R.N. Misra, J.
1. This is an application for a writ of certiorari directed against the order of the Subdivisional Officer, Khon-damals (Opposite party No. 2) passed under Section 60 of the Khondmals Laws Regulation 1936 (hereinafter referred to as the 'Regulation', as also the order of the Collector, Phulbani (Opposite party No. 1), in appeal against the former order.
2. One Sidheswar Mallik a member of the Scheduled Tribes was a joint owner of certain lands along with four co-sharers and obtained transfer of the interest of the co-sharers in his favour. Sidheswar applied for permission to the opposite party No. 2 for alienation of the property now in dispute in favour of the petitioner and permission was accorded in May 1968, vide An-nexure-2. The petitioner claims that the sale took place thereafter and he was put into possession. Opposite parties 3 to 4 were set up by some enemies of the petitioner and applied to the Sub-divisional Officer (opposite party No. 2) under Section 60 of the Regulation on the allegation that the lands in dispute were in their possession as tenants and their possession could not ' be affected by the alienation made by the co-sharers in favour of Sidheswar. The subsequent alineation by Sidheswar in favour of me petitioner was, therefore, bad.
The Sub-divisional Officer got the application inquired into by the Tahsildar, Khondmals. In the inquiry, Sidheswar produced a copy of the unregistered sale deed dated 6-3-1968 under which he purchased 26.36 acres of land from his four co-sharers for a consideration of Rs. 2,500/-. Thereafter he obtained the requisite permission for transfer under Section 60 of the Regulation. Permission was granted in R. L. T. Case No. 19 of 1968 on 16-5-1968 and the sale deed was executed by Sidheswar in favour of the petitioner. Upon measurement, the area alienated was found to be 21.61 acres only. By order dated 28th of August, 1969, the Sub-divisional Officer, in exercise of powers under Section 60 (3) of the Regulation, directed that possession of the disputed property be made over to the opposite parties. The petitioner filed an appeal before the Collector (opposite party No. 1). That however, was dismissed on 25-7-1970 as barred by limitation. This writ application has thereafter been filed.
3. Mr. Asok Das for the petitionercontends--
(i) The restriction imposed under Section 60 of the Regulation is ultra vires the Constitution, inasmuch as it casts an unreasonable restriction on the fundamental right guaranteed under Article 19(1)(f) of the Constitution.
(ii) The provision in Section 60 (1) of the Regulation vests unguided and uncontrolled discretion in the executive and the provision, therefore, is ultra vires the Constitution,
(iii) The Regulation has been impliedly repealed by Orissa Regulation 2 of 1956--therefore, the opposite party No. 2 had no jurisdiction to set aside the sale and direct possession to be restored of the property in question as the alienation by the four co-sharers in favour of Sidheswar was not to be affected by Regulation 2 of 1956.
(iv) The opposite parties 3 to 14 have no interest in the property and possession could nof be restored to them even under the scheme of the Regulation.
4. Counsel for both parties agreed that if the first contention of Mr. Das is accepted, the writ application is bound to succeed. Since that is the most fundamentalaspect in the matter, we propose to deal with it first.
5. The Regulation came into force with effect from 1st April 1936. As its preamble shows it was a consolidating statute for the purpose of peace and good Government of the Khondmals district. Chapter IX of the Regulation deals with the subject of landlord and tenant. Section 60 which is impugned before us provides:--
' (1) No transfer or charge whether permanent or temporary by a tenure-holder or raiyat of his right in his tenure or holding or any portion thereof, whether by mortgage, lease, sale, gift, exchange or otherwise, shall be valid unless it is made with the written consent of the Deputy Commissioner,
(2) No transfer or charge in contravention of Sub-section (1) shall be registered, or shall be in any way recognised as valid by any Court, in the exercise of civil or revenue jurisdiction.
(3) If any tenure-holder or raiyat transfers his right in his tenure or holding or any portion thereof in contravention of Sub-section (1), the Deputy Commissioner may, in his discretion, eject the person in possession of the land in respect of which such transfer was made, ana may either--
(a) restore the land to the tenant who transferred it, or to any of his heirs or
(b) re-settle the land with another tenant.
Explanation-- xx xx
(4) xx xx xx'
Sub-section (1) therefore, required allalienations whether permanent or temporaryto be with the written consent of the DeputyCommissioner. Thus it provides restrictionon transferor. According to Mr. Das suchrestriction is clearly in contravention of theright guaranteed under Article 19(1)(f) ofthe Constitution.
Under Article 19(1)(f) every citizen has a right to acquire, hold and dispose of property and this right is subject to me provision in Sub-article (5) to the followingeffect:-
'Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, reasonable restriction on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.'
The Regulation is existing law and the guarantee under Clause (f) of Article 19(1) of the Constitution would be subject to reasonable restrictions on the exercise of the right as provided in such existing law. The position is settled by high authorities that even existing law would give way when such law would conflict with provisions in Part-III of the Constitution.
In the case of Bhau Ram v. Haij Nath, AIR 1962 SC 1476, the vires of provision for pre-emption in the Rewa Pre-emption Act of 1946 was under consideration. That Act was existing law within the meaning of the Constitution. In lie majority judgment, it was indicated:
'........ We have to judge the reasonableness of the law in the context of the fundamental rights which were for the first time conferred by the Constitution on the people of this country and which were not there when the Courts might have considered the reasonableness of the custom, if any, in the context of things then prevalent. ...'
When the Regulation came into force in 1936 the situation was very different. The provisions did not have to stated the scrutiny in the background of fundamental rights. The vires of Section 60 must, therefore, be subjected to the test of Article 19 and if it turns out to be inconsistent with it, the restrictive provision has to be struck down as ultra vires. (See Ramdayal v. Hari Shankar, AIR 1968 Pat 310 (FB).)
6. It is not disputed before us that Section 60 of the Regulation provides a restriction on disposal of property a guarantee provided under Article 19(1)(f) of the Constitution. It is equally not disputed that the restriction is not for the protection of the interests of any Scheduled Tribe. It is conceded that unless the restriction imposed under Section 60 of the Regulation is accepted by us to be a reasonable restriction on the exercise of the right to dispose of property to he in the interests of the general public, the contention of Mr. Das that the restriction is ultra vires the guarantee has to succeed. It is, however, strenuously contended on behalf of the State that the restrictive provision is reasonable and is in the interests of the general public.
7. In 'Jurisprudence and Legal Eassays' Frederick Pollock has pointed out:--
'Ownership may be described as the entirety of the powers of use and disposal allowed by law. This implies that there is some power of disposal, and in modern times we should hardly be disposed to call a person an owner who had no such power at all, though we are familiar with 'limited owners' in recent usage. If we found anywhere a system of law which did not recognise alienation by acts of parties at ail, we should be likely to say not that the powers of an owner were very much restricted in that system, but that it did not recognise ownership. The term, however, is not strictly a technical one in the Common Law.'
It has been pointed out by Mathew, J., in S. N. Kova v. Union Territory, L. M. & A. Islands, AIR 1967 Ker 259:--
'........ The most fundamental element of ownership is the right to alienate. A person having no right to alienate cannotbe said to be an owner.'
The right to alienate is an inherent incidence of ownership. Under Section 60 (1) of the Regulation, the right to alienate has been made dependent upon written consent of the Deputy Commissioner. No guideline has been indicated in the statute in the matter of grant of consent by the Deputy Commissioner. Section 66 of the Regulation authorised Government to make Rules for the guidance of the Deputy Commissioner or the Sub-divisional Officer in the exercise of any of their powers under Chapter IX. Mr. Asok Das took the stand that no guideline had been indicated either by the statute or by any Rules made -under Section 66 of the Regulation, Such contention has not been countered nor have we been shown any I Rules providing the guideline. It, therefore, 'follows that the right of alienation is conditioned upon a written consent of the Deputy Commissioner for the grant of which no guideline has at all been indicated and arbitrary discretion has been vested in the Deputy Commissioner.
8. Unless the restriction imposed under Sub-section (1) of Section 60 of the Regulation is covered by Article 19(5) of the Constitution, the restriction must be struck down as conflicting with the fundamental rights. It has already been noted that the restriction in Section 60 (1) of the Regulation is not for the protection of the interests of any Scheduled Tribes. Therefore, the vires of the restriction has to be examined by applying the test 'is it in the interests of general public?'
9. In the case of Sasthi Pado v. Anandi Chaudhary, AIR 1967 Pat 25, while examining the vires of the restriction imposed on the right of transfer under Section 46 of the Chota Nagpur Tenancy Act, it was indicated:--
'Before examining the reasonableness or otherwise of the restriction imposed on the right of transfer under proviso (c) to Sub-section (1) of Section 46 of the Act, it may be pointed out that the expression 'interests of the general public' in Clause (5) of Article 19 is very wide, and the State is always competent to impose restrictions under Clause (5) on grounds of social and economic policy. The right to freedom of citizens to acquire, hold and dispose of properties may thus be circumscribed on such grounds as well. It may further be clarified that the mere fact that the impugned provision does not directly affect the citizens of other States of the Republic of India or even of the other divisions of the State of Bihar itself, does not, in my opinion, necessarily imply that the restrictions imposed thereunder are not in the interests of the general public. Legislation affecting a particular class or a particular area would, quite obviously, directly affect the members of that particular class or the inhabitants ofthat particular area only, but if the object of legislation was the protection and safeguarding of the interests of a particular class or of persons residing in a particular area, or, the object was the removal of some serious abuse or grievance or discontent of that particular class or particular area, it must be held that such a legislation indirectly affects the public in general. It can hardly be disputed that a legislation for securing one or another of the objects referred to in Clauses (b) and (c) of Article 39 of the Constitution must be held to be a legislation in the interests of the general public.'
This Court in the case of Raghunath v.Budhi Naik, AIR 1964 On 49, referring tothe phrase 'in the interests of general pub-lie' said:--
'........ As early as 1952 the Calcutta High Court in Iswari Prasad v. N. R. Sen, AIR 1952 Cal 273 (FB) while constru-ing the expression 'in the interests of general public' occurring in Clause (5) of Article 19 observed that it did not mean 'die interests of the public of the Republic of India' and that legislation affecting a limited class of persons may as well be legislation, in the public interest. This definition was followed by a Division Bench of this Court in ILR (1953) Cut 45 = (AIR 1953 On 171) and has also been cited with approval by the Supreme Court in a recent decision reported in K. K. Kochuni v. State of Madras, AIR 1960 SC 1080 at p. 1104. Thus a law meant for the protection of the weaker sections of the public, especially members ot low castes, may be held to be in the interests of the general public also because if members of those castes who own lands are reduced to the position of landless serfs due to unrestricted exploitation by money lenders and high caste people, far-reaching evil consequences, including serious problem of maintenance of peace may ensue and hence the protection of these persons who form the weaker section of the community, might well be in the interests of the general public........'.
10. Khondmals, as the name signifies, was the land of the Khonds. It may have been historically so, but there can be no dispute raised against the assertion of Mr. Das that by 1936 or at any rate, by 1950 within the area known as the Khondmals there were thousands of residents who were not members of the Scheduled Tribes and were equal to the residents of the other parts of the State and requiring no special protection. In respect of them, it is not necessary to provide for protection as in the case of members of the Scheduled Tribes.
11. The contention of Mr. Asok Das that Orissa Regulation 2 of 1956 has by necessary implication repealed the Regulation of 1936 may be casually examined. Undoubtedly, Orissa Regulation 2 of 1956 repeals those provisions which have beenshown in Section 9 (1) thereof read with the Schedule and the Regulation of 1936 is not included therein. Section 3 (1) of the Regulation of 1956 provides:--
'Notwithstanding anything contained in any law for the time being in force any transfer of immovable property situated within a Scheduled Area, by a member of a Scheduled Tribe shall be absolutely null and void and of no force or effect whatsoever unless made in favour of another member of a Scheduled Tribe or with the previous consent in writing of the competent authority.'
Under Section 2 (e) of the 1956 Regulation, 'Scheduled Area' has the same meaning as given thereto under the Scheduled Area (Part A States) Order, 1950. Reference to that Order shows that the Khondmals are included. Therefore, Regulation 2 of 1956 has application in the Khondmals and under it necessary protection has been given to the members of the Scheduled Tribes. Again, under Section 22 of the Orissa Land Reforms Act, 1960 a similar provision has been made. The Land Reforms Act has general application while the Regulation of 1956 applied to Scheduled Tribes in the Scheduled Areas only.
12. It has now to be considered whether a total restriction in respect of every tenure holder or raiyat living in the Khondmals as provided in Section 60 (1) of the Regulation is in the interests of the general public.
Regulation 2 of 1956 does not require permission of the competent authority when the alienor and the alienee are members of the Scheduled Tribes. There is public policy behind such a provision. The Land Reforms Act also recognises the same position. Under the Regulation (IV of 1936) even a member of the Scheduled Tribes while alienating in favour of another member would require the consent of the Deputy Commissioner--a restriction which the later Regulation 2 of 1956 does not require. To allay the apprehension of exploitation, protection to members of the Scheduled Tribes may be necessary and, therefore justified. But general restrictions in respect of all without any manifest purpose cannot be said to be in the interests of the general public. On the other hand, it conflicts--nay annihilates--the fundamental right under Article 19(1)(f) of the Constitution. In our view, the restriction is not reasonable, nor is it in the interests of the general public and, therefore, does not come within the ambit of Article 19(5) of the Constitution. We accordingly hold that the restriction put in Section 60 (1) of the Regulation IV of 1936 is ultra vires the Constitution, inasmuch as it imposes unreasonable restriction on the fundamental right to dispose of property. Once that provision is declared to be ultra vires the Constitution, the proceeding taken by the opposite party No. 2 must be quashed.
13. It is not necessary to examine the other contentions of Mr. Das. Under Regulation 2 of 1956, the alienation by the co-sharers in favour of the vendor of the petitioner would not be bad, because all of them belonged to the Scheduled Tribes and no permission was necessary to make the alienation valid.
14. We would accordingly allow the application, quash the proceeding itself as also the order of the opposite party No. 2 direct that if the petitioner has been dispossessed, possession of the disputed property be restored to him by the opposite party No. 2 within a period of three months from today. In the facts of this case, we are of the view that interests of justice would be appropriately served if all parties are directed to bear their respective costs.
B.K. Ray, J.
15. I agree.