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Smt. Brij Rajkumari and anr. Vs. Raja Mohammad Mustafa Ali Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 456 of 1956
Judge
Reported inAIR1968All322
ActsTenancy Law; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951; Debt Law; Uttar Pradesh Zamindars Debt Reduction Act, 1953 - Sections 2; Constitution of India - Articles 13 and 14
AppellantSmt. Brij Rajkumari and anr.
RespondentRaja Mohammad Mustafa Ali Khan
Appellant AdvocateR.C. Sinha, ;Vishnu Singh and ;Lalji Sinha, Advs.
Respondent AdvocateAdv. General
DispositionAppeal allowed
Excerpt:
civil - intention of legislature- articles 13 and 14 of constitution of india - clause (f) of section 2 of the u.p. act, 1956 grants relief to the debtor - on the other hand exception of this clause deny relief - determination of validity of a provision of law under article 14 of the constitution of india - court is not concerned with mental process - real intention is to be discovered from the language and scheme of the act. - - section 5 lays down that 'for purposes of sections 3 and 4 every mortgagor or judgment-debtor entitled to the estate as stated therein shall b' treated as separate unit' with the modification contained in the proviso appended thereto section 6 provides for the passing of a decree by the court after the amount has been reduced under section 3. section 7 lays.....beg, c.j.1. this reference has been made in first appeal no. 456 of 1956, which was filed by the two appellants, namely, smt. brij raj kumari, widow of th. gajendra shah, and th. bikram shah, son of th. gajendra shah. the respondent in this appeal is raja mohamad mustafa ali khan. the suit out of which this appeal arises was filed by raja mohammad mustafa ali khan, as plaintiff against smt. brij raj kumari and th. bikram shah, as defendants nos. 1 and 2 on the basis of a mortgage deed dated the 29th january, 1946. on me date of the execution of the aforesaid deed the estate of the appellants was under the superintendence of the court of wards, shahjananpur, and the estate of the respondent was under the superintendence ' of the court of wards, gonda. accordingly, the mortgagor in the deed.....
Judgment:

Beg, C.J.

1. This reference has been made in First Appeal No. 456 of 1956, which was filed by the two appellants, namely, Smt. Brij Raj Kumari, widow of Th. Gajendra Shah, and Th. Bikram Shah, son of Th. Gajendra Shah. The respondent in this appeal is Raja Mohamad Mustafa Ali Khan. The suit out of which this appeal arises was filed by Raja Mohammad Mustafa Ali Khan, as plaintiff against Smt. Brij Raj Kumari and Th. Bikram Shah, as defendants Nos. 1 and 2 on the basis of a mortgage deed dated the 29th January, 1946. On me date of the execution of the aforesaid deed the estate of the appellants was under the superintendence of the Court of Wards, Shahjananpur, and the estate of the respondent was under the superintendence ' of the Court of Wards, Gonda. Accordingly, the mortgagor in the deed of mortgage was the Court of Wards, Shahjehanpur, charged with the superintendence of the estate or Smt. Brij Raj Kumari and Th. Bikram Shah, and the mortgagee in the deed was the Court of Wards, Gonda, charged with the superintendence of the estate of Raja Mohammad Mustafa Ali Khan, It is not necessary to specify the terms of the mortgage as they are not relevant for our purpose.

2. The present appeal arises out of the suit filed for the enforcement of the aforesaid mortgage by Raja Mohammad Mustafa All Khan against Smt. Brij Raj Kumari and Th. Bikram Shah on the 11th March 1955. The main pleas taken in this suit on behalf of the defendants were that they were entitled to the benefit of the U. P. Zamindars' Debt Reduction Act, and the provisions of Sub-clause (vi) of Clause (f) of Section 2 of the said Act are invalid, being in conflict with Article 14 of the Constitution. Issues Nos. 2 and 6 framed by the trial Court relate to these pleas. They run as follows:--

'2. Is the defendant entitled to the benefit of the U.P. Zamindars' Debt Reduction Act? If so, to what benefit?

6, Whether the provisions or' Sub-clause (vi) of Clause (f) of Section 2 of the U.P. Zamindars' Debt Reduction Act are invalid being in conflict with Article 14 of the Constitution? If so, its effect?'

On the above issues the trial Court held that Sub-clause (vi) of Clause (f) of Section 2 of the U.P. Zamindars' Debt Reduction Act vyas not in conflict with Article 14 of the Constitution, and that hence the defendants were not entitled to the benefits of the U.P. Zamindars' Debt Reduction Act. The trial Court, accordingly, by its judgment dated the 5th of March, 1966, decreed the plaintiffs suit for Rs. 60,000 with the usual provision for pendents lite and future Interest on the decretal amount at the rate of 4 per cent per annum. There was a further direction that the decretal amount was to be paid within six months; and, in default of payment within the aforesaid period, the realisationof the same was to be made by the sale of the Zamindari abolition compensation bonds of the defendants according to prescribed law in respect thereof. Dissatisfied with the said judgment and decree, the defendants have filed the present appeal.

3. This appeal was initially heard by a Division Bench consisting of Oak and Seth, JJ. The question regarding the invalidity of Sub-ciause (vi) of Clause (f) of Section 2 of the U.P. Zamindars' Debt Reduction Act was the main point argued before the said Bench. This question had previously come up tor consideration before a Division Bench of this Court in Nitric! Ram v. Kishori Reman Singh : AIR1962All521 . In that case it was held by the Division Bench that Clause (f) of Section 2 of the Act was not discriminatory. In view, however, of the decision of the Supreme Court in State of Rajasthan v. Mukan Chand : [1964]6SCR903 , the Bench was of opinion that the decision of this Court in Nand Ram's case : AIR1962All521 , needed reconsideration. It accordingly referred the case to a larger Bench. Thereafter, the case was fixed before a Bench of three Judges, namely, Oak, Gyanendra Kumar and Seth JJ. When the case was heard by them, the learned Advocate-General contended that if Sub-clause (vi) of Clause (f) of Section 2 of the U.P. Zamindars' Debt Reduction Act was foimd to be invalid, the effect of it would be to invalidate the entire Clause (f) which contained the definition of the term 'debt'. The learned Judges thought that the questions raised in the case were of sufficient importance to merit decision by a Full Bench of five Judges, and they passed an order to that effect. This case was, accordingly, listed for hearing before us.

4. The two questions arising in the case are:

1. Whether Sub-clause (vi) of Clause (f) of Section 2 of the U.P. Zamindars' Debt Reduction Act is invalid, being violative of Article 14 of the Constitution of India?

2. In case it is found to be invalid, whether the consequence of its invalidity is to make the entire Clause (f), which contains the definition of the term 'debt', void in law, so as to make the Act itself unenforceable?

5. In order to decide the two afore-men tioned questions it will be necessary to bear in mind the object and purpose of the piece of legislation in which the impugned provision of law is to be found. The object and purpose of a legislation can be ascertained from the origin, the past history, the title, the preamble and the sections of the Act The U.P. Zamindars' Debt Reduction Act is a corollary of the U.P. Zamindan Abolition and Land Reforms Act, 1950 (UP. Act No 1 of 1951), which was passed for the purpose of implementing the declared policy of the Government to acquire zamindari properties in order to abolish the intermediaries between the tiller of the soil and the State. On the 8th of August. 1946, the U.P. Assembly passed a resolution accepting in principle the abolition ot zamindari system inthe State. In consequence thereof a Committee was appointed known as the Zamindari Abolition Committee. This Committee prepared a scheme giving an outline of the land reform proposed to be effected. It submitted its report in October, 1948. On its basis a Bill for the abolition of zamindari was introduced in the Assembly on the 10th of June, 1949. It was referred to a Joint Select Committee. After considerable deliberations, the Select Committee gave a report which was published in the Uttar Pradesh Gazette (Extraordinary), dated the 29th of December, 1949, and was presented to the Legislature on the 9th of January, 1950. It was finally passed by the Assembly on the 10th January, 1951, and by the Council on the 16th of January, 1951. It received the assent of the President on the 24th of January, 1951, and was published in the Uttar Pradesh Gazette (Extraordinary) on the 26th of January, 1951. The notification under Section 4 of the Act for vesting of estates in Uttar Pradesh as a whole (with some exceptions) was published on the 1st of July, 1952. The object of the U.P. Zamindari Abolition and Land Reforms Act, as stated in its preamble, was 'to provide for the abolition of the zamindari system which involves intermediaries between the tiller of the soil and the State of Uttar Pradesh and for the acquisition of then-rights, title and interest, and to reform the law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith.' The Statement of Objects and Reasons of the U.P. Zamindari Abolition and Land Reforms Act published in the U.P. Gazette (Extraordinary), dated June 10, 1949, recited that the question of scaling down the debts of the intermediaries, whose rights were to be acquired, would be dealt with by a separate Bill. The U.P. Zamindars' Debt Reduction Act may be said to constitute a fulfilment of the said promise.

6. It would thus appear that the U.P. Zamindars' Debt Reduction Act was a consequence of the U.P. Zamindari Abolition and Land Reforms Act, The Statement of Objects and Reasons of the U.P. Zamindars' Debt Reduction Act itself refers to the fact that the Zamindari Abolition Committee had made recommendation as regards the scaling down of the intermediaries debts, and had further pointed out that the existing debt laws did not take into account the special problem of the reduced capacity of the landlord to pay his debts as a result of the abolition of zamindari. It then goes on to state that the Sub-Committee had further observed that it appeared sound and equitable that, after the abolition of the zamindari, the landlord's debts should be reduced in proportion to the reduction in the value of his land consequent upon the abolition of the zamindari, and that, in order to implement the recommendations of the said Committee in this regard, the Bill, which formed the basis of the U.P. Zamindars' Debt Reduction Act, 1950, was presented before the Legislature, The U.P. Zamindars' Debt Reduction Act (U.P. Act No. 15 of 1953) receivedthe assent of the President on the 21st of May, 1953, and the English translation of the Act was published in the U.P. Gazette (Extraordinary), dated the 25th of May, 1953.

The object of the Act as its preamble it self indicates, is 'to provide for scaling down debts of zamindars whose estates have been acquired under the provisions of the U.P. Zamindari Abolition and Land Reforms Act, 1950'. This Act contains eleven sections. Section 1 of the Act gives its short title and states that 'this Act may be called the Uttar Pradesh Zamindars' Debt Reduction Act, 1952'. The short title itself succinctly brings out the purpose of the Act as being the reduction of the debts of Uttar Pradesh zamindars. The definition of the term 'debt' is contained in Section 2 (f) of the Act. In conformity with its purpose it excludes debts incurred after July 1, 1952, from the benefit of the Act. It is noteworthy that July 1, 1952, was the date of vesting under Section 4 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. Section 3 of the Act invests' the Court with the power to reduce the debts at the time of passing the decree. Section 4 of the Act empowers the Court to reduce debts after passing the decree. Section 5 lays down that 'for purposes of Sections 3 and 4 every mortgagor or judgment-debtor entitled to the estate as stated therein shall b' treated as separate unit' with the modification contained in the proviso appended thereto Section 6 provides for the passing of a decree by the Court after the amount has been reduced under Section 3. Section 7 lays down that 'after the amount due has been reduced under and in accordance with the provisions of Section 4, the decree shall to the extent of the reduction so effected, be deemed for all purposes and on all occasions to have been duly satisfied'. Section 8 provides that notwithstanding anything contained in any agreement, document or law for the time being in force, a decree relating to a secured debt shall, in so far as the compensation for the mortgaged estate is concerned, be executed to the extent of three-fourth amount only against the compensation and rehabilitation grant payable to such mortgagor or debtor in respect of his estate. Section 9 lays down that the Court executing a decree other than a secured debt against the compensation or rehabilitation grant shall enter satisfaction in accordance with the formula given in Schedule II. Section 10 provides for the extension of the principles of reduction provided in the ct to cases of arrears of guzara or maintenance. Section 11, which is the last one, relates to the making of rules by the Government for purposes of carrying into effect the provisions of the Act. Schedule I provides the formula for the reduction of debts referred to in Sections 3 and 4 of the Act. The above discussion makes it quite clear that the sole purpose of the entire Act was to scale down the debts of the Uttar Pradesh zamindars, whose capacity to repay their debts was debilitated by the acquisition of their estates under the U.P. Zamindari Abolition and Land Reforms Act. The U.P. Zamindars' Debt Reduction Act is a remedial piece of legislation embodying a scheme for givingeffect to the object of the Act, namely, the reduction of the zamindars' debts.

7. If the above object and the scheme is borne in mind, then there sould be no difficulty in providing an answer to both the two aforementioned questions that have arisen for consideration in this reference. So far as the first question is concerned, it is not necessary to discuss it in detail, as the answer to it is provided by the judgment of the Supreme Court in AIR 1964 SC 1633. This was an appeal against the judgment oi the Rajasthan High Court in a case in which the validity of Section 2 (e) of the Rajasthan Jagirdars' Debt Reduction Act (Rajasthan Act No. 9 of 1957) had come up for consideration before it. Section 2 (e) of the Rajasthan Jagirdars' Debt Reduction Act is quoted in the judgment and reads as follows:--

'2 (e) 'Debt' means an advance in cash or kind and includes any transaction which is in substance a debt but does not include an advance as aforesaid made on or after the first day of January, 1949, or a debt due to-

(i) the Central Government or Government of any State;

(ii) a Local Authority;

(iii) a Scheduled Bank;

(iv) a Co-operative Society;

(v) a waqf, trust or endowment for a charitable or religious purpose only; or

(vi) a person, where the debt was advanced on his behalf by the Court of Wards.'

The definition of debt given in the Rajasthan Jagirdars' Debt Reduction Act follows closely the pattern of the definition of debt given in Section 2 (f) of the U.P. Zamindars' Debt Reduction Act, 1952, which runs as under:--

'2 (f) 'debt' means an advance in cash or in kind and includes any transaction which is in substance a debt but does not include an advance as aforesaid made on or after the first day of July, 1952 or a debt due to-

(i) the Central Government or Government of any State;

(ii) a local authority;

(iii) a scheduled bank;

(iv) a co-operative society;

(v) a waqf, trust or endowment for a charitable or religious purpose only; and

(vi) a person, where the debt was advanced on his behalf by the Court of Wards to a ward.'

The Rajasthan High Court had held that the exemptions contained in the definition of debt in Section 2 (e) of the Rajasthan Act, being discriminatory, were hit by Article 14 of the Constitution. The Supreme Court upheld the view taken by the Rajasthan High Court on this aspect of the case. The relevant passage in the judgment of the Supreme Court runs as follows:--

'We think that the High Court was right in holding that the impugned part of Section 2 (e) infringes Article 14 of the Constitution. It is now well settled that in order to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentiation which distinguishes persons or things that are to be put together from others leftout of the group, and (2) that the differentia must have a rational relationship to the object sought to be achieved by the statute in question. In our opinion, condition No. 2 above has clearly not been satisfied in this case. The object sought to be achieved by the impugned Act was to reduce the debts secured on jagir lands which had been resumed under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act. The jagirdar's capacity to pay debts had been reduced by the resumption of his lands and the object of the Act was to ameliorate his condition. The fact that the debts are owed to a Government or local authority or other bodies mentioned in the impugned part of Section 2 (e) has no rational relationship with the object sought to be achieved by the Act. Further, no intelligible principle underlies the exempted categories of debts. The reason why a debt advanced on behalf of a person by the Court of Wards is clubbed with a debt due to a State or a scheduled bank and why a debt due to a non-scheduled bank is not excluded from the purview of the Act is not discernible.'

The above reasoning would apply with full force to the provision of law impugned in the present case. Reliance before the Supreme Court was placed by the counsel for the appellant on the case of : AIR1962All521 , in support of his contention to the contrary. The Supreme Court did not approve of the line of reasoning adopted by the Allahabad High Court in Nand Ram s case. So far as this question, therefore, is concerned, it stands concluded by the decision of the Supreme Court in the aforesaid mentioned case. It must, therefore be held that Sub-clause (vi) of Clause (f) of Section 2 of the Act is void being violative of Article 14 of the Constitution of India.

8. In this situation the argument that was vehemently pressed before us by the learned Advocate-General was that assuming Sub-clause (vi) of Clause (f) of Section 2 to be void in law as being discriminatory, the necessary consequence of such a view would be to invalidate the entire definition of debt as contained in Clause (f) of Section 2 thereby making the Act itself unenforceable. We have heard the learned Advocate-General at length on this point, but we find it difficult to accept his contention in this regard. Where A portion of an Act is held to be invalid by a Court, it does not necessarily have the effect of invalidating the remaining portion or portions of the Act which may be otherwise valid. The answer to the question as to what its effect on the rest of the Act would be, depends on the answer to the further question as to whether the excluded portion is severable from the remaining portion. The principles governing the doctrine of severability involve multifarious considerations. These principles are enumerated in detail by the Supreme Court in the case of R. M, D. Chamarbaugwalla v. Union of India, : [1957]1SCR930 . In this case Sections 4 and 5 of the Prize Competitions Act (No. 42 of 1955) and Rules 11 and 12 made thereunder were impugned by the petitioners as unconstitutional The object of the Act, as stated in itspreamble and short title, was 'to provide for the control and regulation of prize competitions'. Section 2 (d) of the Act defined 'prize competitions' as meaning 'any competition (whether called a cross-words prize competition, a missing-word prize competition, a picture prize competition or by any other name), in which prizes are offered for the solution of any puzzle based upon the building up, arrangement, combination or permutation oi letters, words or figures'. Sections 4 and 5 of the said Act made the promotion or conduct of prize competitions penal except under restrictions and conditions prescribed therein. Rules 11 and 12 laid down requirements regarding the charge of entry fees and the maintenance of registers by persons holding such competitions. The Court, after discussing the origin and history of the legislation, and, bearing in mind its object as stated in the preamble and short title, came to the conclusion that the intention of the Legislature in enacting the Prize Competitions Act was to control and regulate only competitions of a gambling nature and not competitions depending to any substantial degree on skill. Hence, the definition of prize competition as given in Section 2 (d) of the Act should be construed as embracing transactions of the former nature only.

In the alternative, the Court held that assuming that the definition of the expression 'prize competition' in the Act is interpreted to include not only transactions of a gambling nature (that is, wagering transactions) out also transactions involving skill (that is, commercial transactions); the two kinds of transactions form separate and distinct categories. After the true character of a transaction is determined, it must fall under either the one or the other. After adverting to this aspect of the matter the Court made the following significant observations:--

'And if we are now to ask ourselves the question, would Parliament have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what our answer would be. Nor does the restriction of the imgugned provisions to competitions of a gam-ling character affect either the texture or the colour of the Act; nor do the provisions require to be touched and rewritten before they could be applied to them. They will squarely apply to them on their own terms and in their true spirit and form a code complete in themselves with reference to the subject. The conclusion is, therefore, inescapable that the impugned provisions, assuming that they apply by virtue of the definition in Section 2 (d) to all kind of competitions, are severable in their application to competitions in which success does not depend to any substantial extent on skill.'

The present case is obviously much stronger, In the case before the Supreme Court the definition clause itself did not expressly create separate categories of transactions so as to make one severable from the other. Severability was a conclusion which was drawn from the past history and object of the Act. iNother words, the doctrine of severability was applied by the Supreme Court in this case oa the ground that it was implicit in the definition, and followed from the purpose of the Act. In the present case, on the other hand, severability is explicit, as it is created expressly in the definition clause itself, in words which admit of no doubt. To put it in other words, in the present case severability is writ large on the lace of the relevant provisions of law. The difficulty that could have arisen in the case before the Supreme Court does not and cannot, therefore, arise in the present case. This aspect of the matter may be further clarified by a reference to the case of State of Bombay v. F. N. Balsara AIR 1951 SC 318. In this case separate categories were created explicitly as a result of the definition contained in the Act and the notification issued thereunder. Referring to Balsara's case the judgment of the Supreme Court in the case under discussion made the following significant observations:--

'In 1951 SCR 882 = AIR 1951 SC 318, i.e., Balsara's case, the question was as to the validity of the Bombay Prohibition Act. Sections 12 and 13 of the Act imposed restrictions on the possession, consumption and sale of liquor, which had been defined in Section 2 (24) of the Act as including '(a) spirits of wine, methylated spirits, wine, beer, toddy and all liquids consisting of or containing alcohol, and (b) any other intoxicating substance which the Provincial Government may, by notification in the official Gazette, declare to be liquor tor the purpose of this Act'. Certain medicinal and toilet preparations had been declared liquor by notification issued by the Government under Section 2 (24) (b). The Act was attacked in its entirety as violative of the rights protected by Article 19(1)(f); but this Court held that the impugned provisions were unreasonable and, therefore, void, in so far as medicinal and toilet preparations were concerned but valid as to the rest. Then, the contention was raised that 'as the law purports to authorise the imposition of a restriction on a Fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionality permissible legislative action affecting such a right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. In rejecting this contention, the Court observed at pp. 717-718 (of SCR) = (af p. 328 of AIR): 'These items being thus treated separately by the Legislature itself and being severable, and it not being contended, in view of the directive principles of State policy regarding Prohibition, that the restrictions imposed upon the right to possess of sell or buy or consume or use those categories of properties are unreasonable, the impugned sections must be held valid so far as these categories are concerned.'

This decision is clear authority that the principle of severability is applicable even when the partal invalidity of the Act arises by reason of its contravention of constitutional limita-tions. It is argued for the petitioners that in that case the Legislature had through the rules framed under the statute classified medicinal and toilet preparations as a separate category, and had thus evinced an intention to treat them as severable, that no similar classification bad been made in the present Act, and that, therefore, the decision in question does not help the respondent. But this is to take too narrow a view of the decision. The doctrine of severability rests, as will presently be shown, on a presumed intention of the Legislature that if a part of a statute turns out to be void, that should not affect the validity of the resf of it, and that that intention is to be ascertained from the terms of the statute. It is the true nature of the subject-matter of the legislation that is the determining factor, and, while a classification made in the statute might go far to support a conclusion in favour of severability, the absence of it does not necessarily preclude if.'

According to the above observations the doctrine of severability is based on wider considerations, resting as it does, on the presumed intention of the Legislature. As there was no express division or classification made in the statute impugned in Chamarbaugwalla's cast the doctrine of presumed intention of severability had to be invoked by the Supreme Court in support of the plea of severability. In the present case there being a clear-cut and separate classification made in the statute itself, the intent of severability is deducible directly from the method adopted by the Legislature in the statute itself, and is not the result of any presumption made from the object of the statute as deduced from its past history. The present case is, therefore, stronger than Chamarbaugwalla's case in this regard. The present case is also stronger than Balsara's case, because whereas in Balsara's case separate classification was the result of a notification issued by the Government under the provisions of the definition clause, in the present case separate classification is not the result of any notification issued by the Government under the power given to it under the statute but is created in the body of the statute itself. In other words, whereas in Balsara's case the separate classification was created indirectly, in the present case it is created directly by the Legislature itself.

9. Where a severable classification if made directly and expressly in the statute itself, as in the present case, there should be no difficulty at all in holding that the intention of the Legislature was to treat the two portions as severable. The intention of the Legislature in the present case is, therefore, manifest and admits of no doubt.

10. The judgment in Chamarbaugwalla's case : [1957]1SCR930 lays down seven principles that govern the doctrine of severability, They are summarised in the judgment. They may now be taken up separately and discussed In relation to the impugned provision of the U.P. Zamindars' Debt Reduction Act. The flrst principle enunciated therein is as follows:--

'1. In determining whether the valid parts of the statute are separable from invalid parts thereof, it is the intention of the Legislature that is the determining factor. The test to be applied is whether the Legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory Construction, Vol. 2, pp. 176-177.'

In enacting the U.P. Zamindars' Debt Reduction Act, the intention of the Legislature, as shown above, was to benefit the debtor-zamin-dar, who had been deprived of his property bv the State, and not the creditor. The purpose of Sub-clause (vi) of Clause (f) of Section 2 is to exempt a particular class of creditor namely, a creditor who happens to be a ward of the Court of Wards when the debt was advanced on his behalf to another person who was himself a ward under the Court of Wards Act. The number of such creditors--we can safely tell from our experience in this State--can be counted on the finger tips. On the one side is the tiny group of 'preferred' creditors, on the other side is the huge multitude of zamindar debtors. Having regard to the history and predominant object of the Act, we 'think. that it is a safe inference to draw that the Legislature would have preferred to retain the valid portion of the Act, even though the portion protecting the 'preferred' creditors was found to be invalid. The Act was not designed for the benefit of the creditors, and it is not possible to say that the State would not have enacted this legislation if the creditors, who happened to fall under aforesaid category, had not been exempted from its operation. In fact, as would appear from the judgment of the Supreme Court, the conferment of this benefit on the Court of Wards creditor, is extraneous to the purpose of the Act and has no rational nexus with the object of the statute.

11. The second principle laid down in this case is as follows:--

'2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooley's Constitutional Limitations, Vol. 1, at pp 360-361; Crawford on Statutory Construction, pp. 217-218.'

As observed above, in the present case the definition clause itself created separate categories, with the result that the valid and invalid portions are, on the face of them, separate from each other. The definition of debt as contained in the main portion is quite distinct and separable, and is capable of being worked out independently of the portion which is invalid and unenforceable.

12. The third principle laid down is as follows:--

'3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative is a whole, then also the invalidity of a part will result in the failure of the whole. Vide Craw-ford on Statutory Construction, pp, 218-219.'

The entire scheme, as appearing from the body of the Act, has been discussed above. The scheme is a carefully devised and elaborate one. Its foundation has been laid in the preamble and the structure has been built up in the body of the Act. The details of this scheme have been worked out in Sections 3 to 10, and are referred to above. The purpose of all these sections is to afford relief to the debtors. The same is the purpose of the two schedules appended to the Act. Sub-clause (vi) of Clause (f) of Section 2 is for the benefit of a certain class of creditors. This exemption is, in a way, foreign to the scheme worked out in the body of the Act. It is more in the nature of an excrescence in the Act rather than an integral part of it. The impugned portion is in disharmony with the object of the Act, and is not in consonance with the scheme promulgated in the body of the Act. In fact, it is in conflict with it Its presence introduces a disturbing element in the scheme and retards its smooth working. Verily, the scheme of the Act is capable of being operated more effectively if the impugned portion is cut out of the definition clause. If, on the other hand, it is treated as inseparable from the rest of the definition clause, then the entire scheme collapses, for the definition of the debt contained in Section 2 (f) forms the foundation of the entire Act. Its inseparability will be destructive of the entire scheme. It may also be noted in this connection that the acceptance of the view which is contended for by the Advocate-General will result in nullifying thousands of decrees and orders which must have been passed by Courts since 1953 on the basis of the U.P. Zamindars' Debt Reduction Act.

13. The fourth principle laid down is asFollows:--

'4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of the scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the Legislature, then also it will be rejected in its entirety '

It may be noted that the impugned portion constitutes a mere exemption. Its elimination leaves the definition of debt, as contended in the opening part of the clause, which is its main or governing portion, untouched and unimpaired. The opening portion constitutes the general clause. It defines debt in terms of widest amplitude. After the elimination of the impugned portion, the portion left is not thin or truncated, but substantial and real. In fact, its elimination has the effect of further widening the scope of the main portion bv extending the area of its application, thereby making it firmer, stronger and more substantial. The scheme that emerges as a result of its elimina-tion is, A scheme which is not substantially different from that intended by the Legislature hut is, in fact, more in harmony with it.

14. The fifth principle is laid down as follows:--

'5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different section; (Vide Cooley's Constitutional Limitations, Vol. 1, pp. 361-862); it is not the form, but the substance of the matter that is material, and that has to ba ascertained on an examination of the Act aswhole and of the setting of the relevant provision therein.'

The question arising out of this principle also must, in the context of what has already beensaid, be answered in favour of the appellants. In view of the above principle, it cannot be argued with any degree of force that because the valid and the invalid portions are contained in the same section, therefore, they are incapable of being separated. The substance of the matter is contained in the general clause which is valid. The impugned portion is contained in the portion relating to exemptions, and is immaterial. Further, the impugned portion is not material so far as the object of the Act is concerned.

15. The sixth principle is laid down as follows:--

'6. If after the invalid portion is ex-gunged from the statute what remains cannot e enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194.'

In the present case after eliminating the impugned portion no alteration or modification is needed to enforce the Act. The result would be that the general clause would be capable of being worked out without the exceptions. This would be the automatic result of striking down the exemptions, and not the result of any legislative action on the part of the Court. After eliminating the impugned portion, there would remain a self-working Act capable of. operating in a smooth and undisturbed fashion and subserving the salutary purpose for which It was framed.

16. The seventh principle is laid down in the following words:--

'7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, pp. 177-178.'

The history of the legislation, the object of the statute, the title and the preamble of the statute, all point to the conclusion that the exempted portion is an extraneous element in the Act. In fact as observed above, the Supreme Court has held that there is no nexus between the provision relating to exemption and the object of the Act as indicated by the history of the legislation, its title and its preamble. Under the circumstances, this principle alsowould support the contention advanced on behalf of the appellants.

17. The result of the application of the aforementioned seven principles enumerated by the Supreme Court, to the present case may now be summarised in the following seven conclusions given in the respective order of their statement as above:--

1. The dominant intention of the Legislature was to afford relief to the debtors who were zamindars. The exemptions are aimed not at giving relief to the debtors but to certain types of creditors. It cannot, therefore, be said that the Legislature would not have enacted the U.P. Zamindars' Debt Reduction Act had the exemptions in favour of those creditors not been introduced therein.

2. The separation of categories having been made by the Legislature in the relevant clause of the statute itself, the valid and the invalid portions are clearly severable in the present case.

3. The remaining portion, which is valid, forms part of the scheme designed by the Legislature to afford relief to the zamindardebtors. On the other hand, the exemption in favour of certain class of creditors are subsidiary matters, and do not form part of the integrated scheme.

4. What is left after omitting the exemptions is substantial and real. It is in consonance with the object of the Act, and advances the purpose sought to be achieved by it.

5. An examination of the provisions of the Act as a whole also leads to the same conclusion.

6. The valid portion left after excluding the invalid portion is capable of being worked out effectively and smoothly without making any real modification or alteration in the Act. In other words, as a result of its elimination, the working of the Act does not involve any legislation on the part of the Court.

7. A reference to the history, the object, the title and the preamble of the Act also fortifies the conclusion that the exemption contained in Sub-clause (vi) of Clause (f) of Section 2 relates to a minor matter, and its exclusion from the Act cannot be utilised for the purpose of defeating the major intent of the Legislature.

18. The seven principles laid down by the Supreme Court in the above case appear to be exhaustive of the tests that can be applied in a case where the doctrine of severa-bility is invoked. Thus, all the seven principles enumerated above would support the appellant's contention. The irresistible conclusion, therefore, is that the valid and the invalid portions are severable in the present case and the invalidity of the impugned portion has no effect on the validity of the remaining portion.

19. Learned Advocate-General, on the other hand, vehemently argued that in the present case the valid and the invalid portions are not severable, with the result that the entire definition of 'debt' contained in Section 2 (f) of the Act would have to be deleted thereby making the entire Act unenforceable. In support of his contention, the learned AdvocateGeneral strongly relied on the principle laid down in the Full Bench case of Bhai Singh v. The State, 1960 All LJ 68 = (AIR 1960 All 869) (FB). This Full Bench case overruled the view taken in a previous Division Bench case of this Court in Mehar Chand v. State : AIR1959All660 . In both these, cases the question of the validity of Section 29 of the Indian Anns Act (Act No. 21 of 1878) came up for decision before this Court. In the Division Bench rase of Mehar Chand : AIR1959All660 , (he validity of Section 29 of the Indian Arms Act was assailed by the applicants in revision. The applicants were convicted and sentenced under Section 19(f) of the Arms Act Section 29 of the said Act divided criminal cases arising out of prosecution of persons under Section 19(f) of the Arms Act into two categories. The first category consisted of cases in which the offence was committed in an area situate to the north of the Ganges. The second category consisted of cases in which the offence was committed in any part of India excluding the area situate to the north of the Ganges. The situation on the date of the coming into force of the Constitution of India was that under Section 29 of the Arms Act no sanction was required to prosecute persons whose cases fall within the first category but, on the other hand, sanction was required for prosecution of persons whose cases fell within the second category. The case of the accused persons. who were applicants in the revision application before the Division Bench, fell within the first category. Under the law. therefore, no sanction was required for their prosecution, and they were prosecuted without any sanction. On behalf of the applicants it was argued that Section 29 of the Anns Act being discriminatory, it contravened Article 14 of the Constitution of India, witb the result that the prosecution of the accused persons without sanction was bad in taw This argument was accepted by the Division Bench. The relevant passage in the judgment of the Division Bench is as follows:--

'The discrimination made in Section 29 ol the Arms Act between two classes of offenders, therefore, contravenes Article 14 of the Constitution The protection of prior sanction if it was to be available at all, must have been available, at least after the coming into force of the Constitution to all persons without any distinction on territorial basis. That part of Section 29, therefore, which debars one part of the State from claiming the advantage must consequently be held to have become void after the enforcement nf the Constitution under Article 13 of it.

Irrespective oi the urea in which Menu; Chand and Sarupa committed the offences which they were alleged to have committed, they could not have been prosecuted without prior sanction being taken, and if no sanction was obtained in their cases, their prosecution stood vitiated.'

Under Section 29 of the Act, as observed above, no sanction at all was needed for the prosecution of persons falling under the first category. The case of the applicants admittedly fell under the first category. The Division Bench,however, held that because the protection of the sanction was available to persons who fell within the second category, the same protection should be available to persons who fell within the first category. The view taken by the Division Bench obviously involved alteration or modification oi law. According to law no sanction was needed for the prosecution of the accused persons whose case fell in the first category. On the other hand, according to the view taken by the Division Bench, sanction became necessary for their prosecution. This view clearly amounted to an alteration of the law. In fact. It was contrary to the provisions of Section 29 of the Arms Act according to which no sanction was needed at all for the prosecution of an offender whose case fell under the first category. Owing to the above error in the judgment of the Division Bench, the view taken by it needed to be referred to a larger Bench for a reconsideration of the same. This was done in the Full Bench case of : AIR1960All369 . In this case the Full Bench upheld the view of the Division Bench that the classification in Section 29 of the Arms Act was unreasonable, but reversed its view that sanction was necessary for the prosecution of persons falling under the first category, The relevant passage of the judgment of the Full Bench runs as follows: --

'It was clearly the intention of the Legislature that sanction for a prosecution under Section 19, Clause (f), should not be necessary in certain areas in the present case, north of the Ganga. The Court has held that the classification made by Section 29 is unreasonable; and that, in our opinion, is as far as it can go. The necessary consequence of holding the classification to be unreasonable is that Section 29 is unconstitutional and, therefore, invalid. It is, we think, for the Legislature then to decide what course it shall adopt. The Court in Mehar Chand's case in declaring sanction to be necessary in all cases of a prosecution under Section 19, Clause (f), has, m oui opinion, altered the law and thereby encroached on the legisla five power'.'

The words 'altered the law and thereby en croached on the legislative power' have been underlined (here put in single inverted commas) in the above passage by me with a view to bring out the distinction between the case relied on and the present one. The alteration or modification of law in this fashion was clearly a contravention of the sixth principle laid down by the Supreme Court in the case of : [1957]1SCR930 . discussed above.

According to this principle, which has been reproduced above, if the enforcement of the Act, after deleting the invalid portion, results in alteration or modification of the law, the whole of it has to be rejected In the present case the elimination of Sub-clause (vi) of Clause (f) of Section 2 of the Act does not result in alteration or modification of the law at all. On the other hand, it facilitates the smooth working of the law us laid down in the main definition of 'debt'. The argument of the learned AdvocateGeneral seems to ignore the fact that in the provision of law arising for consideration in the present case there is a general clause containing definition of the term 'debt', and the invalid portion has come in only by way of exception to the general clause. If the exception is cut out, the result is that the general clause would have full operation unrestricted by the exemption created by the invalid portion. The exclusion of the invalid portion, therefore, far from obstructing the working of the general clause promotes, advances and subserves its smooth operation. This distinction can be emphasised from another angle as well. In the case before us there is a general definition of 'debt' given in the main clause which covers the entire area. The subsequent portion of the definition, however, exempts certain areas which would otherwise be covered by the general clause and included in it. Their exclusion, therefore, only results in the general clause covering the area which, but for the exclusion, was already covered by it. In other words, in the case before us there is a general clause and a Sub-clause. On the other hand, in the Full Bench case cited, this situation did not arise. In the Full Bench case there were two completely separate classes, They were mutually exclusive of each other. The elimination of one, therefore, necessarily resulted in the elimination of the other. It was not a case of a Sub-class within a class, but a cast; of two independent classes the existence of either of which was destructive of the other. That is not the situation in the case before us. In the present case the main portion has nexus with the object of the statute and is valid for that reason, but the portion relating to exemption lias no nexus with the object of the statute and is invalid for that reason. The main portion being general, with the disappearance of the subsidiary portion, the latter merges in the former which therefore remains fully workable. The Full Bench case of this Court relied on by the learned Advocate-General, therefore, being clearly distinguishable, cannot be pressed into service in support of his argument.

20. The next argument advanced by the learned Advocate-General was that where a provision of law in a piece of legislation is found to be discriminatory, it is invariably impossible to separate the valid and the invalid portion of the said legislation, because the mental process involved in discrimination is a single and an indivisible one. This argument also appears to be open to a number of criticisms. In the first place, in a case like the present, where one portion is found to be valid or good and the other invalid or bad, it cannot be said that the mental process is a single and indivisible one. The valid portion, which is contained in the main clause, is a genera! one. It grants relief to the debtors. On the other hand, the exceptions that follow deny relief to the debtors. The valid portion advances the object of the Act, whereas the invalid portion frustrates the same. The former process which subserves the purpose of the Act can be described as a forward process. The latter process which foils the purpose of the Act can, from this point of view, be described as a backwardprocess. One is the converse of the other. From this point of view it cannot be said that the two constitute a single process or even an analogous process. In any case, in determining the validity of a provision of law under Article 14 of the Constitution of India, the Court is concerned not so much with the mental process involved in the discriminatory provision as with the consequences following therefrom. The former is a psychological and subjective aspect, whereas the latter is a legal and objective aspect of the matter. The real intent of the legislature is to be discovered from the language and scheme of the Act.

21. As a corollary to the above contentionthe learned Advocate-General further urgedthat in no case in which a provision of law isheld to be discriminatory can there be severancebetween the valid and the invalid portion. Thisargument is a natural consequence of the earlierargument according to which the mental process involved in the act of discrimination is asingle and indivisible one. The answer to thisargument has already been given above.Further, this argument is repelled by a numberof cases in which Courts have applied thedoctrine of severability even though the invalidity of the impugned provision in those caseswas the result of discrimination. An instance ofit is readily available in the case of MukanChaud v. Rao Raja Inder Singh, ILR 9 Raj 547.It should be noted that this is the very case,which went up in appeal before the SupremoCourt, and the judgment in which is reportedin the : [1964]6SCR903 . In the High Courtthe judgment in this case was delivered by aDivision Bench consisting of K. L. Bapna, Acting C. J. and Jagat Narain, J. The judgment ofthe Division Bench of the High Court did advertto this aspect of the matter. The followingobservations in the said judgment are relevantto the point:--

'We are accordingly of the opinion that the exceptions contained in the definition of 'debt' are discriminatory and are hit by Article 14 of the Constitution. These exemptions are however severable from the remaining provisions of the Act. We, accordingly, hold that the following portion out of the definition of debt contained in the impugned Act is void:--

'or a debt due to:--

(i) the Central Government of any State,

(ii) a local authority;

(iii) a scheduled bank;

(iv) a co-operative society; and

(v) a waqf, trust or endowment for a charitable purpose only; or

(vi) a person, where the debt was advanced on his behalf bv the Court of Wards'.'

In appeal the Supreme Court upheld the view of the High Court that the exemptions in the above provision of law being discriminatory art bad. No doubt, in its judgment, the Supreme Court did not advert to this aspect of the matter. This might have been due to the fact that the judgment of the Supreme Court was given in the appeal of the State in which the question of severability was not material. The question could only have arisen in the appealby the creditor, but the said appeal had abated.

22. Another instance that would militate against the contention advanced by the learned Advocate-General is to be found in the Division Bench judgment of the High Court of Allahabad in the case of Firm Jaswant Rai Jai Narain v. Sales Tax Officer : AIR1955All585 . In this case the proviso to Section 3 of the U. P. Sales Tax Act (Act No. 15 of 1948) was challenged as ultra vires the Constitution. Section 3 was the charging section of the Sales Tax Act. The main portion of the section laid down the general rule that every dealer would be liable to pay sales tax at a certain rate. This was followed by a proviso according to which the Provincial Government was empowered to issue a notification in the official gazette reducing the rate of tax payable by a dealer or a class of dealers. The result of the issue of such a notification was to create in favour of such a dealer or class of dealers an exemption from tax payable under the general clause. The proviso was challenged as invalid being discriminatory and, therefore, hit by Article 14 of the Conititution. Dealing with this question the Court observed as follows:--

'It may be noted at the outset that the Sales Tax Act is a piece of legislation intended primarily for the raising of revenue for the State. It is an Act which charges certain persons with the liability for the payment of tax upon sales of certain goods. The charging provisions are general. Every person who falls within the definition of a 'dealer' is liable to pay the tax under certain conditions. This general provision is followed up by a number of exceptions.

These exceptions are in the nature of affording relief to certain dealers or class of dealers or in respect of the sale of certain goods or class of goods. It is in the light of these tacts that we nave to consider whether the provisions relating to the exemptions, which are challenged as creating unreasonable discrimination, can be separated from the general provisions of the Act,

The principles, upon which the severability of an impugned provision of an Act is judged are well settled. As was observed by the Supreme Court in Gopalan v. State of Madras : 1950CriLJ1383 , what we have to see is whether the omission of the impugned portions of the Act will 'change the nature or the structure or the object of the legislation. It) the words of Mahajan J., in State of Bihai v. Kameshwar Singh, : [1952]1SCR1020 .

'The real question to decide in all such cases is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive, or, it has sometimes been put, whether on a tair review of the whole matter it can be assumed that the legislature would have enacted at all that which survives without enacting the part that is 'ultra vires''.

The above observations would mutatis mutandis apply with full force in the present case. The present Act, viz., the U. P. Zammdars' Debt Reduction Act is a legislation intended primarilyfor the benefit of the debtors. The general provision of the definition relates to it. This general provision is followed by a number of exceptions which are discriminatory and are severable from the rest. There is no reason why the principle laid down in this case should not be applicable to the present one. In a subsequent portion of the judgment it is observed:

'Applying these principles to the provisions of the impugned statute, we find that the dominant motive of the legislature in placing the Act on the statute book was to raise revenue, more particularly because, in the Act, the charging section is general in its scope.

A secondary and subordinate intention also appears, namely, that certain specified persons or institutions and such other persons as may be notified by the Government be exempted from taxation but the two portions of the Act are not so interdependent that it could be said that if the exemptions are eliminated, the legislature would still have not passed the main enactment.

We think that the exempted clauses can be separated from the rest of the Act which can be given effect to and all that will happen will be merely that a few exempted persons would be liable to pay the tax'.

In the present case also, bearing in mind the dominant purpose of the legislature, the exemptions relate merely to secondary matters and incorporate what is described in the above passage as a subordinate intention. The exempted persons form, as pointed out above, a subclass within a class. Their elimination, therefore, would leave the valid portion of the Act unaffected. With the disappearance of the subclass the persons falling under the exempted category will naturally come under the general class.

23. Connected with the above argument of the learned Advocate-General was another general argument that the doctrine of severability can be invoked only in cases where invalidity arises out of want of legislative competence, and not in cases where it arises out of violation of constitutional prohibitions as in the present case. This argument was advanced before the Supreme Court in : [1957]1SCR930 . The Supreme Court strongly repelled this contention in the following words:--

'When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the competence of the legislature or by reason of its provision contravening constitutional prohibitions'.

24. No other argument was advanced before us.

25. The net result of the above discussion is that the two questions formulated by us in the earlier portion of this judgment should be answered as follows:--

(1) Sub-clause (vi) of Clause (f) of Section 2 of the U. P- Zamindars' Debt Reduction Act is invalid being violative of Article 14 of the Constitution of India.

(2) The invalid portion, however, is sever-able from the valid portion with the result that the definition of 'debt' contained in the main portion of Clause (f) remains alive so as to make the Act itself enforceable irrespective of the fact that the invalid portion becomes inoperative.

The plea of the appellants judgment-debtors, therefore, prevails, and they would be fully entitled to all the benefits afforded to debtors under the U. P. Zamindars' Debt Reduction Act, 1953. As a result of this finding this case will have to be remanded.

26. We, accordingly, allow this appeal, set aside the Judgment and decree of the trial Court. We further order that this case shall be remanded to the trial Court for a re-determination of the amount due to the plaintiff-respondent after giving the defendants-appellants the benefits to which they are entitled under the U.P. Zamindars' Debt Reduction Act, 1953. The appellants will be entitled to their costs from the respondent.


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