1. The question that arises for decision in these petitions is the validity of the Tanjore Tenants and Pannaiyal (Protection) Ordinance 4 of 1952 which was modified by Ordinances 5 and 6 of 1952 and ultimately replaced by Act 14 of 1952.
The petitioners are Mirasdars or land owners in the District of Tanjore and these are applications by them under Article 226 of the Constitution for writs of certiorari to quash various orders passed by the Revenue Divisional Officer acting under the provisions of the Ordinance and Act aforesaid. W. P. No. 859 of 1952 and 78 of 1953 are against orders passed under Section 6 of the Act directing the reinstatement of tenants; W. P. No. 875 of 1952 in against refusal to pass an order in ejectment under Section 10 of the Act; W. P. No. 788 of 1952 is against an order awarding compensation under Section 12(4) of the Act; and W. P. Nos. 880 of 1952 and 6 of 1953 are against orders adjudicating disputes between landlords and tenants under Section 13 of the Act.
Apart from disputing the correctness of the orders on their merits, the petitioners raise the contention that some at least pf the provisions of the Act are repugnant to Articles 19(1)(f), 31(2) and 14 of the Constitution and therefore, void under Article 13. We heard in the first instance arguments of counsel on the constitutional issue relating to the validity of the legislation, reserving considerations of the other questions for a further hearing and we now proceed to express our opinion thereon.
2. For a proper understanding of the provisions of the Act it will be useful to state the facts which form the background for this legislation. The District of Tanjore forms part of the Cauveri delta and is the richest rice-producing region in the State of Madras, being popularly and aptly known as the "granary of South India". The area normally cultivated with paddy is 13,40,180 acres and the paddy produced is roughly 8,65,200 tons, being about an eighth of the entire paddy produced in the State. The usual modes of cultivation adopted in the district are, (1) lease lands by the owners to lessees who arrange for cultivation by tenants, (2) varam sharing and (3) personal cultivation with the aid of agricultural labourers called Pannaiyals. While in other districts, agricultural labourers form a floating population from which the land owners are free to employ whom they choose, in the District of Tanjore the Pannaiyals were as a matter of custom and usage attached from generation to generation to particular holdings so that when heirs succeeded to those holdings or transferees acquired them, they would engage only those Pannaiyals for carrying on the cultivation. Thus, they came to be regarded as in the nature of appurtenances to the land.
It further appears that what the tenants in the District of Tanjore were gelling by way of share of produce and the Pannaiyals for wages when thev worked on the fields, were comparatively less than what the cultivating tenants and agricultural labourers were getting for the same work in other districts. There is no need to discuss whether this difference was due to the fact that owing to natural advantages which the delta lands derived from the rich alluvial deposits of the Cauveri the tenants and labourecs of Tanjore had less of work and more of produce than the labourers in other districts. The fact remains that there was disparity in the matter of returns and wages between tenants in Tanjore district and tenants in other districts and it was this disparity that became a fruitful source of discontent and disaffection. The cultivating tenants and Pannaiyals began to smart under the notion that they had not a proper deal and became gradually estranged from the landlord Then came the second World War and the soaring prices that followed in its wake were the last straw that broke the good relationship that existed between landlords and tenants.
3. What followed thereon is thus stated in the counter-affidavit filed on behalf of the State :
"While the cultivators pressed for an equitable revision of, terms, the mirasdars were unwilling to concede their demands preferring the drastic measure of a complete change in the body of farm employees. The mirasdars Started to evict pannaiyals who had been attached to their farms for generations and imported labour from neighbouring districts. These measures inevitably led to clashes, fall in production out of fear of riots and inefficient out-turn because imported labour was not so experienced as the local pannaiyals."
5. On 28-10-1948 an agreement which came to be known as the Mayuram agreement, was effected under which the daily wages of a man was raised to one marakkal and of a woman to 3/4 of a marakkal. This agreement also gave the pannaiyal 1/7 of the gross produce of the land he tilled. But the Mayuram agreement failed to provide adequate safeguards to ensure the working ol the pact and breaches in the agreement were reported such as forced evictions, clashes, conversion of employees into casual labour and consequent estrangement between the mirasdars and the pannaiyals."
As things were heading for a crisis, the, Government issued G. O. No. 1376 dated 9-3-1950 setting up a Committee presided over by Mr. M.V. Subramaniam, I. C. S. to report on land reforms to be effected.
After making extensive enquiries into the matter, the Committee made a report recommending 'inter alia' that where there were first class irrigation sources the landlord's share of rent should be 45 and that of the tenant 55, vide para 167; that the tenants should be granted a lease for a period of five years as that would give sufficient time to them to make up for the losses during bad and indifferent seasons, vide para' 181; that the lease should be renewable only if both the parties agreed thereto, vide para 188, and that during the period of the lease the tenants should be liable to be evicted only on the grounds specified in para 190 which are substantially reproduced in Section 10 of the Act.
The report was published on 1-7-1951 and the immediate conseouence thereof was a sharp conflict between the landlords and tenants. The tenants all over the district started an agitation that the recommendations contained in the Subramaniam report should immediately be given effect to. On the other hand, the landlords who were deeply dissatisfied with the proposals contained therein decided to stop the tenants and start personal cultivation with hired labour imported from Ramnad and other outlying districts. The tenants and pannaiyals who were thus frustrated in their attempts at getting better terms took to violence as a means of achieving their ends. There were widespread disorders resulting in theft, arson and murder and proceedings had to be taken under the provisions of the Criminal Procedure Code for maintaining order and ensuring security of life and property. It was during this state of emergency that the Government Promulgated on 23-8-1952 Ordinance No. 4 of 1952.
The preamble to the Ordinance states that the relations between landowners on the one hand and tenants and labourers on the other had become strained, that there were displacements of tenants and dismissal of farm labourers resulting in agrarian crimes and disturbances that the situation threatened to cause deterioration jn agricultural production and that it was necessary to take immediate action in regard to the matter. Then followed the provisions which will be examined presently. This ordinance after having undergone modifications and alterations under Ordinances Nos. 5 'and' 6 of 1952 was eventually replaced by an Act of the Madras Legislature called the Tanjore Tenants and Pannaiyals Protection Act, 14 of 1952, hereinafter referred to as the Act.
4. It will be convenient at this stage to examine the general scheme of the Act and the provisions therein which have come in for attack. The Act regulates rights of 3 classes of persons. At the one end is the owner of the land including in that term any person who holds under derivative title from the owner entitling him to collect rent such as usufructuary mortgagee and lessee, vide Section 2(g). At the other end is the cultivating tenant who
"contributes his own physical labour or that of the members of his family in the cultivation of any land belonging to another"
as a tenant and mere intermediaries are not comprised in this class, vide Section 2(d). A third category is the class of person who are called Pannaiyals.
A Pannaiyal is defined as
"any person engaged by the landowner or by the cultivating tenant to look after a farm and do all cultivation work on the land whenever necessary in the course of an agricultural year" (Section 2(i)).
In other words, they are agricultural labourers who will be engaged either by the owner who resorts to personal cultivation or by the cultivating tenants when they require additional hands for carrying on agricultural operations. The definition of "Pannaiyal" excludes casual labourer.
When the provisions of the Act are analysed with this classification in mind, it will be found that they fall into two groups: firstly those that confer new rights on cultivating tenants and pannaiyals, Sections 6 and 12; and secondly those that prescribe the terms of tenancy between the landlord and tenant and the rent payable by the latter, Sections 7 and 8; and the wages payable to Pannaiyals, Section 11. The other provisions in the Act are in the main procedural in character. The validity of the second group of provisions denning the terms of the tenancy and fixing the rents payable by tenants and wages payable to pannaiyals is not now under challenge. The entire controversy relates only to the validity of Sections 6 and 12 which conferred new rights on cultivating tenants and pannaiyals.
5. Taking up first Section 6 of the Act, its substance may be stated in two propositions: (1) AH cultivating tenants who were in possession on 1-12-1951 are entitled to continue in possession as such tenants for a period of five years commencing from the agricultural year 1952-53 and if Such tenants had ceased to be in possession on the date of the Ordinance 23-8-1952, they are entitled to be reinstated in possession and to continue as tenants for a period of five years (Section 6 (1)), (2) Cultivating tenants who were in possession in the year 1950-51 but not on 1-12-1951 are also entitled to be reinstated into possession unless another tenant had been put in possession of the land on or before 1-12-1951 and such tenant had raised crop thereon before 23-8-1952; where a tenant is reinstated in possession under this proviso, he would also be entitled to continue as a tenant tor a period of five years.
6. Turning next to Section 12, it enacts that Pannaiyals dismissed on or after 1-3-1952 may be ordered to be taken back if the dismissal was not just and" proper, Section 12 (3) and that in case Such an order is not complied with, the landlord may be ordered to pay compensation, Section 12 (4).
7. Now the contention of the petitioners is that Sections 6 and 12 are unconstitutional and void on the following grounds: (1) They are in contravention of Article 19(1)(f) of the Constitution, for the reason that they infringe the right of a citizen to hold property; (2) that they are opposed to Article 31(2) of the Constitution as in substance they authorise the taking of possession without payment of compensation and that the taking is also not for a public purpose; (3) they are arbitrary and discriminatory and repugnant to Article 14; and (4) the impugned legislation does not fall under any of the entries set out in lists 2 and 3 in Sch. 7 and is therefore, 'ultra vires' of the powers of the State legislature. We shall deal with these contentions seriatim.
8. (1) Article 19(1)(f) enacts that "all citizens shall have the right to acquire, hold and dispose of property"; and "to hold property" in this Article has been interpreted as meaning "to enjoy property". The contention of the petitioners is that Sections 6 and 12 make a serious inroad into this right in two respects: (1) It is the right of every owner to cultivate his lands personally and reap the fruits thereof; and this is a valuable right. In providing that cultivating tenants who were on the land in 1950-51 shall be entitled to continue in possession for a period of five years as tenants, the owners are deprived of their right to resume personal cultivation during this period. (2) It is the right of every owner to let the lands to such tenants as he pleased. But the effect of Section 6 is that the owners have no choice in the matter, but must let the lands only to the tenants who were in possession in 1950-51 or on 1-12-1951.
9. It is contended that where no question of occupancy right is involved, tenancy is a matter of contract and that it is beyond the province of a legislature to force an unwanted tenant on an unwilling landlord; and it would likewise be beyond its powers to compel any person to take another as his servant. What right, it is asked, has the Legislature to dictate that a person shall enter into a contract with A or engage as his servant B?
The following passage in -- 'Savings and Loan Assoc. v. Topeka', (1875) 87 US 655: 22 Law Ed. 455 at p. 461 (A) was relied on as forcibly bringing out the above contention. Miller J. observed:
"The theory of our Governments, State and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative and the judicial branches of, these governments are all of limited and defined powers. There are limitations on such, power which grow out of the essential nature of all free governments, implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No Court, for instance, would hesitate to declare void a statute which enacted that A and B who were husband and wife to each Other should be so no longer, but that should thereafter be the husband of C, and B the wife of D, or which should enact that the homestead now owned by A should no longer be his, but should henceforth be the property of B."
That Section 6 of the Act is a serious interference with the rights of an owner has not been disputed. The only question for consideration is whether it can be upheld under Article 19(5) as a reasonable restriction imposed in the interests of the general public. Mr. K.V. Venkatasubramania Iyer for the petitioners argues that even if there was some need for a legislation of this character, the provisions contained in Section 6 of the Act go far beyond the requirements of the situation and cannot therefore be held to be reasonable. He relied on certain observations in -- 'Lawton v. Steele', (1893) 38 Law Ed. 385 at pp. 388-389 (B), defining the nature and the limitations on the police powers of the State, as affording assistance in the interpretation of Article 19(5)
Therein Brown J. observed:
"The extent and limits of what is known as the police power have been a fruitful subject of discussion in the appellate Courts of nearly every state in the Union. It is universally conceded to include everything essential to the public safety, health and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance..... To justify the state in thus interposing its authority on behalf of the public it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations."
In -- 'Washington Ex. Rel Seattle Title Trust Co. v. Roberge', (1928) 73 Law Ed 210 at p 213 (C), Butler J. observed:
"Legislatures may not under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities."
In -- 'Chintaman Rao v. State of Madhya Pradesh',
(D), Mahajan J. observed:
"The phrase 'reasonable restriction' connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature is beyond what is required in the interests of the public...... Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness."
On this reasoning, it was contended for the petitioners firstly that even assuming that the tenants and pannaiyals in the Tanjore district had not a fair deal, that was a matter for simple tenancy legislation such as was contained in Sections 7, 8 and 11 and that there was no need to proceed further and confer rights on them as under Sections 6 and 12; secondly that even if there was some justification for conferring some benefits on tenants who had been associated with the holding for generations, the Legislature went far beyond this purpose in enacting that all persons who were in possession in 1950-51 or on 1-12-1951 should have rights of tenancy for a period of five years irrespective of whether their possession was recent or ancient, and that lastly that the provision for reinstatement of all the tenants who had been in possession at the material periods was unreasonably wide because even though there might be some justice in restoring possession to tenants, who had been obliged to quit owing to the unfair practice of the landlord, there was no reason to confer that benefit on tenants who had themselves thrown up the lease and gone elsewhere or had been dismissed for misconduct.
Thus, it is argued, Sections 6 and 12 go far beyond the requirements of the situation and must, therefore, be held to be unreasonable. It is further contended that these provisions are not in the interests of the general public and therefore, outside Article 19(5). How does it concern the public whether the servant of A is B or C and whether the tenant of D is X or Y? It is of Interest only to the persons concerned in the transaction. But what is required under Article 19(5) is that it should be a matter in which the public should generally be interested. Therefore, it is argued, Sections 6 and 12 are not within the saving provision of Article 19(5).
10. These contentions are of great weight and if the impugned provisions had been enacted under normal conditions and as part of a permanent legislation, we should have had no difficulty in holding that they substantially interfere with fundamental rights and are unreasonable in character. For3 what reason can there be in depriving an owner of his right to cultivate his own lands and what justice in forcing on him a tenant who has been hostile to him and whom he does not want? And how are the interests of the general public served by a legislation whose object is merely to confer rights on A as against B? The only question for determination, therefore, is whether there is sufficient justification for these provisions on the ground that it is an emergency legislation of a temporary character. It has been already seen that ever since the days of the Mayuram agreement dated 28-10-1948 the gulf between the landlords and the tenants had been steadily widening and that after the publication of the Subramaniam committee report on 1-7-1951 there was a sharp deterioration in the relations on the one hand the landlords were resorting to personal cultivation, thus displacing the tenants and importing foreign labour thereby throwing out of employment the pannaiyals. The tenants, on the other hand, were resorting to violence and there was widespread disorder attended with crimes. This resulted in a fall in the production of paddy and the life of the nation was being thereby imperilled. There thus arose a need for prompt governmental action and as the Legislature was not in session, recourse had to be had to the exercise of the power under Article 213 of the Constitution and Ordinance 4 of 1952 came to be promulgated. The preamble to the Ordinance recites the facts constituting the emergency which necessitated this legislation. Regarding the weight to be attached to such legislative declarations. Holmes J. observed as follows in -- 'Block v. Hirch', (1921) 65 Law Ed 865 at p. 870 (E):
"No doubt it is true that a legislative declaration of facts that are material only as the ground for enacting a rule of law, for instance, that a certain use is a public one, may not be held conclusive by the Courts. But a declaration by a legislature concerning public conditions that, by necessity and duty) it must know, is entitled at least to great respect..... That the emergency declared by the statute did exist must be assumed, and the question is whether Congress was incompetent to meet it in the way in which it has been met by most of the civilised countries of the world."
The affidavits filed in these petitions also amply establish the seriousness of the general situation. For instance, in para. 4 of the affidavit of the petitioner in W. P. No. 78 of 1953 it is stated that one of the respondents and his brother had been convicted by the criminal courts for unlawful cutting of the trees. Thus, it is amply established that a state of emergency had arisen and strong measures had to be taken for meeting the same. In judging of the reasonableness of the impugned provisions, it is necessary that this aspect should be borne in mind.
11. It was vehemently argued by Mr. K.V. Venkatasubramania Iyer that in seeking to evict tenants and engaging new labourers, the landlords did what they were entitled to do under the law; that mere lawlessness on the part of the tenants and pannaiyals were no ground for depriving the owners of their undoubted rights and that in legalizing the invasion of their rights by the tenants and pannaiyals, the impugned legislation favoured very much of appeasement of the forces of disorder and should therefore be held to be unreasonable. It these were all the material factors to be considered, this argument would be unanswerable.
It is clearly the duty of the State in exercise of its police power to enforce law and order and if instead of doing that, it surrenders to force and seeks to make a law of it, it would clearly be no law and must without hesitation be struck down. But that, however, is not the complete or even correct picture. The tenants & pannaiyals had, it is true, most regrettably taken the law into their own hands and engaged in acts of violence and crime. But it should be said in mitigation of their conduct that there was justice in their demands for revision of the terms of the tenancy and of the rates of wages. If as already pointed out, their share of the produce and their wages were less than those prevailing in the surrounding districts, they had a real grievance in the matter. From the days of the Mayuram agreement they had been agitating for an improvement in their conditions without success and after the publication of Subramaniam Committee's report on 1-7-1951 there had been mass eviction of tenants and dismissals of pannaiyals and importation of foreign labour.
Therefore, while the tenants and pannaiyals were very much in the wrong in taking to the creed of violence and disorder, the fault, however, was not wholly on their side. This then, was the conflict which the Government and the legislature were called upon to reconcile; and Ordinance 4 of 1952 and Act 14 of 1952 present their solution to it.
Two principles underlie the provisions of the Ordinance and the Act. (1) The law should fix the terms of letting between the landlord and tenant, including the fair rent payable to the landlord. In this matter the Government generally adopted the findings of the Subramaniam Committee report and enacted Sections 7' and 8 in accordance therewith. The fair wage payable to the labourer should also be fixed by Statute. Section 11 deals with this subject. (2) The state of affairs which had existed prior to the publication of the Subramaniam Committee report on 1-7-1951 should be recognised. It has been seen that it was after the publication of this report that there was large scale eviction of cultivating tenants. The Legislature adopted the policy that what happened subsequent to-the publication of that report should be left out of account and the rights of the tenants as they stood at that time should be maintained. If they were in possession on 1-12-1951, that possession should be sustained and if they had lost it subsequently they should be reinstated and that the tenants who were in possession in 1950-51 should also have similar rights except as against cultivating tenants who had been put in possession before 1-12-1951 and had actually raised crops.
12. Now the question is, whether Sections 6 and 12 which embody these principles can be upheld under Article 19(5) as imposing reasonable restrictions. Numerous authorities were cited before us as illustrative of the principles on which legislation should be held to be reasonable or otherwise. But a question of this kind has in general to be decided not on abstract principles but on a consideration of the facts and circumstances which form the background of that legislation and therefore not much? assistance can be derived from decisions given on other statutes. There is considerable authority that the emergency character of a legislation is an important element in deciding on the reasonableness of its provisions.
In -- '(1921) 65 Law Ed 865 at pp. 871, 872 (E)' the facts were that during the shortage of house accommodation that followed World War No. 1 a law was enacted entitling the tenants to continue in possession even after the expiry of the lease, provided they paid rent such as may be fixed by a Commission. The question was whether this was not an interference with an owner's right to lease the property to a tenant of his own choice and on his own terms. It was held that the legislation, though it was an invasion of the rights of the owner, should be upheld as an emergency measure.
Holmes J. observed:
"The main point against the law is that tenants are allowed to remain in possession at the same rent that they have been paying unless modified by the commission established by the Act and that thus the use of the land and the right of the owner to do what he will with his own and to make what contracts he pleases are cut down. But if the public interest be established, the regulation of rates is one of the first forms in which it is asserted, and the validity of such regulation has been settled since -- 'Munn v. People at Illinois', (1877) 24 Law Ed 77 (F)..... Machinery is provided to secure to the landlord a reasonable rent..... The preference given to the tenant in possession is an almost necessary incident of the policy, and is traditional in English law. If the tenant remained subject to the landlord's power to evict, the attempt to limit the landlord's demands would fail."
In -- 'Brown Holding Co. v. Feldman', (1921) 65 Law Ed 877 at p. 888 (G), the question related to the validity of a similar New York housing legislation. The facts were that even before the enactment of the statute the lease with the previous tenant had expired and the landlord had entered into a contract of letting with a new tenant. It was held that even this circumstance did not affect the validity of the legislation. Holmes J. observed:
"In the present case more emphasis is laid down upon the impairment of the obligation of the contract of the lessees to surrender possession, and of the new lease, which was to have gone into effect upon October 1, last year. But contracts are made subject to this exercise of the power of the state when otherwise justified, as we have held this to be."
On the facts, this decision is very near the present one.
In -- 'Home Building & Loan Asso. v. Blaisdell', (1934) 78 Law Ed 413 (H) a statute of Minnesota gave relief to mortgagors by providing for postponement of sale of the hypotheca in certain events and on certain conditions mentioned therein. It was held that if the economic situation required it, such a legislation could be upheld as a measure of emergency.
In -- 'Dr. N.B. Khare v. State of Delhi', (I) where the question arose as to the validity of an externment order which was indefinite in its duration it was held that the fact that the Act itself under which it was made was of a temporary duration might be taken into account in pronouncing on the reasonableness of order.
In -- 'Balakrishnan v. State of Madras', (J) it was observed:
"In judging of the reasonableness of the prohibition it would be relevant to take into account that it is an emergency legislation of a temporary character."
13. We may now refer to the more important of the authorities relied on by the petitioners. In -- 'Railroad Retirement Board v. Alton R. Co.', (1935) 79 Law Ed 1468 at p. 1475 (K) the Congress passed a law establishing a compulsory system of pension for employees of carriers. One of its provisions was that all persons who had been in service within one year prior to the enactment of the statute should be eligible for pension, even, though they might not have been in employment on the date of the Act; and this right was not subject to any condition as to re-employment. In holding that it was unreasonable, Roberts J. observed:
"The Act makes eligible for pensions all who were in carrier service within one year prior to its passage, irrespective of any future re-employment. About 1,46,000 persons fall within this class, which, as found below, includes those who have been discharged for cause, who have been retired, who have resigned to take other gainful employment, who have been discharged because their positions were abolished, who were temporarily employed, or who left the service for other reasons. These persons were not in carrier service at the date of the Act, and it is certain thousands of them never again will be..... It is arbitrary in the last degree to place upon the carriers the burden of gratuities to thousands who have been unfaithful and for that cause have been separated from the service, or who have elected to pursue some other calling, or who have retired from the business, or have been for other reasons lawfully dismissed."
The material difference between that case and the present is that whereas there, ex-employees were granted benefits without any obligation on their part to work and without any conditions as to re-employment, here the ex-employees are to be re-employed and are to have reasonable remuneration, either as share of profits or wages only for work to be done.
In -- 'Lousville Joint Stock Land Bank v. Radford', (1935) 79 Law Ed 1593 (L) the question was as to the validity of a law which provided that a mortgage debt should become discharged if the mortgagor paid within five years the price of the hypotheca to the mortgagee, himself remaining in possession during. that period under conditions mentioned in the Act. It was held that the provision for the discharge of the mortgage on the terms contained in the Act was unconstitutional. This decision again is not in point.
Reliance was also placed on the decision in. -- 'Chastleton Corporation v. Sinclair', (19^4) 68 Law Ed 841 (M) where it was held that a house accommodation law of the district of Columbia was unconstitutional as unduly interfering with rights of property of citizens. But Holmes J. affirmed the correctness of the decision in -- '(1921) 65 Law Ed 865' (E), and: held that the principle of that decision did not apply as in fact the emergency had come to an end. This decision would be in point if the State of Madras should re-enact Act 14 of 1952,
14. Mr. K.V. Venkatasubramania Iyer argues even accepting that there was justification for the enactment of Section 6 as a whole, it must be held to be in excess of the requirements, in that it does not make any difference-between persons who had been long in possession and persons who got into possession only in 1950-51; and in that it confers a right of reinstatement not merely on persons who had been evicted, but also on those who had surrendered the lease; and that the section should therefore be held to be unreasonable as regards persons who got into possession only in 1950-51 and as regards persons who had surrendered the lease. But there can be no doubt that in the vast majority of cases the persons in possession would have had long association with the lands and that likewise, of the persons who had vacated the lands after 1-12-1951, a good number would have acted not out of their will; and it would be difficult in the state of emergency then existing to embark on an enquiry as to which of them acted voluntarily and which not.
In judging of the reasonableness of an enactment, it will be useful to bear two principles in mind. One is that when once it is found that the object of the legislation and the means adopted to secure it are both reasonable, it is no objection to its validity that it incidentally confers rights on persons who are not in themselves intended to be beneficiaries. And the other is that in deciding on the reasonableness of a statute which deals with several matters and enacts diverse provisions the correct approach is not to take each provision by itself, pound it into its component parts and subject them to meticulous criticism, but to consider the scheme of the Act in its entirety and the cumulative effects of the provisions as a whole. Vide -- 'Euclid v. Ambler Realty Co.', (1926) 71 Law Ed 303; 272 US 365 (N). On a consideration of the authorities, we hold that Sections 6 and 12 are, having regard to their character as an emergency legislation of a temporary nature, not unreasonable.
15. The next question is, are the restrictions in the interests of the general public? It is clear that the object of the legislation was not to benefit any particular individuals or any number of them. It is intended to benefit generally the cultivating tenants and farm labourers. In an agricultural country like India, the tenants and farm labourers form an important section of the public and therefore, a legislation intended to benefit them as a class must be held to be for the benefit of the general public. That was held by this Court in -- 'Rajah of Bobbili v. The State of Madras', (O). In -- 'Thambiran Pada-yachi v. The State of Madras', (P) a case under Article 31(2), this Court held that a public purpose does not cease to be such because it ultimately benefits iudividuals, and observed:
"It is not necessary that it should be available to the public as such. It might be in favour of individuals provided they are benefited not, as individuals but in furtherance of a scheme of public utility."
See also -- 'Gundachar v. State of Madras', (Q). This conclusion also accords with the American decisions which held that legislation relating to house accommodation control is a legitimate object for the exercise of the police power which of course can be invoked only for the general welfare of the public. Vide '(1893) 38 Law Ed 385' (B).
Counsel for the petitioners relied upon the decision in -- 'Thomoson v. Consolidated Gas Utilities Corporation', (1937) 81 Law Ed 510 (R) in support of their contention that the impugned legislation is not for the benefit of the general public. The Rail Road Commission of Texas issued an order imposing restrictions on the quantity of gas which can be produced by owners of wells. It was found that such restriction was not in the interests of the public and that its real "object was to prevent the Owners of wells who had entered into contracts for the supply of gas from producing the required quantity from their own wells, and to compel them to purchase it from other well owners who had no such contracts. It was held that entire object of the legislation was to compel one set of well owners to purchase from others and that therefore it was an unconstitutional interference with private rights. We are unable to see how the principle of this decision can apply to the facts of this case.
Reliance was also placed on a recent decision of the Supreme Court in -- 'Ram Prasad Narayan Saihi v. The State of Bihar', (S). There the facts were that the Court of Wards which was in management of the Bettish Estate granted on 18-11-1946 lease of lands in favour of the appellants. In June 1950 the legislative assembly of the State of Bihar passed an Act, Sathi Lands Restoration Act) which provided that two settlements made by the Court of Wards Act on 18-11-1946 including that in favour of the appellants were to become void and that the lessees should surrender possession. The Supreme Court held that the Act was in violation of Article 14, in that it singled out the appellants from hostile legislation and that it was therefore void. Here the Act deals with rights not of individuals but of a large section of the public, landlords and tenants. This decision, therefore, has no application. We accordingly hold that Sections 6 and 12 have been enacted in the interests of the public as required by Article 19(5).
16. It is next urged on behalf of the petitioners that even taking the view that Section 6 is reasonable and in the interests of the general public, the provision contained therein that persons who were not in possession on the date of the legislation should be reinstated cannot be said to be a mere restriction, on the rights of the owner as contemplated by Article 19(5) and is not therefore saved by it. The contention is that a restriction can by its very nature be only negative in character and not positive, that it can only take away some of the rights of the person against whom it is directed, that it cannot vest those rights in other persons, and that its operation can be destructive but not creative. I the law enacts that A shall not mortgage or sell his house, it is a restriction on his rights as owner. But if it provides that A shall mortgage or sell his house to B, it is much more than a restriction of A's right; it confers positive rights on B. It was accordingly argued that Section 6 in so far as it prevents the landlords from evicting tenants who were in possession on the material dates can be regarded as a restriction falling within the scope of Article 19(5), but not when it enacts that persons who were not in possession at the date of the Act should be reinstated.
Support for this argument was sought in the nature and limitations of the police power under American law. It was argued that the exercise of the police power was limited to legislation of a preventive and regulatory character, that a law conferring positive rights would be outside the ambit of that power, that the Indian Constitution has, in Article 19(5), adopted the principles of the police power in American jurisprudence and that a statute conferring positive rights on other persons would be void under Article 19(5), as under the American law.
The following passage in Willis on Constitutional Law at page 716 was referred to as showing the true nature of the police power:
"The police power is the legal capacity of sovereignty, or one of its governmental agents, to delimit the personal liberty of persons by means which bear a substantial relation to the end to be accomplished for the protection of those social interests which reasonably need protection."
Considerable reliance was also placed on the following observations of McReynolds J. in --'Panhandle Pipe Line Co. v. State Highway Co.', (1935) 79 Law Ed 1090 at p. 1097 (T), as to the limitations on the police power:
"The police power of a State, while not susceptible of definition with circumstantial precision, must be exercised within 9 limited ambit and is Subordinate to constitutional limitations. It springs from the obligation of the State to protect its citizens & provide for the safety and good order of society. Under it there is no unrestricted authority to accomplish whatever the public may presently desire. It is the governmental power of self-protection and permits reasonable regulation of rights and property in particulars essential to the preservation of the community from injury."
As appears from the above quotation, the limits of the police power in American law have never been precisely defined. It has varied from time to time. It was, to begin with, a power intended to be exercised for protection of life and property and was strictly a police power. Then it came to be regarded as the power to enact all laws calculated to promote public welfare, prosperity and convenience; and legislation of an ameliorative and not merely of a protective character also came to be up held as legitimately within the area of the police power. Laws falling under this head were of a varied character; they included Zoning regulations, licensing laws, regulations with reference to articles of consumption including power to destroy unwholesome things in the interests of public health and safety and the like.
These laws whether preventive or ameliorative operated either to restrict the rights of owners on the maxim 'sic utere tuo ut alienum non laedas' or authorised destruction of articles which were injurious to public health and safety. They did not confer positive rights on other persons. The next stage in the evolution of the law relating to police power was reached when questions arose as to whether legislation could be enacted in public interests, fixing prices of goods or regulating terms of employment. At first the view was taken that such legislation would interfere with freedom of contract and would be outside the scope of the police power.
In -- 'Lochner v. New York', (1905) 40 Law Ed 937 (U) the question arose about the validity of a New York Statute fixing the hours of work in a bakery. It was held by the Supreme Court that the legislation was beyond the scope of the police power and void.
In -- 'Adkins v. Children's Hospital', (1923) 67 Law Ed 785 (V) it was held that a law fixing minimum wage amounted to a denial of the due process of law and not within the police power of the State. The tide, however, changed after 1934.
In -- 'Nebbia v. New York', (1934) 78 Law Ed 940 (W) a New York legislation fixing the prices in the milk trade was held to be within the police power. In -- 'West Coast Hotel Co. v. Parrish', (1937) 81 Law Ed 703 (X) the question was as to the validity of a law of Washington fixing minimum wages. The Court overruled the decision in (1923) 67 Law Ed 785 (V) and held that the legislation was valid.
In -- Lincoln Federal Labour Union v. North Western Iron & Metal Co.', (1949) 93 Law Ed 212 at p. 221 (Y) the question related to the validity of laws enacted by the States of North Carolina and Nebraska regulating the terms of labour employment. In affirming the validity of these laws, Black J. observed :
"This Court beginning at least as early as _ 1934, when the Nebbia case was decided has steadily rejected the due process philosophy enunciated in the Adair Coppage line of cases. In doing so it has consciously returned closer and closer to the earlier constitutional principle that States have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition or of Some valid federal law. Under this constitutional doctrine the due process clause is no longer to be so broadly construed that the Congress and State legislatures are put in a strait jacket when they attempt to suppress business and industrial conditions which they regard as offensive to the public welfare."
17. If in exercise of the police power the State can fix minimum wages, maximum hours of work and the like, it is not possible to contend that that power is purely negative in character. Prices of commodities, wages and hours of work are matters of contract and any legislation affecting them must be bilateral in character. Thus, a law which requires an employer to pay a minimum wage is so far as he is concerned a restriction in his * right to fix wages and so far as the employee is concerned the conferment of a right to minimum wages. Such a law cannot be said to be purely preventive in its operation. Reference may in this connection be made to labour laws which provide not merely for minimum wages for labourers but also for their reinstatement in cases of improper dismissal. These are clearly positive in character. It is therefore not possible to accept the contention of the petitioners that the legislation in exercise of the police powers in America cannot operate to confer rights.
18. Moreover, it is not quite accurate to speak of preventive and ameliorative legislation as not involving the recognition of rights in third persons. Indeed if the police power can be exercised only for the advancement of public welfare, every valid legislation made in exercise of that power must result in the conferment of benefits on the public. And on this principle, if a regulation of contracts can be held to fall within the police power as being for the welfare of the general public, the fact that positive rights are conferred on the employees cannot detract from its validity. In other words, the question is not whether rights are conferred on A or B, but whether he is benefited as a result of a scheme which is in the interests of the public. We may refer in this connection to the following observations of a learned American Jurist bearing on this question :
"In the last analysis nearly every law transfers something from A to B. It matters not whether this advantage be tangible or fancied, large or small. Somebody gains, somebody loses, for you cannot create something out of nothing, you cannot create an advantage out of a vacuum. This makes the whole question one of degree, and there is no principle, no fundamental right, in a matter of degree."
(Vide Mr. Luce quoted in Strong on American Constitutional Law at page 576). Thus, the American law does not seem in its present phase to differ from the law as enacted in Article 19(5).
19. It was argued by the learned Advocate General that the real test for determining the validity of legislation under Article 19(5) is to find out whether it is remedial and corrective. He relied on the principles enunciated in the -- 'Civil Rights Cases', (1883) 27 Law Ed 835 at pp. 839 and 841-842 (Z). There, the question was about the validity of certain laws enacted by the Congress providing for enjoyment by persons belonging to the coloured races of rights of accommodation in hotels, theatres and railways. This legislation was in exercise of the powers conferred by Section 5 of the 14th Amendment which provided that the Congress shall have the power to enforce by appropriate legislation the other provisions contained in that Amendment. The 14th Amendment, it should be remembered, conferred rights of citizenship on all persons born in the United States and prohibited the States from making any laws abridging those rights or depriving them of liberty, of life or property without due process of law or denying equal protection of laws to any person. The substantive provisions of that Amendment were thus a limitation on the legislative power of the State; and the authority of the Congress to legislate under Section 5 of the 14th Amendment was only to enact laws for the enforcement of the positive prohibitions contained in that Amendment. In interpreting the scope of Section 5, Bradley J. observed :
"The last section of the Amendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited state laws and state Acts, and thus to render them effectually null, void and innocuous. This is the legislative power conferred upon Congress, and this is the whole of it ...... Positive rights and privileges are undoubtedly secured by the 14th Amendment; but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; and such legislation must, necessarily, be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect ...... Of course, these remarks do not apply to those cases in which Congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the State's ...... In these cases. Congress has power to pass laws for regulating the subjects specified in every detail, and the conduct and transactions of individuals in respect thereof. But where a subject is not submitted to the general legislative power of Congress but is only submitted thereto for the purpose of rendering effective some prohibition against particular State legislation or State action in reference to that subject, the power given is limited by its object, and any legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited Stale laws or proceedings of state officers."
Adapting these observations to the Indian Constitution, it was argued that Articles 245 and 246 conferred on the legislatures plenary powers of legislation in respect of matters set out in Schedule 7 and that those powers were wide and unrestricted, subject only to the limitations contained in the Constitution; that the restriction on those powers enacted in Article 19 were analogous to the prohibitions contained in the 14th Amendment; that with reference to the class of legislation which is contemplated by Article 19(5) the principles laid down in (1883) 27 Law Ed 835 (Z) as to the scope of Congress legislation under Section 5 of the 14th Amendment might be followed; and that the power confer red thereunder to enact laws in abridgment of fundamental rights was self-contained and ex tended to all laws which are remedial, provided they were reasonable and in the interests of the public.
20. It appears to us that the question is one which has to be determined solely on a construction of the relevant provisions of the Constitution and that there is no need to discuss at any length the American Law on the subject. If what would otherwise be an invasion of the rights of a citizen under Article 19(1)(f) is reasonable and in the interests of the public, then all the requirements of Article 19(5) are satisfied. It is not permissible to read into it a further restriction based on a scholastic interpretation of the meaning of the word "restriction" that the legislation should be negative in character. In the result, we hold that the contention that Sections 6 and 12 are in contravention of Article 19(1)(f) must be rejected.
21. (2) The second ground urged in support of the petitions is that the Act deprives owners of possession of their lands without payment of compensation and is therefore unconstitutional. This contention is based on Article 31(2) which is as follows:
"No property, moveable or immoveable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given."
It is contended that under Section 6 the possession of the lands had been taken away from the Mirasdars and transferred to the tenants for a period of five years, that the provision in the Act that the tenant should pay rent and that too a reduced rent -- is not a compensation for taking possession and that there has thus been a violation of Article 31(2).
Mr. K.V. Venkatasubramania Iyer argued that the provision in Article 31(2) that no property shall be taken for a public purpose unless the law provides (or compensation did not authorise the taking of property for a private purpose without payment of compensation and that the true meaning of the Article is that property could be taken only if it is for a public purpose and then too on payment of compensation. We have no hesitation in agreeing with this construction of the provision. But, what follows? Has there been a taking in violation of Article 31(2)?
22. There was some argument before us as to whether there has been any taking of possession such as is contemplated by Article 31(2). The contention of the Advocate General was that the Article applied only when ownership was acquired or possession taken under a title which was in derogation of that of the owner and adverse to it and not when it is a derivative title based on a recognition of ownership or possession of the owner. It is not necessary to go into Ihis question, as the contention of the petitioners must fall on the ground that there has been no taking of possession by the State. Article 31(2) prohibits acquisition of title or taking of possession for a public purpose without payment of compensation. But acquisition or taking of possession by whom, it does not mention. A reference to the relevant provisions of the Constitution clearly shows that it was only acquisition of title or taking of possession by the State that is dealt with in Article 31(2). It may be mentioned that Section 299 (2), the corresponding provision in the Government of India Act, 1935) provided only for the acquisition of ownership and it was accordingly held in -- 'Tan Bug Taim v. Collector of Bombay', AIR 1946 Bom 216 (Zl) that requisition of property by the State was not within that section. The legislature then intervened and enacted a law authorising the requisition of properties by the Government.
Article 31(2) of the Constitution provides for both acquisition of ownership and of possession. The power of the Legislatures to pass laws for the acquisition of either ownership or possession is contained in Entry 33 in List I, Entry 36 in List II and Entry 42 in List III. Entry 33 provides for the acquisition for the purpose of the Union; Entry 36 for State; and Entry 42 for the purpose of the Union or of a State or for other public purposes. The acquisition that is contemplated under Article 31(2) is only acquisition by the Union or by the State and this is fairly' conceded by Mr. K.V. Venkatasubramania Iyer. Any law which confers rights of ownership or possession on individuals, the State itself not acquiring it, is not within the operation of Article 31(2) and its validity must be determined only with reference to the terms of Article 19(1)(f) and Article 19(5).
23. It is next contended that even though Article 31(2) does not in terms apply to the taking of possession of lands from the mirasdars, nevertheless, the principle embodied in that Article that the property of a person shall be taken only on payment of compensation is applicable to all legislation which interferes with the rights of owners and if there is no provision for compensation for such interferences, it is unconstitutional.
Reliance was placed in support of this position on the American authorities in which it has been held that there is taking of property not only when title is acquired or possession taken but also when there is any diminution in the rights of an owner. Thus, in -- 'Richards v. Washington Terminal Co.', (1914) 58 Law Ed 1088 (Z2) where an owner of a land abutting on railway tracts complained against nuisance caused by smoke and gas emitted by the locomotives, it was held that there was unlawful taking of property.
In -- "Portsmouth Harbour L. & H. Co. v. United States', (1922) 67. Law Ed 287 (Z3) the proprietors of a hotel in a sea-side resort complained that by "constant gun practice customers were scared away resulting in depreciation of the business and this was held to be unlawful taking.
In -- 'Pennsylvania Coal Co. v. Mahon', (1922) 67 Law Ed 322 (Z4) a law restraining the owners from excavating mines was held to be an unlawful interference with their rights and amounted to taking.
In -- 'United States v. Causby', (1946) 90 Law Ed 1206 (Z5), where the owner of a chicken farm complained that by reason of the incessant flights of aeroplanes it became impossible to enjoy the lands and that that resulted in a diminution of the value, it was held that if the, flights were frequent and low, that might amount to acquisition of an easement and that would be taking for which the owner will be entitled to compensation.
In -- 'United States v. Kansas City Life Insurance Co.', (1950) 94 Law Ed 1277 (Z6) a dam across the Mississipi was found to have caused damage to adjoining agricultural lands. It was held that this amounted to taking of property for which the owner was entitled to compensation.
It will be seen that none of these cases would fall under Article 31(2), because there was no transfer of title or possession from the owner to the State. But in America the word "taking" is used not merely in cases where there is a transfer of title or possession, but also where there is diminution of the value of the property as a result of the law. The authorities have held that in Such cases also the due process clause is violated, unless there is payment of compensation. That, however, is not the law in India.
In (O) this Court has held that Article 31(2) will not apply, unless there is a transfer of title or possession from the owner to the State and that in this respect the law under the Constitution is different from that in America. Therefore, the diminution of the rights of mirasdars by operation of the Act will not amount to "taking" within the meaning of Article 31(2). That is not disputed by Mr. K.V. Venkatasubramania Iyer. But he contends that the principle that property should not be taken without compensation is one that has been adopted in Article 31(2) and that it should therefore be applied even in cases not strictly falling within its purview. He also cited a number of American authorities wherein it had been held that the police power of a State could not be exercised so as to defeat constitutional limitations -- 'Dobbins v. Los Angles', (1904) 49 Law Ed 169 (Z7); -- 'Eubank v. Richmond', (1912) 57 Law Ed 156 (Z8); --'Atchison, T. & S. F. R. Co. v. Vosburg', (1915) 59 Law Ed 1199 (Z9) and -- 'Buchanan v. Warley', (1917) 62 Law Ed 149 (Z10).
Pursuing this argument, he contended that as Section 6 results in the taking of property without compensation and thereby violates the principle recognised in Article 31(2), it should be held not to be a proper exercise of the police power which is embodied in Article 19(5). We are unable to accept this contention. If Section 6 is to be held to be void, it must be because it is hit by some constitutional prohibition. The only two provisions relied on as enacting that prohibition are Article 19(l)(f) and Article 31(2) and if the section in question does not contravene any of those articles, then there is no provision under which it can be declared to be void. There is no principle on which a law could be struck clown as void by reason of some principle to be gathered generally from the enactment but not actually to be found in the provisions by which its validity has to be determined. Apart from Article 19(1)(f) and Article 31(2), there is no 'tertium paid or Thrithiyah Pantah' as of Murari on which it could be overthrown. This contention must accordingly be rejected.
24. 3. It is (sic) next contended that Sections 6 and 12 are opposed to Article 14 of the Constitution, in that they are arbitrary and therefore discriminating. But we have held that the impugned provisions are as a whole reasonable and on that finding, this contention must fail. Mr. R. Gopalaswami Aiyangar for the petitioner in W. P. No. 788 of 1952 argued that the provisions of Section 12 were particularly arbitrary because (1) it artificially conferred rights on pannaiyals who had been dismissed on or after 1-3-1952, there being no rational explanation for fixing that date; (2) the Ordinance which was promulgated on 23-8-1952 gave retrospective operation to this right; (3) Section 12(3) conferred wide powers on the Conciliation Officer to set aside orders dismissing pannaiyals; and (4) Section 3(b) granted an exemption in favour of some landlords thereby discriminating against the rest.
There is no force in these contentions. The harvesting would normally be over by the end of February and the date 1-3-1952 was obviously chosen on the principle that the rights of the pannaiyals should be maintained as during the previous agricultural season. The provisions in Section 12(3) conferred power on the Conciliation Officer to sustain dismissals if there were proper grounds therefor and cannot therefore be characterised as unreasonable. The exemption granted under Section 3(b) is only in favour of small landholders and that is quite understandable. Such exemptions have been held as not denying equal protection of the law under the American Constitution. Vide --'Garmichael v. Southern Coal & Coke Co.' (1937) 81 Law Ed 1245 (Z11). It will be seen that the difference in the treatment of either pannaiyals Or landlords under Section 12 is based on classification which has a reasonable relation to the objects of the legislation. It is therefore not open to objection under Article 14.
25. (4) Lastly it was argued that the enactment in question is not within the legislative competence of the State as it cannot be brought under any of the entries in List II or III. En try 18 in List II is as follows:
"Land, that is to say, rights in or over land, land tenures including the relation of land lord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization."
This is clearly a tenancy legislation and would be directly covered by the Entry. It was argu ed that Section 6 in so far as it provides that per sons whose tenancy had come to an end should have rights as tenant is not a law relating to landlord and tenant because that relationship had ceased at the date of the Act and that this would a fortiori be so, where the tenant had even thrown up the tenancy and vacated the holding.
But that is to take too narrow a view of the Entry. It has been repeatedly held that the provisions of the Constitution should be construed not in a narrow or pedantic sense but as extending to all ancillary or subsidiary matters which could fairly and reasonably be said: to be comprehended in it. Vide -- 'United Provinces v. Mt. Atiqa Begum', AIR 1941' FC 16 at p. 25 (Z12). Tenants continuing in possession after the termination of the lease are termed tenants at will and with reference to them the legislation falls within the terms of Entry 18 even strictly construed. Even as regards tenants who had vacated, the right to reinstatement will be ancillary or a subsidiary matter arising out of tenancy and would be within the terms of the Entry, liberally interpreted. In any event, that will be legislation relating to land. We must accordingly hold that Act 14 of 1952 is within the powers of the State Legislature under Entry 18 of List II.'
26. In this view, the constitutional issue relating to the validity of the Legislation must be found against the petitioners. The petitions will be posted for hearing on the merits in due course.