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Mohindar Singh and anr. Vs. Balak Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberWrit/Civil Petn. No. 2 of 1961
Judge
Reported inAIR1963HP28
ActsTenancy Law; ;Himachal Pradesh Tenants (Rights and Restoration) Act, 1952 - Sections 3 and 6E; ;Himachal Pradesh Tenants (Rights and Restoration) (Amendment) Act, 1954; ;Constitution of India - Articles 19, 31, 31A and 31A(1)
AppellantMohindar Singh and anr.
RespondentBalak Ram and anr.
Advocates: M.L. Aukta, Adv.
DispositionPetition dismissed
Cases ReferredKavalappara Kottarathil Kochuni v. States of Madras and Kerala
Excerpt:
constitution - jurisdiction - appellant owner of land - respondent tenant of aforesaid land - ejected from aforesaid land - filed application for restoration of aforesaid land to him - restoration allowed on condition that he reimburse certain amount for improvement made to land - on appeal by respondents financial commissioner did away with said amount - appeal - whether order made by financial commissioner was within its jurisdiction - order of collector was open to revision - order made by financial controller was within its jurisdiction. - .....petitioners that as the aforesaid act of 1952 did not provide for acquisition of any estate by the state, article 31a would not save the provisions thereof. the himachal pradesh tenants (rights and restoration) act, 1952, was passed by the himachal pradesh vidhan sabha on 25-10-1952. it was reserved for the consideration of the president and was assented to by him on 6-2-1953. the contention is that in sub-clause (a) the words 'the acquisition by the state' govern the words 'or the extinguishment or modification of any such rights'. the argument proceeds on misconception. the words 'or the extinguishment or modification of any such rights'' are not dependent upon or subordinate to the words 'the acquisition by the state of any estate or of any rights therein' and the words 'the.....
Judgment:
ORDER

C.B. Capoor, J.C.

1. This is a petition under Articles 226 and 227 of the Constitution of India.

2. The petitioners are owners of land measuring 198 bighas 7 biswas comprised in Khata No. 1/4 situate in village Talo, Hadbast No. 49, Tehsil Nahan, district Sirmur. Respondent No. 1, hereinafter to be referred as 'the respondent', was the tenant of the aforesaid land. A notice under Section 45 of the Punjab Tenancy Act, as applicable to Himachal Pradesh, was issued against the respondent and in pursuance of it he was ejected from the aforesaid land. An appeal preferred by him to the Collector did not succeed and he submitted an application in revision to the Financial Commissioner, but did not press it as in the meantime the Himachal Pradesh Tenants (Rights and Restoration) Act, 1952, came into force.

In accordance with Section 3 of the aforesaid Act, the respondent filed an application for restoration of the aforesaid land to him. The application was resisted by the petitioners on the grounds that they had incurred considerable expense on the improvement of the aforesaid land and in planting an orchard on a portion of it and that possession should not be restored to the respondent unless he reimbursed them for the improvement to the land and repaid the sum of Rs. 250/-. By an order dated the 24th July, 1954, the Assistant Collector, First Grade, Nahan, ordered restoration of possession of the aforesaid land on payment of a sum of Rs. 1,350/- on account of the improvement of the aforesaid land and of the sum of Rs. 250/-. The respondent preferred an appeal against the last mentioned order but the same was rejected. He thereafter filed an application in revision to the Financial Commissioner who, by his order dated the 26th October, 1960, set aside the order of the lower Courts requiring the respondent to pay to the petitioners the sums of Rs. 1,350/- and Rs. 250/-, and it is that order which is sought to be quashed by the present writ petition.

3. The points made out by the petitioners are that the aforesaid order was passed by the Financial Commissioner without jurisdiction and that Section 3 of the said Act of 1952 was in violation of Articles 19 and 31 of the Constitution of India.

4. The first question that arises for determination is as to whether the order sought to be impugned was without jurisdiction. It has been contended on behalf of the petitioners that the Himachal Pradesh Tenants (Rights and Restoration) Act, 1952, did not provide for the filing of an appeal or an application in revision against an order under Section 3 of the Act and as such the Financial Commissioner assumed jurisdiction which he did not possess in making the order sought to be challenged.

The point overlooked by the learned counsel is that the aforesaid Act of 1952 was amended in 1954 and by Section 4 of the Himachal Pradesh Tenants (Rights and Restoration) (Amendment) Act, 1954. Sections 6A to 6E were added whereby inter alia revisional powers were conferred upon the financial Commissioner. When the learned counsel was confronted with the aforesaid aspect of the matter, he contended that by virtue of Section 6E the Financial Commissioner had the power to call for the record of any case pending or disposed of by any Revenue Officer or Revenue Court subordinate to him but a Revenue Officer or a Revenue Court is not known to the Rights and Restoration Act, rattier an application under Section 3 lies to the prescribed authority. This contention is again barren of substance. The word 'prescribed' according to Section 2 (b) of the said Act means prescribed by rules made by the State Government under the Act and according to the Himachal Pradesh Tenants (Rights and Restoration) Rules, 1953, an application by a tenant for restoration of his holdings; has to be made to a Revenue Court not below the rank of an Assistant Collector of the First Grade having jurisdiction in that area. The aforesaid Act of 1954 received the assent of the President on the 19th June, 1954, and it was after that date that the order sought to be impugned was made.

It is thus manifest that the Assistant Collector, First Grade, Nahan, was competent to dispose of the application made by the respondent under Section 3, that an appeal lay against the order of the Assistant Collector, First Grade, and the order of the Collector was open to revision. The order in question made by the Financial Commissioner was, therefore, within his competence and jurisdiction.

5. The next question that crops up for decision is as to whether Section 3 of the aforesaid Act of 1952 was in conflict with Articles 19 and 31 of the Constitution of India. That section runs as follows :

'3. Restoration.--Notwithstanding anything contained in the Punjab Tenancy Act, as applied to the Himachal Pradesh, a tenant who has been ejected after the fifteenth day of August, 1950, shall on application made by him within two years of the commencement of this Act to the prescribed authority and on his satisfying such authority that the applicant was not at the time of ejectment a tenant to whom the provisions of Section 41 of the Punjab Tenancy Act as amended in its application to Himachal Pradesh by the Punjab Tenancy (Himachal Pradesh Amendment) Act, 1952, could have applied, be restored to possession of such land on the same terms and grounds on which it was held by him at the time of ejectment :

Provided that the maximum rent payable by him on re-occupation of the land shall be subject to the provision of Section 25A of the Punjab Tenancy Act, 1887, as amended in its application to Himachal Pradesh by the Punjab Tenancy (Himachal Pradesh Amendment) Act, 1952 :

Provided further, that if the land had been given to another tenant on or after the fifteenth day of August, 1950, he shall be ejected therefrom and given in lieu of it Nautor land as prescribed.'

6. It would thus appear that by the aforesaid section the rights of a landlord were modified and under Article 31A of the Constitution of India such a provision was immune from attack even if it be held to have taken away or abridged any of the rights conferred inter alia by Articles 19 and 31 provided the other conditions laid down therein were satisfied. The relevant portion of Article 31A of the Constitution of India runs as below :

'3iA. (i) Notwithstanding anything contained in Article 13, no law providing for-

(a) the acquisition by the State of any estate! or of any rights therein or the extinguishment or modification of any such rights,

(b) ...... ...... ......

(c) ...... ...... ......

(d) ...... ...... ......

(e) ...... ...... ......

shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14, Article 19 or Article 31 :

Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.'

7. It has been argued on behalf of the petitioners that as the aforesaid Act of 1952 did not provide for acquisition of any estate by the State, Article 31A would not save the provisions thereof. The Himachal Pradesh Tenants (Rights and Restoration) Act, 1952, was passed by the Himachal Pradesh Vidhan Sabha on 25-10-1952. It was reserved for the consideration of the President and was assented to by him on 6-2-1953. The contention is that in Sub-clause (a) the words 'the acquisition by the State' govern the words 'or the extinguishment or modification of any such rights'. The argument proceeds on misconception. The words 'or the extinguishment or modification of any such rights'' are not dependent upon or subordinate to the words 'the acquisition by the State of any estate or of any rights therein' and the words 'the acquisition by the State' do not modify the words 'or the extinguishment or modification of any such rights.' The construction which the learned counsel for the petitioners wanted to place on the aforesaid sub-clause is not sound according to the rules of grammar. So far as I am aware such a construction has not been placed in any of the reported cases of either the Supreme Court or of any High Court. On the other hand, there are cases in which laws which did not provide for the acquisition by the State of any estate or of any rights therein have been held to be immune from attack in view of the provisions of Article 31-A.

The Bombay Tenancy and Agricultural Lands (Amendment) Act (13 of 1956) did not provide for the acquisition by the State of any rights in the estate. Its validity and constitutionality was challenged in the case of Sri Ram Ram Narain Medhi v. State of Bombay, reported in AIR 1959 SC 459, but its provisions were held to be protected by virtue of Article 31A. In the course of their judgment it was held by their Lordships that an extinguishment or modification of any rights in 'estates' is a distinct concept altogether and cannot be in the process of acquisition by the State of any estate or of any rights therein and that the words 'extinguishment or modification of any such rights' must be understood in their plain grammatical sense and that it was not correct to say that the extinguishment or modification of any such rights should only be in the process of the acquisition by the State of any estate or of any rights therein.

The provisions of the Punjab Security of Land Tenure Act (10 of 1953) as amended by Act 11 of 1955 were also held to be protected under Article 31A vide Atma Ram v. State of Punjab reported in AIR 1959 SC 519. In the case of Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, reported in AIR 1960 SC 1080, reference was made to the Statement of the Objects and Reasons of the Constitution (Fourth Amendment) Act, 1955, and it was observed that the object underlying the introduction of Article 31A was to enable the State to implement its next objective in the land reform namely, the fixing of limits to the extent of agricultural lands that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of land owners and tenants in agricultural holdings and to bring about a change in the agricultural economy vide paragraph 15. In paragraph 17 it was further observed as below :

'This Court has, therefore, recognized that the amendments inserting Article 31A in the Constitution and subsequently amending it were to facilitate agrarian reforms'.

It would thus appear that even though a legislation may not provide for acquisition by the State, it will not be open to attack on account of any conflict with Articles 14, 19 or 31 provided it is covered by Article 31A.

8. It has not been contended, as indeed it could not be, that the Himachal Pradesh Tenants (Rights and Restoration) Act was not within the competence of the Legislature which passed it. Section 3 of the aforesaid Act is covered by Sub-clause (a) of Article 31A and even if the said provision is supposed to be in conflict with Article 19 or 31, it shall not be deemed to be void on the ground of any such conflict and is immune from attack.

9. The petition is devoid of merits and is notadmitted.


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