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Raghunath Choudhury Vs. Budhi Naik - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 267 of 1961
Judge
Reported inAIR1964Ori49
ActsConstitution of India - Article 19, 19(1) and 19(5); Nayagarh Land Transfer Rules - Rule 3
AppellantRaghunath Choudhury
RespondentBudhi Naik
Appellant AdvocateB.K. Pal, ;D.P. Mohapatra, ;Bijoy Pal and ;G.B. Patnaik, Advs.
Respondent AdvocateR.N. Misra and ;R.C. Patnaik, Advs.
DispositionAppeal partly allowed
Cases ReferredK.K. Kochuni v. State of Madras
Excerpt:
.....clause (5) of article 19 observed that it did not mean 'the 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. state of madras, air 1960 sc 1080 (1104). thus a law meant for the protection of the weaker sections of the public, especially members of low castes, may be held to be in the interests of the general public also because if members of those castes who own lands arc reduced to the position of landless serfs due to unrestricted exploitation by moneylenders 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..........held that the transaction was invalid on account of contravention of rule 3 of the nayagarh land transfer rules. that rule reads as follows:'3. no land or other immoveable property of an aboriginal or a person of low caste, specially pans, haris, and khonds, will be sold, mortgaged, or leased put to ryots of high class without the written sanction of the state authority. note: for the purpose of this rule the following are considered aboriginals or persons of low caste: tanti, jawra, pathuria, dora, khaira, idika, parida khatia, tulabhina, gokha, bhogia, raouls, dombs, khandal bauri, tanla, siela, mochi, sujan, kandra, kela, dom, pan, hadi, sanakia, kondh, sabar and nodha.' when the feudatory state of nayagarh was merged with the province of orissa on 1-1-1948 the government of.....
Judgment:

Narasimham, C.J.

1. This is a defendant's appeal against the concurrent decisions of the two lower courts decreeing the plaintiffs suit and declaring that a sale deed executed by the plaintiff on 28-1-1958 for Rs. 500/- in favour of the defendant was invalid and did not convey any title. The plaintiff belongs to Tanla caste in the sub division of Nayagarh which was a former Feudatory State of Orissa. He was in possession of the disputed property as Tokari Jagiri land.

2. It was found by the two lower courts that on 28th January 1958 he executed a sale deed con-veyingi the said property to the defendant for a sum of Rs. 500/-. The defendant is admittedly a high caste Hindu. Though the two lower courts held that the sale deed was validly executed and there was consideration, they nevertheless held that the transaction was invalid on account of contravention of Rule 3 of the Nayagarh Land Transfer Rules. That Rule reads as follows:

'3. No land or other immoveable property of an aboriginal or a person of low caste, specially Pans, Haris, and Khonds, will be sold, mortgaged, or leased put to ryots of high class without the written sanction of the State authority.

Note: For the purpose of this Rule the following are considered aboriginals or persons of low caste: Tanti, Jawra, Pathuria, Dora, Khaira, Idika, Parida Khatia, Tulabhina, Gokha, Bhogia, Raouls, Dombs, Khandal Bauri, Tanla, Siela, Mochi, Sujan, Kandra, Kela, Dom, Pan, Hadi, Sanakia, Kondh, Sabar and Nodha.'

When the Feudatory State of Nayagarh was merged with the Province of Orissa on 1-1-1948 the Government of Orissa, exercising delegated powers of the Central Government made the well known Administration of Orissa States Order 1948 by which while applying some of the laws of the Province, in force, to the merged State, the existing laws of Nayagarh State were also continued in force, so long as they were not repugnant to the laws so applied. Hence notwithstanding the merger, the Nayagarh Land Transfer Rules continued to remain in force as there was no repugnancy between those Rules and the laws applied to that State by that Order. Even after the expiry of the said order the Nayagarh Land Transfer Rules continued to remain in force in. Nayagarh by virtue of paragraph 4 of the State Merger Governors Provinces Order of 1949. Subsequently the Orissa Legislature passed the Orissa Merged States Laws Act in 1950. Section 7 of that Act modified she tenancy laws in force in the merged States to the extent indicated therein. Clause (b) of that section prohibited the transfer of an occupancy holding by an occupancy tenant who was a member of an aboriginal tribe to a person who was not a member of an aboriginal tribe unless such transfer was made with the previous permission of the Subdivisional Magistrate concerned. The expression 'aboriginal tribe' was defined in Clause (ii) of the Explanation to Clause (b) of that section as meaning 'any tribe that may from time to time be notified as such by the Provincial Government'. It was stated before us by counsel for both sides that till now no notification has been issued under that clause defining 'aboriginal tribes'. Hence if section. 7 of the Merged States Laws be held to apply to the present case the plaintiff cannot get the benefit of Clause (b) of Section 7 as he has not been notified as belonging to a member of the aboriginal tribe.

3. Mr. Misra for the respondents contended that Clause (b) of Section 7 applies only to transfer of a holding belonging to an occupancy tenant and that there was no evidence in this case to show that the plaintiff was an occupancy tenant. All that was admitted was that he was holding the jagir land. There was also no evidence to show that a jagir land ceased to be so on payment of rent thereby rendering the jagir also an occupancy holding by virtue of Clause (g) of Section 7 of the aforesaid Act. As there is no evidence on these matters we must bold that Section 7 of the Merged States Laws Act has no application to the plaintiffs land. Consequently the provisions of Nayagarh Land Transfer Rules continued to remain in force and Rule 3 of the said Rules will operate as a bar to the transfer of the land unless written sanction of the authority concerned was obtained. It is admitted that no such sanction was obtained. The plaintiff's case is that 'Tanla' is mentioned as one of the castes specified in the foot note to Rule 3 and hence the prohibition enjoined by that Rule will apply with full force and the two lower courts were justified in holding that the transfer in favour of the defendant was invalid.

4. Mr. Pal for the appellant defendant raised an ingenious constitutional objection to the validity of the said Rule. He rightly pointed out that in the Constitution there is no such statutory expression as 'aboriginal tribe' and that special protection is given to only 'scheduled castes' and 'scheduled tribes' as described in Articles 341 and 342. 'Tanlas' have been described as members of the scheduled castes -- see item 88 (under Orissa) of the Schedule to the Constitution (scheduled castes) Order 1950 made by the President in exercise of the Powers conferred on him by Article 341(1). Article 19(1)(f) of the Constitution confers a fundamental right on all citizens to acquire, hold and dispose of properties subject to the restrictions contained in Clause (5) of that Article. Under that clause if any pre-existing law imposes reasonable restrictions on the exercise of any such right either in the interest of the general public or for the protection of the interests of any scheduled tribe that law will not be struck down as unconstitutional even though it may contravene Sub-clause (f) of Clause (1) of Article 19. Mr. Pal's contention therefore is that while a law which is meant to protect the interests of scheduled tribes may be saved, any law which is meant to protect the interests of scheduled castes may not be saved by Clause (5) of Article 19 unless it is further established that the restrictions imposed by that law are reasonable and that those restrictions are in the interests of the general public. He therefore contended that as there was absolutely no material on record to show that the restrictions on the right of transfer imposed by Rule 3 of Nayagarh Land Transfer Rules (so far as the lands of scheduled castes were concerned) were either reasonable or were in the interests of the general public, that law will not be saved by Clause (5) of Article 19 and should therefore be struck down as unconstitutional as contravening Sub-clause (f) of Clause (1) of that Article.

5. Mr. Pal is undoubtedly right in saying that the express mention of 'scheduled tribes' alone in Clause (5) of Article 19 and the significant omission of 'scheduled castes' in that clause must be given due importance. Hence any law for the protection of the scheduled tribes will always be saved by Clause (5) and a further investigation as to whether the restrictions imposed by that law are in the interests of the general public, will not arise. But where a law is meant for the protection of scheduled castes or any other section of the public (apart from scheduled tribes) the reasonableness of the restrictions imposed by that law and the further question as to whether the protection given by that law is in the interests of the general public are both justiciable.

6. But this conclusion only shows that the court has to examine whether (i) the impugned Rule 3 of the Nayagarh Land Transfer Rules imposes reasonable restrictions and (ii) those restrictions are in the interests of the general public. That Rule merely restricts the freedom of transfer of immoveable property by certain classes of people who are either aboriginals or members of low castes. A list of such castes is given in the note attached to the Rule. Such restriction on the right of transfer of tenants' lands is a well known feature in the Revenue laws of many States including Orissa, and they are meant mainly to protect the weaker sections of the public from exploitation by rich moneylenders who would otherwise reduce the tenants to mere landless labourers. Thus, in the Agency Tracts, Interest and Land Transfer Act 1917 (now replaced by the Orissa Scheduled Areas Transfer of Immoveable Property (by Scheduled Tribes) Regulation, 1956), there were restrictions on the transfer of lands from members belonging to hill tribes to other persons. Similarly, in Section 46 of the Central Provinces Tenancy Act 1898 (in force in Sambalpur District), there were restrictions on the transfer of occupancy holdings and in the Chotanagpur Tenancy Act also there were similar restrictions. These restrictions can be justified as having been based on the larger principle of the State intervening to prevent the exploitation of the weaker sections of the community by more powerful and richer sections. This has been expressly recognised in Article 46 of the Constitution which runs as follows:

'The State shall promote with special care the educational and economic interests of the weaker sections of the people, in particular the scheduled castes and scheduled tribes, and shall protect them from social injustice and all forms of exploitation.'

In State of Bombay v. F.N. Balsara, AIR 1951 SC 318 (328) their Lordships.' of the Supreme Court pointed out that in judging the reasonableness of the restrictions, for the purpose of applying the fundamental principles, the directive principles of State Policy should be borne in mind. See also Sashibhusan v. Mangala, ILR 1953 Cut 45: (AIR 1953 Orissa 171). Hence the reasonableness of such restrictions either in any existing law or in any new law made after the commencement of the Constitution, cannot be doubted.

7. Mr. Pal rightly did not challenge the reasonableness of the restriction on transfer, imposed by Rule 3, but urged that there was nothing on record to show that the restriction was in the interest of the general public. According to him the low castes and tribes specified in the note attached to that Rule cannot be said to constitute the 'general public', and any law made for their benefit cannot be held to be in the interest of the 'General Public'. This argument is also not available in view of the pronouncement of the Supreme Court. As early as 1952 the Calcutta High Court in Iswari Prosad v. N.R. Sen, AIR 1952 Cal 273 while construing the expression 'in the interests of general public' occurring in Clause (5) of Article 19 observed that it did not mean 'the 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 Orissa 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 (1104). Thus a law meant for the protection of the weaker sections of the public, especially members of low castes, may be held to be in the interests of the general public also because if members of those castes who own lands arc reduced to the position of landless serfs due to unrestricted exploitation by moneylenders 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. If is also well known that in the former Garhjat States including Nayagarh aboriginals and low castes form a substantial percentage of the population and they require special protection, as they cannot compete on equal terms with the higher castes. In the Settlement Report of Nayagarh of the year 1932, in para 57, it was noticed that some of the aboriginals were subjected to exploitation by their more civilised neighbours and the State had to give them protection. I must therefore hold that both the conditions required by Clause (5) of Article 19 of the Constitution for resting the constitutional validity of Rule 3 of the Nayagarh Land Transfer Rules have been fulfilled and that rule cannot be held to be invalid.

8. The two lower courts were therefore justified in holding that the sale deed was invalid and that no title validly passed. But the defendant is entitled to return of consideration money which he paid to the plaintiff. Mr. Misra for the plaintiff-respondent also conceded that he would have no objection if an order to this effect is passed. While therefore affirming the decision of the two lower Courts and holding the impugned sale deed to be invalid, we allow the appeal to the limited extent of directing the respondent-plaintiff to pay the consideration money of Rs. 500/- (Rupees five hundred) to the appellant-defendant within two months from today, failing which the defendant will be entitled to recover interest from the plaintiff at 6 per cent per annum, until date of payment.

9. The appeal is disposed of accordingly. Bothparties will bear their own costs of this appeal.

Das, J.

10. I agree.


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