stay order issued in the proceedings may continue to the prejudice of the State or for the matter of that to the prejudice of any party whatsoever and such a consequence, if it results from the terms of the Presidential Proclamation, must necessarily follow.

14. On the other hand, it was contended by the learned Advocate General that before an order for suspension of the proceedings is passed, the Court is duty bound to see that the petitioner proves that he has a right, that there is a violation of such a right in the sense that he has a cause of action and that the proceeding is really a proceeding for enforcement of such a right. In other words, it is contended that before an order for suspension of the proceeding till the revocation of the Proclamation is made, the Court will have to decide whether the proceeding is for enforcement of a fundamental right.

15. Now, so far as a citizen is concerned, there can be no doubt that the fundamental right under Article 14 of the Constitution vests in him by the very provisions of the Constitution, The question, however, is whether when in a given proceeding a petitioner contends or alleges that his fundamental right under Article 14 has been violated and, therefore, the proceedings should remain suspended, the Court is bound to accept ipse dixit of a petitioner or whether it is open to the Court to go further into the matter and find out whether there is in fact any violation of a fundamental right and it is unable to give any relief to the petitioner because of the amended Presidential Proclamation in the matter of enforcement of the rights enumerated in the Presidential Declaration.

16. It is difficult for us to hold that merely a label given by a petitioner to the petition would be conclusive of the question as to whether the proceedings must stand suspended under the terms of the Presidential Proclamation of 27th June 1975. There can be no doubt that in a proceeding like the instant one, the petitioner seeks to enforce his alleged right under Article 14 against the State. What then is the effect when the Presidential Proclamation makes it imperative for the proceeding for enforcement of such a right to be suspended? The object of the Proclamation, which it does not seem possible to dispute, is that immunity is granted to the State during the Emergency against any challenge to the action of the State on the ground of violation of Article 14 of the Constitution. There can be DO doubt that the effect of the Presidential Proclamation is that in a pending proceeding the Court will not be able to make any order or issue any writ in order to enforce a fundamental right referred to in the Presidential Proclamation. That appears to us to be the object of suspension of these proceedings contemplated by the Presidential Proclamation. But it cannot be the object of the Presidential Proclamation that where a pending proceeding can be terminated without giving a relief amounting to enforcement of a fundamental right, the proceeding must still stand suspended. If the State is not going to be affected in any manner whatsoever by an order in a pending proceeding in the matter of enforcement of a fundamental right the violation of which is alleged by a petitioner, we fail to see why such a proceeding should remain suspended merely because it falls within the description of a proceeding for enforcement of a right referred to in the Proclamation. The scope of a declaration under Article 352(1) of the Constitution was considered at length by the Supreme Court in Makhan Singh's case cited supra : 1964CriLJ217 . The Supreme Court dealt with the scope of Article 359(1) in that case and it was observed as follows:--

'Since the object of Article 359(1) is to suspend the rights of the citizens to move any court, the consequence of the Presidential Order may be that any proceeding which may be pending at the date of the Order remains suspended during the time that the Order is in operation and may be revived when the said Order ceases to be operative; and fresh proceedings cannot be taken by a citizen after the order has been issued, because the Order takes away the right to move any court and during the operation of the Order, the said right cannot be exercised by instituting a fresh proceeding contrary to the Order, If a fresh proceeding falling within the mischief of Article 359(1) and the Presidential Order issued under it is instituted after Order has been issued, it will have to be dismissed as being incompetent. In other words, Article 359(1) and the Presidential Order issued under it may constitute a sort of moratorium or a blanket ban against the institution or continuance of any legal action subject to two important conditions. The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimant's fundamental rights specified in the Presidential Order have been contravened, and the second condition relates to the period during which this ban is to operate. The ban operates either for the period of the Proclamation or for such shorter period as may be specified in the Order.'

It is on these observations that the learned Counsel for the petitioners relied and, according to him, the first condition is clearly satisfied in the instant case inasmuch as the action in the instant case is one which seeks to obtain a relief on the ground that the claimant's fundamental rights specified in the Presidential Order had been contravened. It is vehemently urged that both the conditions laid down by the Supreme Court are satisfied in the instant case and during the time the Presidential Proclamation of 27th June 1975 remains, in force, the present proceedings must stand suspended.

17. The observations of the Supreme Court quoted earlier must, however, be read along with the other observations made later in the same judgment It may be remembered that in Makhan Singh's case : 1964CriLJ217 the constitutional validity of Section 3(2) (15) (i) and Section 40 of the Defence of India Act, 1962, and R, 30 (1) (b) of the Defence of India Rules was challenged before the Supreme Court on the ground that they contravened the fundamental rights of the petitioners under Arts. 14, 21, 22(4), (5) and (7) of the Constitution. Later in the decision, the Supreme Court dealt with the question as to what was the nature of the proceedings which were barred by the Presidential Order issued under Art, 359(1) and dealing with this question, it was observed as follows:--

'The next question to consider is, what is the nature of the proceedings which are barred by the Presidential Order issued under Article 359(1)? They are proceedings taken by citizens for the enforcement of such of the rights conferred by Part III as may be mentioned in the order. If a citizen moves any court to obtain a relief on the ground that his fundamental rights specified in the Order have been contravened, that proceeding is barred. In determining the question as to whether a particular proceeding falls within the mischief of the Presidential Order or not, what has to be examined is not so much the form which the proceeding has taken, or the words in which the relief is claimed, as the substance of the matter and consider whether before granting the relief claimed by the citizen, it would be necessary for the Court to enquire into the question whether any of his specified fundamental rights have been contravened. If any relief cannot be granted to the citizen without determining the question of the alleged infringement of the said specified fundamental rights, that is a proceeding which falls under Article 359(1) and would, therefore, be hit by the Presidential Order issued under the said Article. The sweep of Article 359(1) and the Presidential Order issued under it is thus wide enough to include all claims made by citizens in any court of competent jurisdiction when, it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is in substance, seeking to enforce any of the said specified fundamental rights.'

When it was contended before the Supreme Court that the proceeding under Section 491(1)(b), Criminal Procedure Code, would not fall within the sweep of the Presidential Order, the Supreme Court rejected the contention with these observations:

'In this connection, it is hardly necessary to emphasise that in deciding the present question, we must take into account the substance of the matter and not attach undue or exaggerated importance to the form of the proceedings. If the form which the proceedings take is held to be decisive in the matter, it would lead to this irrational position that an application containing the requisite averments in support of a plea for the release of the detenu would be thrown out by the High Court if in form it purports to be made under Article 226, whereas it would be entertained and may indeed succeed if it purports to be made under Section 491 (1) (b).... Thus the true legal position, in substance, is that the clause 'the right to move any court' used in Article 359(1) and the Presidential Order takes in all legal actions intended to be filed, or filed, in which the specified rights are sought to be enforced, and it covers all relevant categories of jurisdictions of competent courts under which the said actions would otherwise normally have been entertained and tried.'

The above quoted observations of the Supreme Court are, in our view, a complete answer to the contention raised on behalf of the petitioners that the moment the petition is merely framed as one to enforce the right under Article 14 of the Constitution, it must be deemed to be covered by the Presidential Proclamation and the proceedings must be stayed. As pointed out by the Supreme Court, it is the substance of the matter which must be ascertained and the ascertainment of the substance of the matter will necessarily involve some argument and some discussion. This would mean that the proceedings cannot be mechanically stayed or suspended because they merely refer to a violation of Article 14 of the Constitution. It is important to note that the observations of the Supreme Court indicate, that a proceeding will fall within the sweep of Article 359(1) when it is shown that the said claims cannot be effectively adjudicated upon without examining the question as to whether the citizen is in substance, seeking to enforce any of the said specified fundamental rights.' It appears to us that the use of the words cannot be effectively adjudicated upon' is of some significance. It appears to us that effective adjudication would mean that a decision in favour of the petitioner was necessary which would have the effect of enforcement of the fundamental right claimed by the petitioner. The word 'enforce' means, as per the Random House Dictionary, amongst other things' 'compel obedience to'. Thus the word 'enforcement' used in Article 359(1) or in Article 226 of the Constitution, contemplates an order or a proceeding which compels obedience in accordance with the constitutional imperative in Article 14 so far as that Article is concerned. The effect of the Presidential Proclamation under Article 359 is that the Court cannot compel the State to give effect to the mandate contained in Article 14. If that was the object of the Proclamation and the provisions of Article 359(1), we fail to see how that object would in any way be frustrated if in a given case, it is found on facts that the petitioner has not made out any case of violation of Article 14. The dismissal of a petition consequent on a finding that no breach or violation of the fundamental right under Article 14 has been proved will not amount to any breach of the terms of the Presidential Proclamation. On the other hand, if an enquiry is made to find out whether a breach has been established and the Court stays its hands in a case where the petitioner has been able to establish its breach and further to deal with the proceedings, it will then amount to suspension of the proceedings in compliance with the Presidential Proclamation. The meaning of the word 'suspend' as given in the Random House Dictionary is 'to hold or keep undetermined; refrain from forming or concluding definitely'. The state of the proceeding when the Court refuses to go ahead and issue a mandamus or a direction enforcing the fundamental right under Article 14 even after it is found that the petitioner has made out a case in his favour for enforcement of that right will still be a state of suspension inasmuch as the proceedings have not concluded definitely. We are, therefore, unable to accept the contention of the learned Counsel for the petitioners as also of Mr. Bane that merely because averments alleging a breach of Article 14 of the Constitution are made in the petition, we must adjourn the proceedings sine die and allow the proceedings to pend indefinitely without even ascertaining as to whether the petitioner is able to make out a case of the violation of the provisions of Article 14 of the Constitu-tion.

18. We may in passing refer to a decision of Deshmukh J. dated 25-2-1970 relied upon by the learned Advocate General in Misc. Peta, No. 344 of 1974 (Bom), Bharat Barrel and Drum Mfg. Co. Pvt. Ltd. v. The State of Maharashtra, in which a contention identical to the one which is advanced before us was rejected by the learned Judge. A notification of acquisition was challenged in that case on the ground of violation of Article 14 of the Constitution and it was contended that the proceedings could not be proceeded with in view of the Presidential Proclamation of 27th June 1975 and of January 8, 1976 suspending the right to approach a court for enforcement of fundamental rights under the Constitution. The notification related to acquisition for a public purpose and an interim order was issued after the petition was admitted and the consequence was that if the petition was not heard during the pendency of the Emergency, the acquisition would be postponed. The learned Judge having heard the parties at considerable length came to the conclusion that the petitioners' alleged challenge under Art, 14 of the Constitution was no challenge at all, but that the application was a frivolous one merely to prolong the acquisition by the State for the purpose of the Municipal Corporation. On merits the learned Judge took the view that the petitioners in that case had no valid right at all to oppose the acquisition and an attempt to resort to provisions of Article 14 of the Constitution was a mere pretext to somehow gain time and put off the evil day of acquisition.

19. The learned Counsel for the petitioners has placed reliance on the decision of the Calcutta High Court in Jagdish v. Union of India, : AIR1976Cal17 . That was a case in which the petitioner had challenged notice under Section 269(1) of the Income-tax Act, 1961, and in the petition the provisions of Section 269-C to Section 269-I and Section 269-R were challenged as ultra vires of Article 19(1)(f), Article 14 and Article 31 of the Constitution. An injunction was granted and it was contended before the learned Judge that in view of the Presidential Proclamation, the proceeding should be suspended and in the premises, the interim order must necessarily continue, The learned Judge dealing with this contention observed:

'The position seems to be rather unfortunate because in this case there was an interim order and the effect would be that the interim order would continue so long as the emergency continues or until the proclamation is revoked, though the examination of the question which was possible because the matter is ready for hearing, might have revealed that the proceedings under the notice were valid. In numerous cases (sic) under Article 14 are involved and while new applications or cases where Article 14 is resorted to are no longer possible during the continuance of the emergency, the persons who have obtained Rules or orders of injunction, prior to the 27th of June, 1975 would continue to enjoy those injunctions without the Courts having the opportunity to examine the validity or the propriety of the said orders simply because the questions under Article 14 are involved in those applications.'

The learned Judge, therefore, adjourned the hearing of the petition sine die. There is no doubt that this decision wholly supports the contention raised On behalf of the learned Counsel for the petitioners, but having regard to tbe discussion made earlier, we are unable to agree with the view taken by the learned Judge of the Calcutta High Court.

20. We have, therefore, heard Mr. Jahagirdar on the merits and the only contention raised is that the Government Resolution is bad because it treats differently situated persons in the same manner. As already pointed out, the argument is that while laying down the extent of lands to be acquired from each Khatedar, no account is taken of the number of members of the Khatedar's family and that is why the impugned Government Resolution amounts to infraction of the guarantee of equality under Article 14 of the Constitution.

21. Now, it is difficult for us to even entertain such a challenge to the Government Resolution. It cannot be disputed that the petitioner No. 1's lands are not being acquired by the Government resolution. The acquisition of the petitioner No. 1's lands is made under the provisions of the Land Acquisition Act, Those provisions are not challenged. Neither, it must be said in fairness to the petitioner's counsel, was it urged that acquisition of land under the provisions of the Land Acquisition Act was in any way infirm or defective. The acquisition of petitioner No. 1's land is not directly the result of the impugned Government Resolution. The impugned Government Resolution merely provides for certain guidelines. It cannot be disputed that the petitioner No. 1 could not have posed any challenge successfully to a notification under the Land Acquisition Act even if his entire holding was validly acquired as a result of a notification under Section 6 of the Land Acquisition Act. Such an acquisition of the entire holding was clearly permissible under law. His grievance appears to be that while his entire land could have been taken validly under the provisions of the Land Acquisition Act, land to a lesser extent has been taken in consequence of a Government Resolution and this acquisition is bad because the extent of the land was so fixed that the size of the family of other Khatedars in the same slab has not been taken into account It is difficult for us to see how such a challenge could be entertained even prima facie. As the Resolution indicates, various modes have been set out therein in order to build up the pool of land necessary for the resettlement of project-affected persons, Government would use its own land; it would use the land which came as surplus land under the provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961; if possible, it would use Galper lands and if even then the requirements of land were not met, land would be acquired from private Khatedars. It is there that for the guidance of the Land Acquisition Officer, it has been laid down that he must see that at least an economic holding, which means about 8 acres, is left with the Khatedar. In other words, care was taken to see that another class of landless people is not created as a result of the Land Acquisition proceedings. Now, these were merely guidelines for determining as to how much of land should be taken from each Khatedar though, if necessary, the entire land of the Khatedar was liable to be acquired validly under the statutory provisions of the Land Acquisition Act.

22. Even otherwise it appears to us that tbe challenge to acquisition of land on the ground of violation of Article 14 of the Constitution is entirely misconceived. It is now well established that Article 14 does not prohibit classification, but the classification must be founded on an intelligible differentia and the differentia must have a rational relation with the object to be achieved. In other words, a reasonable classification is always permissible. The object of the resettlement scheme is to obtain land. A classification based on the total holding cannot be said to be arbitrary or unreasonable. The slab system which has been laid down in the Government Resolution is thus based on certain considerations, namely, that a person should not become landless and the minimum land which must remain with him after acquisition must be equal to an economic holding. The slab system varying from 10 acres to 30 acres is clearly based on the footing that where a Khatedar has more land, more land can also be acquired from him. Therefore, it cannot be said that the classification is arbitrary and there is no doubt that this classification has a rational relationship with the object to be achieved, namely, to build up a pool of land available without creating a new class of landless people. Not much need be said to point out that the kind of criterion which is suggested by the learned Counsel for the petitioners is almost an impossibility. To determine as to how much land should be acquired on the basis of the number of members in the family would be an almost impossible task and Article 14 does not contemplate any mini classification. There can be no rigid formula of a reasonable classification and whether a classification is reasonable or not will have to be decided on the facts of each case. As long as a classification includes all persons and things similarly situated, the classification could be held to be valid and reasonable. The classes of Khatedars referred to in the impugned Government Resolution are determined on the basis of their total holding. The content of the words 'similarly situated' was discussed by the Supreme Court in Mohammad Shujat Ali v. Union of India, : (1976)IILLJ115SC in paragraph 25 as follows:--

'But the question is: what does this ambiguous and crucial phrase 'similarly situated' mean? Where are we to look for the test of similarity of situation which determines the reasonableness of a classification? The inescapable answer is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons or things similarly situated with respect to the purpose of the law. There should be no discrimination between one person or thing and another, if as regards the subject-matter of the legislation their position is substantially the same. This is sometimes epigrammatically described by saying that what the constitutional code of equality and equal opportunity requires is that among equals, the law should be equal and that like should be treated alike. But the basic principle underlying the doctrine is that the legislature should have the right to classify and impose special burdens upon or grant special benefits to persons or things grouped together under the classification, so long as the classification is of persons or things similarly situated with respect to the purpose of the legislation, so that all persons or things similarly situated are treated alike by law.'

The Government Resolution deals with the question of the extent of land to be acquired from the Khatedars on the basis of the extent of the land held by the Khatedar and all Khatedars having a holding equal to the area contemplated by the slab system laid down in the said resolution are treated similarly, If this basis cannot be said to be in any way arbitrary, even if another basis was possible, that would be no ground for striking down the guidelines on the ground of infraction of Article 14 of die Constitution.

23. The learned Counsel for the petitioners heavily relied on the decision of the Supreme Court in State of Kerala v. Haji K. Kutty, : [1969]1SCR645 . That was a case in which the provisions of the Kerala Buildings Tax Act, 1961, were challenged because for determining the quantum of tax, the sole test made was the area of the floor of the building and it was found that the Act applied to the entire State of Kerala and whether the building was situated in a large industrial town or in an insignificant village, the rate of tax was determined by the floor area; it did not depend upon the purpose for which the building was used, the nature of the structure, the town and locality in which the building is situate, the economic rent which may be obtained from the building, the cost of the building and other related circumstances which may appropriately be taken into consideration in any rational system of taxation of building. Striking down the provisions of that Act, the Supreme Court observed as follows:--

'But in enacting the Kerala Buildings Tax Act no attempt at any rational classification is made by the legislature. As already observed, the Legislature has not taken into consideration in imposing tax the class to which a building belongs, the nature of construction, the purpose for which it is used, its situation, its capacity for profitable, user and other relevant circumstances which have a bearing on matters of taxation, They have adopted merely the floor area of the building as the basis of tax irrespective of all other considerations. Where objects, persons or transactions essentially dissimilar are treated by the imposition of a uniform tax, discrimination may result, for, in our view, refusal to make a rational classification may itself in some cases operate as denial of equality.'

Now, those observations were particularly made in the context of imposition of a uniform tax only on the basis of floor area irrespective of all other considerations and where no attempt was made to make any rational classification. The failure to make any rational classification was itself held to amount to a denial of equality. In the instant case distinct and clear guidelines in the matter of extent of land to be acquired have been laid down with reference to the total holding of the Khatedars. The observations of the Supreme Court relied upon cannot, therefore, be of any assistance to the petitioners.

24. We have already pointed out that a classification on the basis of total holding cannot be said to be an arbitrary classification, The mere fact that holders of the same extent of the land may have a larger or smaller number of members in their families cannot enable the petitioners to challenge the decision to acquire land on the ground that differently situated persons have been similarly treated because it was perfectly permissible to make a classification on the basis of the total holding of the Khatedars. Therefore, even assuming that it was permissible to consider the challenge to the guidelines contained in the Government Resolution, we find that there is a clear and a distinct basis for the classification and there was no question of any violation of the provisions of Article 14 of the Constitution.

25. In the view which we have taken, we are unable to hold in favour of the petitioner No. 1 that the proceedings for acquisition of his land were in any way infirm on the ground of violation of the provisions of Article 14 of the Constitution. This cannot, therefore, be treated as a case in which an effective determination in favour of the petitioner No. 1 of the challenge on the ground of alleged violation of Article 14 becomes necessary.

26. In this view of the matter, we must reject the petition. Rule discharged. However, there will be no order as to costs of the petition.

27. Petition dismissed.


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