Skip to content


Gone Rajasimha Rao and ors. Vs. the State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 347, 357, 358 and 1200 of 1971
Judge
Reported inAIR1973AP236
ActsTenancy Law; Andhra Pradesh Mahals (Abolition and Conversion into Ryotwari) Regulation, 1969 - Sections 1, 2 and 5; Constitution of India - Articles 15(4), 19(1) and 244(1); Evidence Act, 1872 - Sections 115
AppellantGone Rajasimha Rao and ors.
RespondentThe State of Andhra Pradesh and ors.
Appellant AdvocateA. Rangacharyulu, ;P. Babulu Reddy, ;T. Ramakrishna Rao, ;T. Dhanurbhanudu, ;G.V.R. Mohanarao and ;E. Subba Rao, Advs.
Respondent AdvocateGovt. Pleader and ;M.R.K. Chowdary, Adv.
Excerpt:
constitution - validity - sections 1, 2 and 5 of andhra pradesh mahals (abolition and conversion into ryotwari) regulation, 1969, tenancy law, section 115 of indian evidence act, 1872 and articles 15 (4), 19 (1) and 244 (1) of constitution of india - validity of regulation of 1969 questioned on ground of absence of specific power of governor to abolish 'mahals' - under scheme of article 244 and fifth schedule of constitution power of governor to make regulation is very wide - regulation in furtherance of object sought under fifth schedule - no specific mandate is required - held, regulation valid. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language.....vaidya, j.1. writ petition no. 347/71 is filed by five petitioners three being the properties of albaka and cherla estates and petitioners 4 and 5 being the properties of sarangapani and dandupeta free-hold villages. these petitioners challenge the validity of andhra pradesh mahals ( abolition and conversion into ryotwari ) regulation, 1969, ( hereinafter referred to as the mahals regulation ). the petitioners in writ petition no. 357/71 are the muttadars of certain muttas in yellavaram taluk of east godavari district. the 24 petitioners in writ petition no. 358 of 1971 are also muttadars of different villages in ramapachodavaram taluk east godavari district, whereas the petitioner in writ petition no. 1200 of 1971 is a muttadar of six villages in yellavaram taluk of east godavari.....
Judgment:

Vaidya, J.

1. Writ Petition No. 347/71 is filed by five petitioners three being the properties of Albaka and Cherla estates and petitioners 4 and 5 being the properties of Sarangapani and Dandupeta free-hold villages. These petitioners challenge the validity of Andhra Pradesh Mahals ( Abolition and Conversion into Ryotwari ) Regulation, 1969, ( hereinafter referred to as the Mahals Regulation ). The petitioners in writ petition No. 357/71 are the Muttadars of certain Muttas in Yellavaram taluk of East Godavari District. The 24 petitioners in Writ Petition No. 358 of 1971 are also Muttadars of different villages in Ramapachodavaram taluk East Godavari District, whereas the petitioner in writ petition No. 1200 of 1971 is a muttadar of six villages in Yellavaram taluk of East Godavari District. The Muttadars aforementioned have challenged the validity of the Andhra Pradesh Muttas ( Abolition and Conversion into Ryotwari ) Regulation of 1969 ( hereinafter referred to as the Muttas Regulation. )

2. Both the aforesaid regulations have been made by the Governor of Andhra Pradesh with the assent of the President in exercise of the powers conferred upon him by sub-paragraph 2 of the paragraph 5 of the 5th Schedule to the Constitution of India. The writ petitioners in al the writ petitions have challenged the authority of the Governor in passing the aforesaid two regulations. We will first consider the question so far as the validity of the two regulations, relating to the powers of the Governor, together. Some other questions have been raised in the individual writ petitions to which we will advert at the proper stage.

3. Detailed arguments, as to the validity of the Muttas regulation, which would also apply to the Mahals Regulation, were advanced by Sri Dhanurbhandu learned counsel for the petitioners in writ petition No. 357 of 1971. His main contention is that there is no specific power given to the Governor either for abolition of the Muttas or Mahals. Unless a specific power is given the Governor is not competent to enact the aforesaid regulations. His contention is that under Article 244 of the Constitution, the provisions of 5th Schedule, under which the two regulations have been made, apply to the administration and control of the scheduled areas and scheduled tribes and does not give any power to the Governor to pass regulations of the nature, as they are outside the ambit of the expression ' administration and control ' of the scheduled areas and scheduled tribes used in Article 244 of the Constitution. He further contends that under sub-paragraph 2 of paragraph 5 of the fifth schedule of the Constitution, under which the regulations have been made, the power of the Government to make regulations for the peace and good Government of any areas in the State, which is for the time being schedule area is limited to clauses a, b and c of sub-paragraph 2. In other words his contention is that though the first part of sub-paragraph 2 is wide in its terms, it is controlled by second para of sub-paragraph 2, in which clauses a, b and c occur.

4. In order to appreciate the contentions of the learned counsel it is necessary to read the provisions of Article 244(1) and also the relevant provisions of 5th Schedule of the Constitution.

'Art. 244 (1) : The provisions of the fifth Schedule shall apply to the administration and control of the scheduled areas and scheduled tribes in any State other than the State of Assam. '

5. The fifth schedule consists of four parts. Part B deals with the administration and control of the scheduled areas and scheduled tribes. Paragraph 4 provides for the arrangement of a Tribal Advisory council and the duties of such council. Paragraph 5 which provides for making of laws or applying of laws to the scheduled areas, reads :

'5. Law applicable to scheduled areas :

(1). Notwithstanding anything in this Constitution the Governor may be public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under sub-paragraph may be given so as to have retrospective effect.

(2). The Governor may make regulations for the peace and good Government of any area in a State which is for the time being a scheduled Area.

In particular and without prejudice in the generality of the foregoing power such regulations may :

(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area ;

(b) regulate the allotment of land to members of the scheduled tribes in such area ;

(c) regulate the carrying on of business as moneylender by persons who lend money to members of the scheduled tribes in such area.

(3). In making any such regulations is referred to in sub-paragraph (2) of this paragraph, the Governor may repeal, or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question.

(4). All regulations made under this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect.

(5). No regulation shall be made under this paragraph unless the Governor making the regulation has, in the case where there is a Tribes Advisory Council for the State consulted such council. '

6. By virtue of paragraph 1 , the Governor is empowered to direct, by a public notification, that any particular Act of Parliament or Legislature of a State shall not apply to scheduled area, or shall apply to a scheduled area subject to such exceptions and modifications as he may specify in the notification. The directions given in the said sub-paragraph may be given so as to have retrospective effect. ' Under sub-paragraph 2, the Governor is empowered to make regulations for peace and good Government of any area in the State, which is for the time being a scheduled area. The second para of this sub-paragraph makes a provision for making regulations in regard to certain subjects referred to in clauses a, b and c, thereof, without prejudice to the generality of the power given under the first part to make regulations for the peace and good Government of the State. Under sub-paragraph 3, while making the regulations in sub-paragraph 2, the Governor is empowered to repeal or amend any Act of the Parliament or of the Legislature of the State for any existing law which is for the time being applicable to the area in question. A reading of the first three sub-paras of the 5th paragraph of the fifth schedule clearly shows that the power vested in the Governor to make regulations is very wide, not only for the application of Acts of Parliament or of the Legislature of a State, but further empowers him to repeal or amend any Act of a Parliament or of the Legislature of a State or any existing law or make regulations, under sub-paragraph 2 of the said paragraph. There are two limitations put on the power granted to the Governor, one in sub-paragraph 4, and the other in the sub-paragraph 5. Under sub-paragraph 4 of the regulation made by the Governor has to be submitted by him forthwith to the President for his assent, and until assented to by him the regulation will not have any effect. Further before making a regulation the Governor has to consult the Tribal Advisory Council, in the case where there is such a council, under paragraph 5. The assent of the President to the two regulations, were obtained on the 9th day of September, 1969 and the Andhra Pradesh Tribal Advisory council was also consulted by the Governor before making the two regulations now questioned before us.

7. The first argument advanced before us, by the learned counsel for the petitioners is that there should be a specific grant of power providing for abolition of the Mahals and Muttas. Our attention has been drawn to the provisions of Section 92(2) of the Government of India Act, 1935 wherein the Governor was empowered to make regulations for the peace and good Government for scheduled areas. But in List 2 of the 7th Schedule which deals with the subjects on which provincial legislature was empowered to make laws, there was a specific entry, I. E., entry No. 9, which provided for compulsory acquisition of land. Similarly in the Constitution, prior to its amendment by the Constitution 7th Amendment Act, there was entries Nos. 33 and 36 in lists 1 and 2 of the 7th Schedule to the Constitution. These entries relate to the acquisition and requisitioning of property. These two entries have now been omitted. What we have now is only Entry 42 in List 3 of the 7th Schedule, which is a concurrent list, provided for acquisition and requisitioning of property. It is argued that the aforesaid provisions of the Government of India Act, 1935 and the Constitution show that as regards compulsory acquisition and requisitioning of property, specific powers have been given to the Parliament and the Legislature of the State. There is nothing in the Constitution to show that such specific powers have been given to the Governor to make regulations for acquisition and requisitioning of property, under which could come the abolition of Mahals and Muttas regulations. As such specific power is not given, the Constitution makers never intended that the Governor while enacting regulations under sub-para 2 of para 5 to the fifth schedule, should provide for abolition of any property, in which Mahals and Muttas are included. We do not find any force in this contention. The Constitution makers though had provided for specific entries like Entries Nos. 33 and 36 or Entry 42. Lists 1, 2 and 3 of the 7th schedule , have also granted the Government power to make regulations in very wide terms, i. e., for the peace and good Government of any scheduled area in the State. The very fact that the Constitution makers have used a wide expression as peace and good Government clearly indicates that the Constitution makers did not to lay down subjects on which the Governor could make regulations. It is intended to be left entirely to the discretion of the Governor to determine whether a particular regulation would be for the peace and good Government of a scheduled area. The only limitations the Constitution makers wanted to out on the power of the Governor is that the Governor should consult the Tribes Advisory Council if there is any such council and to obtain the assent of the President before giving effect to the regulations made by him. From the provisions of paragraph 5 of sub-para 2, it is very difficult ( to agree ) to the contention of learned counsel for the petitioners that there should have been a specific power granted to the Governor to make regulations of the kind before us.

8. The contention raised by the learned counsel for the petitioners is concluded by a decision of the Supreme Court in T. M. Kanniyan v. I. T. Officer, : [1968]68ITR244(SC) , Their lordships of the Supreme Court were considering the provisions of Taxation Laws ( Extension to Union Territories ) Regulation ( 3 of 1963 ), made by the President under Article 240 of the Constitution of India, empowers the President to make regulations for the peace, progress and good Government of the Union Territory, mentioned in clause (1) of the said Article. An argument was advanced that under Article 240, the President can make regulations, limited to the subject of Law and Order. While considering the question their Lordships observed at p. 640 :

'The grant of legislative power to make laws regulations or ordinances for British dependencies has long been expressed in the common form of that of making laws, regulations or ordinances for ' peace and good Government. ' ' peace, welfare and good Government ' and ' peace, progress and good Government. ' of the territory. Instances of this common form of grant of legislative power to legislatures and authorities in India are Section 42 of the Indian Councils Act, 1861. Sections 71, 72, 80-A of the Government of India Act, 1915. Section 72 of the ninth Schedule and Section 92(2) of the Government of India Act, 1955. Such a power was held to authorise the utmost discretion of enactment for the attainment of peace, order and good Government of the territory and a Court will not enquire whether any particular enactment made in the exercise of this power, in fact promotes those objects '. ( Riel v. Queen ( 1885 ) 10 AC 675 at pp. 678 & 679. Chenard and Co. V. Jachim Arissol, ( 1949 AC 127 at p. 132 ). The words ' peace, order and good Government ' and similar expressions are words of very wide import giving wide discretion to the authority empowered to pass laws for such purposes.......................

Article 240 of the Constitution confers on the President a general power of making regulations for the peace, progress and good Government of the specified Union Territories. In exercise of this power, the President may make a regulation repealing or amending any Act made by the Parliament or any existing law which is for the time being applicable to the Union Territory. The President can thus make regulations on all subjects on which Parliament can make laws for the territory. '

9. While dealing with the arrangement that the President cannot make a law with respect to Income-tax in the absence of express grant of such power, their Lordships observed at page 642 :

'There is distribution of legislative power between the Centre and the States and consequently distinct grants of taxing power are made in the legislative lists. With respect to Union territories, there is no distribution of legislative power. For the Union territories, Parliament has plenary powers to make laws and the President has general powers to make regulations. In the exercise of powers under Article 240, the President could make Regulation No. 3 of 1963, extending the Income-tax Act, 1961 and other laws to the Union Territories. '

10. The provisions of sub-para 2 of Para 5 of the fifth Schedule are in pari materia with the Article 240 of the Constitution. Article 240 empowers the President to make regulations for peace, progress and good Government. Where as sub-para 2 of Paragraph 5 of fifth Schedule empowers the Governor to make regulations for peace and good Government, of a scheduled area. The first passage extracted by us clearly shows that the expression peace and good Government and peace, progress and good Government practically have the same meaning and have reference to the scope and not to be merits of the legislation. The aforesaid expression gives very wide discretion to the authorities to pass laws and the Courts are not competent to enquire whether any particular enactment made in the exercise of powers would in fact promote those objects. The argument that in the absence of an express grant of a power no regulation can be made by the Governor has also been answered by their Lordships of the Supreme Court.

11. The learned Government Pleader drew our attention to another decision of the Supreme Court in Ram Kirpal v. State of Bihar, : 1970CriLJ875 . Their Lordships considered in the above case the validity of Bihar Regulation No. 1 of 1951 which enacted that the Imports and Exports ( Control ) Act, 1947 was applicable to Santhal Paraganas. While considering the question whether the said regulation was in excess of the Governor's powers their Lordships have made certain observations in regard to the power conferred on the Governor under 5th Sch. Of the Constitution. Before referring to the 5th Schedule of the Constitution their Lordships considered the provisions of Section 92 of the Government of India Act, 1935 empowering the Governor to make regulations for the peace, and good Government of a scheduled area. Their Lordships referred to the word of Lord Halsbury ' an utmost discretion of enactment for the attainment of the objects pointed to ' in Riel v. Queen, ( 1885 ) 10 AC 675 at p. 678. While dealing with the power of the Governor under fifth Schedule their Lordships observed in para 22 :

'The power to make regulations embraces the utmost power to make laws and to apply laws. '

12. Again in paragraph 23, their Lordships said :

'The Governor had full power to make regulations which are laws and just as Parliament can enact that a piece of Legislation will apply to a particular State, similarly, the Governor under paragraph 5 of the fifth Schedule can apply specified laws to a scheduled area. The Bihar Regulation I of 1951 in an instance of a valid piece of legislation emanating from the legislative authority in the plenitude of power and there is no aspect of delegated or conditional legislation. '

The aforesaid decision also lays stress that the power to make regulations embrances the utmost power to make laws and to apply laws.

13. The expression peace and good Government came for interpretation before the Hon'ble the Chief Justice and Kuppuswami, J. In their judgment rendered in Writ Petition No. 776 of 1970 and batch on 24-9-1971. After referring to the decision of the Supreme Court in : 1970CriLJ875 and also some other decisions the Bench held that the expression for the peace and good Government has reference to the ' Scope and not to the merits of the Legislation ' and that the Governor has power to make regulations for the peace and good Government of the Scheduled area exercising the wide discretion in the matter subject only to the provisions of the Constitution.

14. The aforesaid observations were made in the context of Regulation I of 1970 and Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 which are also applicable to the case before us. The result therefore, is that the expression peace and good Government refers to the scope of legislation and the Court is not competent to go into the effect of the legislation.

15. It was then sought to be argued by the learned counsel that the decision of the Supreme Court and of this Court referred to above, refer to the earlier Privy Council decision, which was given on the interpretation of Section 92(2) of the Government of India Act, 1935. The said provision empowers the Governor to make regulations for the peace and good Government, without specifying any particular subjects on which such regulations can be made. In sub-paragraph 2, after giving general power to the Governor to make regulations for the peace and good Government for any scheduled area, the Constitution goes on to particularise the subjects on which such regulations can be made and those subjects are mentioned in clauses, a, b and c of the said paragraph. The argument is that when subjects have been particularised the general power granting power to the Governor to make regulations is limited by the subjects particularised. The Governor is empowered to make regulations only of the regulations are in relation to the subjects mentioned in clauses a, b and c. He therefore contended that the decision of the Privy Council are not applicable. He also relied upon a decision of the Privy Council in Attorney General for Canada v. Attorney General for Alberta, ( 1916 ) 1 AC 588 ( PC )and drew our attention to the passage occurring at page 595. That passage reads :

'It must be taken to be now settled that the general authority to make laws for the peace, order and good Government of Canada, which the initial part of Section 91 of the British North America Act confers, does not, unless the subject-matter of legislation falls within some one of the enumerated heads which follow enable the Dominion Parliament to trench on the subject-matters entrusted to the provincial Legislatures by the enumeration in Section 92. '

16. The learned counsel on the basis of the aforesaid passage argued that though the general authority has been given to make laws for the peace and good Government, such authority does not enable the Governor to make laws, unless those laws fall into clauses, a, b and c of sub-paragraph 2 of the paragraph 5 of the fifth Schedule.

17. The aforesaid observations have been made n answer to the question whether the Dominion Parliament , while making laws under general authority vested in it, to make laws for the peace, order and good Government of Canada, can trench on the subject-matters entrusted to the Provincial legislatures. The aforesaid passage does not lay down a principle that if the general power is followed by particularisation of the subjects regarding which power can be exercised the general power is limited to the subjects specified.

18. It is now well settled that when general provisions are followed by certain particular provisions and when it is stated that that particular provisions are without prejudice to the general provisions the particular provisions do not cut down the generality of the meaning of the preceding general provisions. The Supreme Court in S. K. Singh v. V. V. Giri, : [1971]2SCR197 has considered the provisions of Section 171-C of the Indian Penal Code which by its sub-section (1), provides general power of punishment to a person, who attempts to interfere with the free exercise of any electoral right or commits the offence of undue influence at an election. Sub-section (2) makes some particular provisions without prejudice to the generality of the provisions contained in sub-section (1). The Supreme Court observes :

'The first sub-section contains the definition of ' undue influence '. This is wide terms and renders a person voluntarily interfering or attempting to interfere with the free exercise of any electoral right guilty of committing undue influence. That this is very wide is indicated by the opening sentence of sub-section (2). I.e., without prejudice to the generality of the provisions of sub-section (1). It is well settled that when this expression is used anything contained in the provisions following this expression is not intended to cut down the generality of the meaning of the preceding provision. '

19. The same view has been taken in Writ Petition No. 776 of 1970 batch, already referred to by us and it has been held that the power to make regulations for the peace and good Government of any scheduled areas is not confined to the subjects stated in clauses a, b and c of sub-paragraph 2 of the paragraph 5 of the fifth Schedule and is only illustrative and not exhaustive. We do not think it is necessary to multiply the authorities on the point.

20. It is also difficult to comprehend how a piece of legislation which does away with the intermediaries and grants rights of Ryotwari patta on the persons in actual occupation of the lands is not for peace and good Government. We are, therefore of the opinion that the two regulations are within the competence of the regulation making power of the Governor and have been validly made.

21. At this stage we will consider the arguments advanced on behalf of the learned counsel for the petitioners that the sanads granted to them specifically stated that they can be deprived of the property only in case of violation of the terms and conditions of the Sanads. As it is not the case of the Government that ( they ) have violated, their properties cannot be taken away. This argument would have had force if we were to come to the conclusion that the two regulations are void, being outside the competence of the power of the Governor to make regulations. It cannot be disputed that the rights granted by the sanads can be taken away by valid legislation. If the legislation taking away such rights is a valid one, the challenge made on the aforesaid ground cannot survive. It is also sought to be argued by the learned counsel in Writ Petitions Nos. 358 and 347 of 1971 that the Government having granted them certain rights is now estopped from making laws abolishing those rights. This argument has to be rejected as there is no question of estoppel in the exercise of legislative power.

22. The learned counsel for the petitioners also challenged the validity of Section 5 of the Muttas regulation on the ground that it offends Article 14 of the Constitution.

23. Section 5 of the Muttas Regulation reads :--

'Every ryot in a mutta shall with effect on and from the notified date be entitled to a ryotwari patta in respect of all agricultural lands held by him such lands having been in his lawful possession for a continuous period of not less than one year immediately before the notified date and have been properly included in his holding or ought to have been properly included in his holding which are not lands in respect of which any other person is entitled to a ryotwari patta under this regulation :

Provided that no ryot who is not a member of the scheduled tribe shall be entitled to a ryotwari patta in respect of any agricultural land unless :

(a) such ryot has been in lawful possession or occupation of the land for a continuous period of not less than eight years, immediately before the notified date ; and

(b) such possession or occupation was not void or illegal under the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 or any other law for the time being in force. '

24. It is argued that under this section if a ryot belongs to a scheduled tribe, one year of possession is sufficient to enable him to get a ryotwari patta, whereas in the case of ryots who are not members of a scheduled tribe, the period of possession necessary for a grant of ryotwari patta is eight years. It is argued that this invidious distinction made between the ryots belonging to the same region has absolutely no nexus with the object of the Act. In our opinion the Muttadars are not entitled to challenge the validity of Section 5 of the Muttas Regulation. Section 5 gives a right to the ryots in Muttas and the rights of the Muttadars to get a ryotwary patta are governed by Section 6 of the Mittas Regulation. According to the provisions of Section 3, on the notified date all rights and interests of Muttadar in the mutta stand transferred to and vested in the Government free from all encumbrances, whereas sub-section (d) of Section 3, states that the Muttadar whose rights and interests stand transferred to and vested in, the Government under Cl. (a) of any other person whose rights and interests cease and determine under clause (b) shall be entitled to compensation from the Government as provided in the regulation. Section 6 of the regulation provides for grant of ryotwari patta to the Muttadar and Sec. 18 makes provision for compensation payable to the Muttadar. From the aforesaid provisions it is clear that by virtue of Muttas regulation the Muttadars are entitled to either compensation and or to ryotwary pattas. They are not at all concerned or in any way interested in the ryots who can claim ryotwary pattas under Section 5. By virtue of Sec. 5, the rights of the Muttadars are not in any way affected. A feeble argument was sought to be advanced before us that as the Muttadars have inducted ryots in possession, they are interested in challenging the validity of Section 5. We do not see any force in this contention. It is well settled that only those persons who are affected by a particular provision, can challenge the validity of such a provision. The Muttadars not being affected by the provisions of Section 5, are not entitled to challenge Section 5 of the Regulation.

25. The same argument holds good in regard to the challenge to the validity of Sec. 5 of the Mahals Regulation, by the proprietors of the Mahals. Under the Mahals regulation the proprietors of the Mahals are entitled to compensation and/or ryotwary patta in certain cases. They cannot also challenge the validity of Section 5 of the Mahals Regulation.

26. Assuming that the petitioners can raise the question about the validity of Section 5 of the Muttas Regulation, it is for them to show how the ryots belonging to the scheduled tribes and the ryots , who do not belong to those tribes, are similarly placed. The question of invidious discrimination under Article 14 of the Constitution arises only if persons similarly placed are discriminated against. No facts have been stated in the writ petitions to show that the two classes of ryots are similarly place. On the face of it the classification between the ryots is on the basis of those who belong to the scheduled tribes and those who do not belong to the scheduled tribes. This classification is a very reasonable classification. It cannot also be said that the classification has no nexus with the object, the Act seeks to achieve. From a reading of the provisions of the Act it is clear that it is intended to benefit the scheduled tribes by giving them ryotwari pattas. Such a law is saved by the provisions of Article 15(4) of the Constitution and there can therefore be no challenge under Article 14.

27. The same observations hold good in considering the provisions of Section 5 of the Mahals Regulations, whereunder a distinction has been made between the tenants belonging to scheduled tribes and the tenants who do not belong to the scheduled tribes. We are of the opinion that both the regulations do not in any manner contravene Article 14 of the Constitution of India.

28. Having dealt with the general questions raised in all the petitions we will now proceed to consider some additional arguments advanced in Writ Petition No. 347 of 1971. We may at this stage that the learned counsel for the petitioners in Writ Petitions Nos. 358, 347 and 1200 of 1971 have adopted the arguments advanced by Sri Dhanurbhanudu. The learned counsel argued before us that the period of eight years prescribed in Section 7 of the Mahals Regulation for grant of ryotwari patta to the properties of Mahals is void as such a period has been fixed without any rhyme or reason.

29. Section 7 of the Mahals regulations reads :

'Every proprietor in a mahal shall, with effect on and from the notified date, be entitled to a ryotwari patta in respect of home-farms, which have been under direct cultivation by himself or by his own or hired servants in the ordinary course, for a continued period of not less than eight years immediately before the notified date. '

30. This point has not been taken by the petitioner in his affidavit and therefore the Government could not bring out the reasons for fixing the period of eight years cultivation by the proprietor of a Mahal. We cannot, therefore, entertain this contention.

31. It is also argued that invidious discrimination has been made between the villages of Subbannapeta Dondupeta and Sarangapani and survey numbers. In order to understand this argument it is necessary to refer to the definition of a Mahal under Section 2 (d) of the Mahals Regulation :

'(d) Mahal means Nugur, Alabaka and Cherla Estates and includes the area comprised in each of the villages of Subbannapeta, Dondupeta and Sarangapani, but does not include a survey number ; '

32. The only allegation made in this connection is that the survey number and the three villages are similarly placed has not been brought out in the affidavit. Prior to the introduction of the Mahals Regulation the Central Provinces Land Revenue Act, 1887 was applicable to the area concerned.

33. In the Central Provinces Land Revenue Act the expression survey number has been defined in Section 4 to mean 'a local area held by or intended to be settled with a raiyat under a separate assessment of land revenue in a village or estate which is the property of the Government'. In the same Act the word Mahal was defined in Section 4 clause (7) meaning any local area held under a separate engagement for the payment of the land revenue direct to Government, and includes also any local area declared, under the provisions of this Act to be a mahal (but does not include a survey number clearly shows that it is a local area which a ryot under a separate assessment of land revenue in a village or estate.

34. According to the claim of the petitioners in writ petition No. 347 of 1971 they are persons to whose predecessors the villages were sold by the Secretary of State for India in council for a consideration. A copy of one of such sale deeds executed in favour of the predecessors in interest of the proprietors of the Sarangapani village has been produced before us. That sale deed clearly shows that the Sarangapani village will be held by the proprietors thereof free from all present or future demand on account of Government land revenue. The distinction between the three villages and the survey number is the villagers are exempted from payment of Government land revenue, whereas the survey numbers are held by ryots under an assessment of land revenue. Even if the definitions of survey number and Mahal as given in the Central Provinces Land Revenue Act are taken into consideration the distinction between the two is very obvious. In one there is an assessment of land revenue whereas in the other there is engagement for the payment of land revenue. Prima facie therefore it cannot be said that the three villages and survey numbers which have been exempted from the definition of Mahal are similarly placed. The question of discrimination therefore does not arise.

35 The learned counsel for the petitioner also argued before us that it is unreasonable to include the three villages Subbannapeta Dondupeta and Sarangapani in the definition of Mahal. His contention is that the three villages having been purchased by the proprietors thereof from the Government on payment of consideration they are the private property and there cannot be any deprivation of such private property. The law depriving such property does not impose reasonable restrictions on the exercise of any of the right conferred by Article 19(1)(f) of the Constitution either in the interests of the general public or for the protection of the interests of any scheduled tribes. It is now well settled that reasonable restrictions can amount to a complete deprivation also and such law will not contravene Article 19(1)(f) of the Constitution, if it is made in the interests of any scheduled tribe as provided for in clause 5 of Article 19 of the Constitution. The Government in paragraph 3 of their counter have stated that the tribals have been suffering from socio economic backwardness and also groaning under utter poverty and penury. In the interests of establishing good Government and preventing them from resorting to violent activities the Government though it fit to bring about legislation which will have the effect of restoring the tribals of the lands which they are really entitled to by removing the intermediaries who are holding those lands to the detriment of the Tribals. With that end in view the regulation now under question has been designed. The provisions of the regulation also show that it is intended to confer benefits on persons belonging to the scheduled tribes. It cannot therefore be said that the regulation is not for the protection and the interests of scheduled tribes. The regulation is clearly within the provisions of Article 19(5) of the Constitution and therefore there can be no challenge under Article 19(1)(f) of the Constitution.

36. It was also argued by a comparison of the definition of Mahal in the Mahals Regulation and the definition of Mahal in the Central provinces Land Revenue Act, that it is unreasonable to define Mahal in such a manner as to include the three villages. The validity of a provision of a statute can be challenged only on a ground that it is enacted by an authority incompetent to do so or contravenes any of the fundamental rights guaranteed under the constitution. The validity of a statute cannot be challenged on the ground that some provisions thereof are contrary or beyond the scope of an earlier statute, applicable to the area concerned. We have already found that the statute is within the competence of the Governor and we have also refuted the challenge to Section 2 (d) of the Mahals Regulation made under Article 19(1)(f) of the Constitution. We find no force in the contention advanced by the learned counsel for the petitioners.

37. It was also argued before us that no benefits have been conferred on the tribals as they are in a minority in the Area. We do not see any force in this contention. It is not the question as to whether the tribals are in minority or majority the question is whether the tribals are benefited by the Regulation.

38. Further we have already referred to a decision of the Supreme Court in : [1968]68ITR244(SC) wherein it has been held that a Court cannot go into the effect of an enactment made by the governor under the provisions vested in him under paragraph 5 of the fifth schedule of the Constitution.

39. Our attention was drawn to certain provisions of Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act (Act XXVI of 1948) and it is argued that there is no provision in the Mahals regulation corresponding to Section 55 of Act XXVI of 1948. It is therefore argued that failure to make such provision shows that care was not taken in safe guarding the rights of the landholders and therefore the regulations are harsh and arbitrary. We do not find any force in this contention. No case has been made out by the petitioners in support of their contentions. It is not stated as to how the provisions of the regulations operate harshly and arbitrarily on the petitioners. As no basis for such a contention has been laid out the contention cannot be considered.

40. Lastly it was argued that there are certain anomalies in the schedule of the Mahals Regulation fixing the principles of compensation. By referring to sub-clauses (1) and (20 of clause 3 of the schedule it was pointed out to us that where the next annual income of a proprietor is Rs.2,000/- he is entitled to get 30 times such amount by way of compensation i.e., Rs.60,000/- under Sub-clause (1) and in case his net annual income exceeds that amount even by a rupee he will be entitled to get only 25 times his net annual income. The example given was, if the net annual income of a proprietor is Rupees 2,001/- he will get Rs. 50,025/- under clause 2 whereas if his net annual income is Rs.2,000/- he gets Rs.60,000/- Such a difference between the compensations is not limited only to clauses (1) and (2) of clause 3 but can be seen by comparison of the other sub-clauses of clause No.3. It is not argued before us that the principles determining the compensation are hit by Article 31 of the Constitution. What is pointed out to us is only the anomaly which this court is not competent to rectify. Further the petitioners have not pointed out how they suffer from the provisions of the schedule. This contention therefore has no force.

41. Even though a number of contentions have been raised in the affidavits filed by the petitioners before us only those which have been referred to by us were argued before us.

42. In the result we do not find any force in the Writ Petitions and they are dismissed with costs. Government Pleader's fee Rs.100/- in each of the Write Petitions.

43. Petitions dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //