judgement:
section 176, 177 and 253 of 1956; 34, 35, 51 53, 69, 70, 75, 94 & 137 of 1957 ; 34, 58, 72, 90, 92, 106, 109 & 115 of 1958.
Petitions under Article 32 of the Constitution of India for.
enforcement of Fundamental rights.
C.B. Aggarwal and Naunit Lal, for the petitioner (In Petition No. 176 of 1956).
Achhru Ram and Naunit Lal, for the petitioner (In Petition No. 177 of 56).
Naunit Lal, for the petitioner (In Petitions Nos.
253/ 56; 34, 35, 51 53, 69, 70, 75, 94 and 137/57; 34, 58, 92, 106, 109 & 115/58).
750 Radhey Lal Aggarwal and A. G. Ratnaparkhi, for the petitioner (In Petition No. 90/58).
H. N. Sanyal, Additional Solicitor General of India, S.M. Sikri, Advocate General for the State of Punjab, Gopal Singh and T. M. Sen, for respondent No. 1 (In Petition No. 176/56).
S.M. Sikri, Advocate General for the State of Punjab, and T. M. Sen, for respondent No. 1 (In Petitions Nos. 177 & 253/56; 34, 35, 51 53, 69, 70, 75, 94 & 137/57; 34, 58, 72, 90, 92, 106, 109 & 115/58).
R.S. Gheba, for respondent No. 3 (In Petition No. 90/58).
Dipak Dutta Chowdhury, for respondent No. 3 (In Petition No. 176/56).
Udai Bhan Chowdhury, for respondent No. 7 (In Petition No. 59/57) and respondent No. 3 (In Petition No. 70/57).
Harnam Singh and Sadhu Singh, for the Interveners (In Petition No. 176/56).
December 8.
The Judgment of the Court was delivered by SINHA, J.
These petitions under article 32 of the Constitution impugn the constitutionality of the Punjab Security of Land Tenure Act (Punj.
X of 1953) (which will be referred to hereinafter as the Act), as amended by Act XI of 1955.
The petitioners are land owners of the lands affected by the provisions of the impugned Act.
The State of Punjab and its officers, besides persons claiming benefits under the Act, are the respondents in these several petitions.
The impugned Act has a history which may shortly be set out.
With a view to providing for the security of tenure to tenants, the Punjab Tenants (Security of Tenure) Ordinance IV of 1950, was promulgated with effect from May 13, 1950.
That Ordinance was replaced by the Punjab Tenants (Security of Tenure) Act XII of 1950, which came into force on November 6, 1950, on the date on which it was first published in the Punjab Government Gazette.
The Act prescribed a limit of one hundred standard acres of land (equivalent to two hundred ordinary acres) which could be 751 held by a land owner for his " self cultivation "; and it was termed" permissible limit " (section
2(3) ).
Any landowner having land in excess of the " permissible limit was authorized by section 3 to select for " self cultivation land out of the entire area held by him in the State of.
Punjab, as land owner, and reserve it for his own use to the extent of the " permissible limit ".
This " right of reservation " had to be exercised, first, in respect of land in his self cultivation; and if the extent of such land fell short of the " permissible limit ", he could, under section 4, make up the deficiency by ejecting tenants under him in respect of such lands as fell within his reserved area.
Section 5 fixed the minimum period of tenancy as four years, subject to certain exceptions set out in section 6.
These were some of the salient features of the Act of 1950, which itself was amended by the Punjab Tenants (Security of Tenure) Act (Punj.
V of 1951), which came into force on December 24, 1951.
By the amending Act, the " permissible limit " was reduced to 50 standard acres equivalent to 100 ordinary acres, and the minimum period of tenancy was raised to five years.
It also made provisions for preferential right of pre emption (section
12A), and conferred a right of purchase on the tenant in respect of land in his possession (section
12B), subject to certain exceptions(s. 12C).
Another legislation in this series was the Prevention of Ejectment (Temporary Powers) Ordinance No. 1 of 1952, which came into force on June 11, 1952.
Then, came the Punjab Security of Land Tenure Act (Punj.
X of 1953), now impugned, which repealed the aforesaid Acts XII of 1950 and V of 1951.
It came into force on April 15, 1953.
This Act itself was amended by Act LVII of 1953 and Act XI of 1955.
Though.
this Act has undergone subsequent amendments in 1957 and 1958, we are not concerned with those amendments, because they came into existence after this Court was moved under article 32 of the Constitution.
We are concerned with the state of the law as it stood after the amendment of 1955, aforesaid.
Before dealing with the grounds of attack urged against the impugned Act, it is convenient to set out, 752 in a nut shell, the salient provisions of the Act, which have given rise to the present controversy, and which give an idea of the scope and nature of the legislation now under examination.
The Act has a short Preamble, namely, " to provide for the security of land tenure and other incidental matters ".
The Act further reduces the " permissible area " (section 2(3) ) in relation to a landlord or a tenant, to 30 standard acres equivalent to 60 ordinary acres, thus, releasing a larger area for re settlement of tenants ejected or to be ejected under the provisions of the Act.
So to say, it creates a pool of "surplus area" (section 2(5 a)), meaning thereby the area other than the"reserved area"in excess of the "permissible area" as aforesaid.
"Reserved area" means the area lawfully reserved by the landlord under the provisions of the two Acts aforesaid, which were repealed by the Act (section
2(4)).
The definition of a tenant under the Act, includes a sub tenant and a self cultivating lessee (section
2(6)).
As already indicated, a tenant also may be liable to be ejected from any area which he holds in any capacity whatever in excess of the " permissible area ".
Section 10 A authorizes the State Government or any officer empowered by it in this behalf, to utilize any " surplus area " for re settlement of tenants ejected or to be ejected under the provisions of section 9(1).
But a tenant inducted on to such " surplus area ", holds the land under the land owner, who, thus, becomes entitled to receipt of rent from the tenant.
Section 12 lays down the maximum rent payable by a tenant.
Section 17 recognizes the rights of certain tenants to pre empt sales or fore closure of land.
Section 18, which formed the subject matter of the most vehement attack on behalf of the petitioners, confers upon the tenants of the description given in the several clauses of the Act, the right to purchase from the land owner the land held by them, subject to certain exceptions, and subject to the payment in a lump sum or in six monthly instalments not exceeding ten, of the purchase price to be determined in accordance with cls.
(2) and (3) of section 18.
Section 23 invalidates any decree or order of any.
court or authority, or a notice 753 of ejectment, which is not consistent with the provisions of the Act.
Thus, the Act seeks to limit the area which may be held by a land owner for the purpose of self cultivation, thereby, releasing " surplus area " which may be utilized for the purpose of resettling ejected tenants, and affording an opportunity to the tenant to become the land owner himself on payment of the purchase price which, if anything, would be less than the market value.
It, thus, aims at creating what it calls a class of " small land owners " meaning thereby, holders of land not exceeding the " permis sible area " (section
2(2)).
The utmost emphasis has been laid on self cultivation which means " cultivation by a land owner either personally or through his wife or children, or through such of his relations as may be prescribed, or under his supervision " (section
2(9) ).
The arguments at the Bar, on behalf of the petitioners may be put under three main heads, namely, (1) that the Legislature had no legislative competence to enact the Act, (2) that the provisions of the Act contravene the petitioners ' fundamental rights enshrined in articles 14, 19(1)(f) and 31 of the Constitution, and (3) that certain specified provisions of the Act amount to unreasonable restrictions on the petitioners ' rights to hold and dispose of property.
At the outset, it is necessary to deal with the question of legislative competence, which was raised on behalf of some of the petitioners, though not on behalf of all of them.
This argument of want of legislative competence goes to the root of the impugned Act, and if it is well founded, no other question need be gone into.
It has been argued that Entry 18 in List II of the Seventh Schedule to the Constitution, should not be read as authorizing the State Legislature to enact a law limiting the extent of the land to be held by a proprietor or a landowner.
Entry 18 is in these words: " 18.
Land, that is to say, rights in or over land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land improvement and agricultural loans; colonization.
" 754 It will be noticed that the Entry read along with article 246(3) of the Constitution, has vested exclusive power in the State to make laws with respect to " rights in or over land tenures including the relation of landlord and tenant. .
The provisions of the Act set out above, deal with the landlord 's rights in land in relation to his tenant, so as to modify the landlord 's rights in land, and correspondingly, to expand the tenant 's rights therein.
Each of the expressions " rights in or over land " and " land tenures ", is comprehensive enough to take in measures of reforms of land tenures, limiting the extent of land in cultivating possession of the land owner, and thus, releasing larger areas of land to be made available for cultivation by tenants.
Counsel for some of the petitioners who challenged the legislative competence of the State Legislature, were hard put to it to enunciate any easily appreciable grounds of attack against Entry 18 in List II of the Seventh Schedule.
It was baldly argued that Entry 18 aforesaid, was not intended to authorize legislation which had the effect of limiting the area of land which could be directly held by a proprietor or a land owner.
It is difficult to see why the amplitude of the words " rights in or over land " should be cut down in the way suggested in this argument.
A similar argument was advanced in the case of The United Provinces vs Mst.
Atiqa Begum (1).
In that case, the United Provinces Regularization of Remissions Act, 1938 (U. P. XIV of 1938), was challenged.
One of the main provisions of that Act had validated remission of rent.
It had been argued that the United Provinces Legislature was not competent to legislate about the remission of rent, when the relevant words in Entry 21, relating to land in the Provincial List of the Seventh Schedule to the Constitution Act of 1935, were " collection of rents ".
Entry 21 relating to " land " bad added certain words by way of explanation and illustration of the intention of the Constitution makers, ,so as to indicate that the word " land " was meant to be used in its widest connotation.
A member of the (1)[1940] F.C.R. 110.
755 Full Bench of the Allahabad High Court, in his judgment which was the subject matter of the appeal to the Federal Court, had come to the conclusion that Item No. 21 aforesaid, including the words " collection of rents ", had not authorized the Provincial Legislature to validate remission of rent.
That conclusion was not upheld by the Federal Court which held that remission of rent was a matter covered by Item No. 21, and it was, therefore, within the competence of the Provincial Legislature to enact the impugned Act; and Gwyer, C. J., in the course of his judgment observed that the Items in the several lists of the Seventh Schedule, should not be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary and subsidiary matters which could fairly ' and reasonably be said to be comprehended in it.
The same Item 21 in List II (Provincial List) of the Seventh Schedule to the Constitution Act of 1935, came up for consideration before the Judicial Committee of the Privy Council on appeal from the Federal Court of India in Megh Raj vs Allah Rakhi (1), affirming the judgment of the Lahore High Court.
In that case, the Punjab Restitution of Mortgaged Lands Act (Punj.
IV of 1938) had been challenged as ultra vires.
By that Act, the Legislature had provided for redemption of mortgages on terms much less onerous than the terms of the mortgage deeds.
Their Lordships of the Judicial Committee of the Privy Council repelled the contention raised on behalf of the appellants that the words of Item No. 21, were not wide enough to comprehend the relationship of mortgagor and mortgagee in respect of agricultural land.
Their Lordships observed that Item 21 aforesaid, forming a part, as it did, of the Constitution, should, on ordinary principles, receive the widest construction, unless, for some reasons, it is cut down either by the terms of that item itself, or by other parts of the Constitution, which have, naturally, to be read as a whole; and then proceeded to make the following very significant observations : (1) (1946) L.R. 74 I.A. 12. 756 " As to item 21, " land ", the governing word, is followed by the rest of the item, which goes on to say, 'that is to say '.
These words introduce the most general concept ' rights in or over land '.
Rights in land ' must include general rights like full ownership or leasehold or all such rights.
Rights over land ' would include easements or other collateral rights, whatever form they might take.
Then follow words which are not words of limitation but of expla nation or illustration, giving instances which may furnish a clue for particular matters: thus there are the words relation of landlord and tenant, and collection ' of rents ".
Thus, their Lordships concluded that the Item 21 relating to land, would include mortgages as an incidental and ancillary subject.
Another branch of the same argument was that Entry 18 could not cover the determination of the relation of landlord and tenant, which is envisaged by some of the provisions of the Act, particularly section 18, which has the effect of converting the tenant into a land owner himself, by virtue of the purchase.
This argument is also disposed of by the judgment of the Federal Court in United Provinces vs Atiqa Begum (1).
It was next contended that Entry 18 has got to be read with article 19(5), in order to determine the legislative competence in enacting the impugned statute.
In other words, it was contended that cl.
(5) of article 19 of the Constitution, is in the nature of a proviso to the Entry ; and that the Entry so read along with article 19(5), lays down the test of the legislative competence.
This argument is easily disposed.
of with reference to the provisions of article 31 A of the Constitution.
If it is held that the provisions of the impugned statute lay down the law for the modification of rights in estates, as defined in sub article
(2) of article 31A, none of the grounds of attack founded on any of the provi sions of articles 14, 19 or 31, can avail the petitioners.
As will presently appear, the Act lays down provisions which are in the nature of modifications of rights in estates within the meaning of article 31A(1).
That being (1) 757 so, article 19(5) is wholly out of the way in this case.
In view of all these considerations, it must be held that there is no legal foundation for the contention that the impugned Act is beyond the legislative competence of the State Legislature.
Having dealt with the question of legislative competence, we have to deal with the several contentions raised on behalf of the petitioners, with reference to the provisions of articles 14, 19 and 31 of the Constitution.
On this part of the case, it has rightly been conceded on behalf of the petitioners that if the impugned Act comes within the purview of any of the clauses of article 31A, the law will be immune from attack on any of the grounds based on the provisions of articles 14, 19 and 31.
But it has been argued that the provisions of article 31A(1)(a), which are admittedly the only portions of the Article, which are relevant to the present inquiry, are not attracted to the impugned Act.
It has been conceded on behalf of the respondents that the Act does not provide for the acquisition by the State of any estate or of any rights in any estate.
Hence, the crucial words which must govern this part of the controversy, are the words " the extinguishment or modification of any such rights "; that is to say, we have to determine whether or not the impugned Act provides for the extinguishment or modification of any rights in " estates ".
article 31A(2) defines what the expression II estate " used in article 3 1 A means.
According to that definition, " the expression " estate " shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or Muafi or other similar grant and in the States of Madras and Kerala, any janmam right".
It is common ground that we have to turn to the definition of an estate, as contained in the Punjab Land Revenue Act XVII of 1887.
Section 3(1) of that Act has the following definition: (1) " estate " means any area (a) for which a separate record of rights has been made; or 758 (b)which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed ; or (c)which the (State) Government may, by general rule or special order, declare to be an estate ".
Clause (c) of the definition is out of the way, because it has not been claimed that the State Government has made any declaration within the meaning of that clause.
Estate, therefore, for the purposes of the present controversy, means any area or which a separate record of rights has been made, or which has been separately assessed to land revenue (omitting the unnecessary words).
In this connection, it is also necessary to refer to the definition of a holding in section 3(3) in the following terms: "(3) 'holding" means a share or portion of an estate held by one landowner or jointly by two or more landowners ".
It was not controverted at the Bar that in Punjab, there are very few estates as defined in section 3(1), quoted above, in the sense that one single land owner is seized and possessed of an entire estate which is equated with a whole village.
In other words, in Punjab, an estate and a village are inter changeable terms, and almost all villages are owned in parcels, as holdings by co sharers, most likely, descendants of the holder of a whole village which came to be divided amongst the co sharers, as a result of devolution of interest.
The parties were also agreed that the impugned Act deals with holdings, as defined in the Land Revenue Act, or shares or portions thereof.
The argument on behalf of the petitioners to get over the provisions of article 31A, is that the Act does not deal with any estate or any rights therein, but only with holdings or shares or portions thereof.
This argument proceeds on the assumption that holdings are not any rights in an estate.
If the petitioners are right in their contention that the immunity granted by article 31A of the Constitution, is available only in respect of entire estates and not portions of estates, then the argument on behalf of the respondents that the Act is saved by the 759 provisions of that Article fails in limine.
If, on the other hand, it is held that article 31A applies not only to entire estates or any rights therein, but also to shares or portions of an estate or rights therein, then all the arguments advanced on behalf of the petitioners, founded on the provisions of Arts 14, 19 and 31, are thrown overboard.
Therefore, it becomes necessary to consider the amplitude of the expression " any estate or of any rights therein " in article 31A(1)(a).
Rights in an estate may be either quantitative or qualitative.
That is to say, rights in an estate may be held by persons having different qualities of rights in lands constituting an estate, as a result of sub infeudation.
Generally speaking and omitting all references to different kinds of land tenures prevailing in different parts of India, it may be said that at the apex of the pyramid, stands the State.
Under the State, a large number of persons variously called proprietors, zamindars, malguzars, inamdars and jagirdars, etc., hold parcels of land, subject to the payment of land revenue designated as peshkash, quit rent or malguzari, etc., representing the Government demands by way of land tax out of the usufruct of the land constituting an estate, except where Government demands had been excused in whole or in part by way of reward for service rendered to the State in the past, or to be rendered in the future.
An estate, thus, is an area of land which is a unit of revenue assessment, and which is separately entered in the Land Revenue Collector 's register of revenue paying or revenue free estates.
A single estate, unless governed by the Rule of Primogeniture, would, in course of time, be hold by a number of persons in the same rights as co sharers in the estate.
Those several co sharers are all jointly and severally liable for the payment of the Government demands, if any, though, by an arrangement with the Revenue Department, they may have had a distribution made of the total Government demands as payable in respect of aliquot portions of the estate.
Generally speaking, in the first instance, each sharer in an estate is liable to pay his portion of the landrevenue, but if, for any reasons, the Government 760 demands cannot be realized from any defaulting share primarily liable for them, the entire estate, including the shares of those who may not be the defaulting proprietors, is liable to be sold or otherwise dealt with for the realization of those demands.
Thus, the unity of assessment of land revenue in respect of the entire estate remains intact.
In actual practice, the holder of each specified portion or share of an estate, holds his portion for his own exclusive use and occupation.
Such a sharer in an estate in Punjab is known as the land owner of a " holding ".
But such a holding still continues to be a portion or a share of the estate out of which it has been carved.
Such a division of an estate is quantitative or a vertical division of an estate.
But there may also be a horizontal or qualitative division of the lands in an estate, effected by the process of sub infeudation.
Continuing the illustration of the pyramid, generally speaking, the lands in an estate may in their entirety or in portions, be let out to what, in Eastern India, are known as tenure holders, for example, patnidars, in areas covered by the Permanent Settlement.
Tenure holders were persons who took lands of an estate not necessarily for the purpose of self cultivation, but also for settling tenants on the land, and realizing rents from them.
These patnidars may have darpatnidars under them, and darpatnidars sepatnidars, and in this way, the sub infeudation went on.
All these classes are included within the terms " tenure holders ", " sub proprietors " or " under proprietors ".
The persons who are inducted on to the land for bringing it under their direct cultivation, are generally known in Eastern India as raiyats with rights of occupancy in the land held by them.
But raiyats, in their turn, may have inducted tenants under them in respect of the whole or a portion of their holding.
The tenant holding under a raiyat is known as an under raiyat, and an under raiyat may induct a tenant under himself, and he will be an under raiyat of the second degree.
Thus, in each grade of holders of land, in the process of subinfeudation described above.
the holder is a tenant under his superior holder, the landlord, and also the 761 landlord of the holder directly holding under him.
Thus, in Eastern India, the interest of intermediaries between the proprietor of an " estate " at the top and the actual tiller of the soil at the bottom, is known as that of a " tenure holder ", and the interest of tenants other than tenure holders, is given the generic name of a " holding ".
A holding in Eastern India, thus, indicates the interest of the actual tiller of the soilraiyat or under raiyat unlike the " holding " in Punjab where, as indicated above, its signifies the interest of the holder of a share in an estate.
Thus, holdings in Punjab are vertical divisions of an estate; whereas in Eastern India, they represent a horizontal division, connoting a lesser quality of an estate in land than the interest of a tenure holder in his tenure, or of a land owner in his estate or portion of an estate.
It is not necessarily true that there should be intermedia ries in every estate or a portion of an estate.
Very often, the holder of an estate may be holding his entire estate directly in his possession by way of khudkasht, zeerat, kamath or neezjote, or it may be that the proprietor has only raiyats under him without the intermediation of tenure holders, and the raiyats may not have any under raiyats under them.
The process of sub infeudation described above, naturally, varies with the size of the estate.
It appears to be common ground in this case that in Punjab, an estate means the whole village, whereas in Eastern India, an estate may comprise a whole district or only a cluster of villages, or a single village, or even a part of a village.
The larger the size of an estate, the greater the process of sub infeudation and vice versa.
In Punjab, as there was no permanent settlement of Revenue as in Bengal, Bihar, Orissa and other parts of Eastern India, the unit of revenue assessment has been the village.
Thus, a holding in Punjab means a portion of a village either big or small.
That portion may be in the direct possession of the landowner himself, or he may have inducted tenants on a portion or the whole of his holding.
The interest of the tenant in Punjab, appears to have been a precarious tenure, even more precari ous than that of an under raiyat in Eastern India.
The 96 762 Punjab Legislature, realising that the interest of a tenant was much too precarious for him to invest his available labour and capital to the fullest extent so as to raise the maximum quality and quantity of money crops or other crops, naturally, in the interest of the community as a whole, and in implementation of the Directive Principles of State Policy, thought of granting longer tenures, and as we have seen above, the period has been progressively increased until we arrive at the stage of the legislation now impugned, which proposes to create a large body of small land owners who have a comparatively larger stake in the land, and consequently, have greater impetus to invest their labour and capital with a view to raising the maximum usufruct out of the land in their possession.
Keeping in view the background of the summary of land tenures in Punjab and elsewhere, we have to construe the amplitude of the crucial words " any estate or of any rights therein " in article 31A (1) (a).
Soon after the coming into effect of the Constitution, the different States in India embarked upon a scheme of legislation for reforming the system of land holding, so as (1) to eliminate the intermediaries, that is to say, those who hold interest in land in between the State at the apex and the actual tillers of the soil in other words, to abolish the class of rent receivers, and (2) to create a large body of small landholders who have a permanent stake in the land, and who are, therefore, interested in making the best use of it.
As the connotation of the term " estate " was different in different parts of the country, the expression " estate " described in el.
(2) of article 31 A, has been so broadly defined as to cover all estates in the country, and to cover all possible kinds of rights in estates, as shown by sub cl.
(b) of cl.
(2) of article 31A, which is in these terms: shall include any rights vesting in a proprietor, sub proprietor, under proprietor, tenure holder (raiyat, under raiyat) or other intermediary and any rights or privileges in respect of land revenue.
" The expression " rights " in relation to an estate has been given an all inclusive meaning, comprising both 763 what we have called, for the sake of brevity, the " horizontal " and " vertical " divisions of an estate.
A proprietor in an estate may be the proprietor holding the entire interest in a single estate, or only a co sharer proprietor.
The provisions aforesaid of article 31A, bearing on the construction of the expression " estate " or "rights" in an estate, have been deliberately made as wide as they could be, in order to take in all kinds of rights quantitative and qualitative in an area co extensive with an estate or only a portion thereof.
But it has been suggested that the several interests indicated in sub cl.
(b), quoted above, have been used with reference to the area of an entire estate, but knowing as we do, that a raiyat 's or an under raiyat 's holding generally is not co extensive with the area of an entire estate but only small portions thereof, it would, in our opinion, be unreasonable to hold that the makers of the Constitution were using the expression " estate " or " rights " in an estate, in such a restricted sense.
Keeping in view the fact that article 31A was enacted by two successive amendments one in 1951 (First Amendment), and the second in 1955 (Fourth Amendment) with retrospective effect, in order to save legislation effecting agrarian reforms, we have every reason hold that those expressions have been used in their widest amplitude, consistent with the purpose behind those amendments.
A piece of validating enactment purposely introduced into the Constitution with a view to saving that kind of legislation from attacks on the ground of constitutional invalidity, based on articles 14, 19 and 31, should not be construed in a narrow sense.
On the other hand, such a constitutional enactment should be given its fullest and widest effect, consistently with the purpose behind the enactment, provided, however, that such a construction does not involve any violence to the language actually used.
Another branch of the same argument was that if the makers of the Constitution intended to include within the purview of article 31A, not only entire estates but also portions thereof, nothing would have been easier than to say so in terms, and that in the absence of any specific mention of " portions of an estate 764 we should not read that article as covering " portions of an estate " also.
In our opinion, there is no substance in this contention, because they must be attributed full knowledge of the legal maxim that " the greater contains the less " Omne Majus continet in se minus.
In this connection, our attention was invited to the decision of a Full Bench of the Punjab High Court in the case of State of Punjab vs section Kehar Singh (1), to the effect that a holding being a part of an estate, was not within the purview of article 31A of the Constitution.
In this connection, it is necessary to state the conflict of views in that High Court itself.
In the case of Bhagirath Ram Chand vs State of Punjab (2), the validity of the very Act impugned before us, was challenged on grounds based upon Articles 14, 19 and 31 of the Constitution.
The learned Judges constituting the Full Bench, unanimously held that the impugned Act did not infringe those provisions of the Constitution, and the restrictions on the right of land holding, imposed by the Act, were reasonable, and that the classification did not exceed the permissible limit.
But they also held that the Act was saved by article 31A of the Constitution, which applied equally to an entire estate or to a portion thereof.
Besides giving other reasons, which may not bear close scrutiny, they made specific reference to the doctrine that the whole includes the part.
Thus, the Full Bench specifically held that article 31A of the Constitution applied equally to portions of estates also.
This decision of the Full Bench was followed by a Division Bench of the same High Court, consisting of Bhandari, C. J., and Dulat, J., in the case of Hukam Singh vs The State of Punjab (3).
That Bench was concerned with the provisions of another Act Punjab Village Common Lands (Regulation) Act, 1954.
In that case, the Division Bench, naturally, followed the decision of the Full Bench in so far as it had ruled that the I whole ' includes the part, and that where an Act provides for rights in an estate, it provides for rights in a part of an estate also.
The later Full (1) (1958) 60 P.L.R 461.
(2) A.I.R. 1954 Pun.
(3) 765 Bench case referred to above, was decided by three Judges, including Bhandari, C. J., who agreed with the judgment of the Court delivered by Grover, J.
Perhaps, the better course would have been to constitute a larger Bench, when it was found that a Full Bench of three Judges, was inclined to take a view contrary to that of another Full Bench of equal strength.
Such a course becomes necessary in view of the fact that otherwise the subordinate courts are placed under the embarrassment of preferring one view to another, both equally binding upon them.
In our opinion, the view taken by the earlier Full Bench is the correct one.
The learned Chief Justice who was a party to both the conflicting views on the same question, has not indicated his own reasons for changing his view.
The Full Bench has accepted the force of the legal maxim that the greater contains the less, referred to above, but has not, it must be said with all respect, given any good reasons for departing from that well established maxim.
The judgment of the Full Bench on this part of the case is based entirely upon the definition of an estate, as contained in the Punjab Land Revenue Act, set out above.
It has not stopped to consider the further question why a holding, which is a share or a portion of an estate, as defined in the Punjab Act, should not partake of the characteristics of an estate.
Keeping in view the background of the legislative history and the objective of the legislation, is there any rational reason for holding that the makers of the Constitution thought of abolishing only intermediaries in respect of an area constituting one entire estate but not of a portion thereof ? On the other hand, as indicated above, they have used the expression " estate" in an all inclusive sense.
They have not stopped at that; they have also added the words " or any rights therein ".
The expression " rights " in relation to an estate again has been used in a very comprehensive sense of including not only the interests of proprietors or sub proprietors but also of lower grade tenants, like raiyats or under raiyats, and then they added, by way of further emphasizing their intention, the expression " other intermediary ", thus, clearly showing that 766 the enumeration of intermediaries was only illustrative and not exhaustive.
If the makers of the Constitution have, thus, shown their intention of saving all laws of agrarian reform, dealing with the rights of intermediaries, whatever their denomination may be, in our opinion, no good reasons have been adduced in support of the view that portions or shares in an estate are not within the sweep of the expression " or any rights therein ".
A recent decision of this Court in the case of Ram Narain Nedhi vs The State of Bombay (1) dealt with the constitutionality of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956, which contains similar provisions with a view to doing away with intermediaries, and establishing direct relationship between the State and tillers of the soil.
In that case also, the contention had been raised that the expression " estate " had reference to only alienated lands and not to unalienated lands, and this Court was invited to limit the meaning of the expression in the narrower sense.
This Court repelled that contention in these words: the context of the Code is thus clear and unambiguous as comprising both the types of lands, there is no reason why a narrower construction as suggested by the petitioners should be put upon the expression " estate. . . .
Even if there was any ambiguity in the expression, the wider significance should be adopted in the context of the objectives of the Act as stated above.
" These observations apply with full force to the contention raised on behalf of the petitioners in the present cases also.
Another branch of the same argument as to why the provisions of article 31A do not apply to the Act, is that the Act did not have the effect of either extinguishing or modifying any rights in any estate, assuming that the expression " estate " includes reference also to parts of an estate.
In this connection, it is contended that the provisions of the Act impugned in these cases, did not amount to the extinguishment of (1) [1959] SUPP.
(1) S.C.R. 489.
767 the interest of the land owners in estates or portions thereof, and that what the Act did was to transfer some of the rights of the land owners to their tenants.
In this connection, reliance was placed on the observations of this Court in the case of Thakur Raghubir Singh vs Court of Wards, Ajmer (1), where Mahajan, J. (as he then was, speaking for the Court, observed that the expressions " extinguishment " and " modification " used in article 31A of the Constitution, meant extinguishment or modification respectively of a proprietary right in an estate, and should not include, within their ambit, a mere suspension of the right of management of an estate for a time definite or indefinite.
Those observations must be strictly limited to the facts of that case, and cannot possibly be extended to the provisions of Acts wholly dissimilar to those of the Ajmer Tenancy and Land Records Act, XLII of 1950, which was the subject matter of the challenge in the case then before this Court.
This Court held, on a construction of the provisions of that Act, that they only suspended the right of management but did not amount to any extinguishment or modification of any proprietary rights in an estate.
The provisions of the Act then under consideration of this Court, have absolutely no resemblance to those of the Act now before us, and it is impossible to put a similar interpretation on these provisions.
In the recent decision of this Court (not yet reported*), this Court had been invited to apply the observations of this Court referred to above, to the provisions of the Bombay Act.
It was pointed out in that case that those observations of Mahajan, J. (as he then was), must be read as limited to an Act which only brings about a suspension of the right of management of an estate, and could not be extended to the provisions of an Act which either extinguishes or modifies certain rights of a proprietor in an estate or a portion thereof.
In this connection, it was further argued that extin guishment of a right, does not mean substitution of (1) ; , 1055, 1056.
Since reported as Sri Ram Narain Modhi vs The State of Bombay, [1959] SUPP (1) S.C.R. 489.
768 another person in that right, but total annihilation of that right.
In our opinion, it is not necessary to discuss this rather metaphysical argument, because, in our opinion, it is enough for the purpose of this case to bold that the provisions of the Act, amount to modification of the landowner 's rights in the lands comprised in his " estate " or " holding ".
The Act modifies the land owner 's substantive rights, particularly, in three respects, as indicated above, namely, (1) it modifies his right of settling his lands on any terms and to anyone he chooses; (2) it modifies, if it does not altogether extinguish, his right to cultivate the " surplus area" as understood under the Act; and (3) it modifies his right of transfer in so far as it obliges him to sell lands not at his own price but at a price fixed under the statute, and not to any one but to specified persons, in accordance with the provisions of the Act, set out above.
Thus, there cannot be the least doubt that the provisions of the Act, very substantially modi the land owner 's rights to hold and dispose of his property estate or a portion thereof.
It is, therefore clear that the provisions of article 31A save the impugned Act from any attack based on the provisions of articles 14, 19 and 31 of the Constitution.
That being so, it is not necessary to consider the specific provisions of the Act, which, it was contended, were unreasonable restrictions on the land owner 's rights to enjoy his property, or whether he had been unduly discriminated against,, or whether the compensation,if any, provided for under the Act, was illusory or, at any rate, inadequate.
Those grounds of attack are not available to the petitioners.
In the result, all these petitions are dismissed with costs, the State of Punjab and its officers being entitled to only one set of hearing fees in all the petitions.
Petitions dismissed.

summary:
The point in controversy in these petitions was the con stitutional validity of the Punjab Security of Land Tenure Act (Punj.
X Of 1953), as amended by Act XI of 1955, which sought to "provide for the security of land tenure and other incidental matters ".
The impugned Act which admittedly dealt with holdings as defined by the Punjab Land Revenue Act, 1887, limited the area which might be held by a land owner for the purpose of self cultivation and thereby released surplus area to be utilised for resettling ejected tenants ; and by section 18 conferred upon the tenants the right to purchase from the land owners the lands held by them and thus themselves to become the landowners on prices which would be below the market value.
It was contended on behalf of the petitioners, who were,landowners affected by the impugned Act, that under Entry 18 in List II of the Seventh Schedule to the Constitution, the State Legislature was incompetent to enact a law limiting the extent of the land to be held by a land owner and that the provisions of the impugned Act contravened the petitioners ' fundamental rights under articles 14, 19(1)(f)and 31 of the Constitution.
Held, that the contentions must fail.
The words " rights in or over land " and " land tenures occurring in Entry 18 in List 11 of Seventh Schedule to the Constitution were sufficiently comprehensive to include measures of land tenure reforms, such as the impugned Act, that sought to limit the extent of land in cultivating possession of the landowner in order to release larger areas of land to be made available for cultivation by tenants and that Entry read with article 246(3) of the Constitution gave the State Legislature exclusive power to enact such measures.
Such determination of the relation of landlord and tenant as was contemplated by section 18 and other provisions of the impugned Act, which sought to convert a tenant into a land owner, was well within the ambit of Entry 18.
749 The United Provinces vs Mst.
Atiqa Begum, and Megh Raj vs Allah Rakhi, (1946) L.R. 74 I.A. 12, referred to.
It was beyond doubt that the impugned Act substantially modified the land owner 's rights to hold and dispose of his property in any estate or portion thereof and thus fell within the purview of article 31A(1)(a) of the Constitution and was immune from any attack on the ground that it contravened articles 14, 19and 31 of the Constitution.
The observations made by this Court in Thakur Raghubir Singh vs Court of Wards, Ajmer, ; , in connection with another Act, with absolutely different provisions, must be limited to the facts of that case and were wholly inapplicable.
Thakur, Raghubir Singh vs Court of Wards, Ajmer, ; , distinguished and held inapplicable.
The words " any estate or of any rights therein " occurring in article 31A(1)(a) read in the light of article 31A(2) included any kinds of rights either quantitative or qualitative in the area encompassed by an estate or any portion of it and thus included holdings as defined by the Punjab Land Revenue Act, 1887, and any shares or portions thereof.
Regard being had to the legal maxim that the greater must include the less, it was, inappropriate to suggest that the Constitution should have specifically mentioned "portion of an estate" in article 31A if it intended to give that Article such a comprehensive construction.
Bhagirath Ram Chand vs State of Punjab, A.I.R. 1954 Pun. 167, approved.
State of Punjab vs section Kehar Singh, (1958) 60P.L.R. 461, dis approved.
Ram Narain Medhi vs The State of Bombay, [1959] SUPP.
(1) S.C.R. 489, applied.
Hukam Singh vs The State of Punjab, , referred to.


judgement:
N: Civil Appeal No. 135 of 1991.
From the Judgment and order dated 16.6.1989 of the Madras High Court Crl.
M.P. No. 2717 of 1988.
T.S. Krishnamoorthy Iyer, K. Rajeswara, N.D.B. Raju and K.R. Chaudhary for the Appellant.
K.K. Lahiri, R.K. Jain (NP), Sreekant, N. Terdal, Mrs. Sushma Suri and A Subba Rao for the Respondent.
The Judgment of the Court was delivered by 745 K.N.SAIKIA, J.
Special leave granted.
The appellant Captain Subhash Kumar was the Master of the Merchant ship M.V. Eamaco owned by Eamaco Shipping Co. (P) Ltd. Singapore, hereinafter called `the ship '.
On 12.8.86 the ship went into distress due to the vessel 's hold Nos. 2 & 3 taking in water, the pumping operations being insufficient and though initially the appellant sent radio message for help he failed to launch the life boats and life crafts and to abandon the ship to enable M.V. Shoun World to pick them up and due to the failure of motor life boats and life crafts, when the ship sank, only 11 out of 28 persons were rescued resulting in loss of life to the remaining persons.
At about 18.25 Hrs.
that day Madras Radio, which was the communication centre between the land and seafaring ships, informed the office of the Principal Officer, Mercantile Marine Department, Madras, District Madras, hereinafter called as `Principal Officer ', that an urgent message had been received by the said Radio from the appellant and from that communication it was clear that the ship under the command of the appellant was posted at position 11 degrees 08 minutes North, 83 degrees 41 minutes East on 12th at 11.30 Greenwich meantime.
The said message further indicated that the vessel 's hold Nos. 2 & 3 were taking in water and the pumping out operation was not sufficient and it called the assistance from all ships in the vicinity.
At 20.28 Hrs.
the Madras Radio again contacted the Principle officer and said that the Radio had received SOS message (distress message) and he took necessary steps.
The Principal Officer filed a complaint in court of 14th Metropolitan Magistrate, Egmore, Madras 8 against the appellant for initiation of an inquiry proceeding under section 363 of the (Central Act No.4 of 1958), hereinafter called `the Act, complaining about the negligence of the appellant while he was the Master of the ship as aforesaid; and that at that time he was residing at Laxmi Niwas, 41, Marshal Road, Egmore, Madras 8 and further stating that the shipping casualty had occurred due to sheer negligence and gross incompetence on the part of the appellant in commanding the ship and the crew; and that the very fact that the life boats and life floats were not used and not even lowered so as to make use of that indicated that the appellant had not even thought about that which a Captain of the ship should have done, resulting in loss of the ship, the cargo and valuable lives of the sailors who had at no time doubted about the competency of the Master or revolted against him.
The complaint accordingly said that the Magistrate 's Court by the provisions of section 363 had got powers to make inquiry into the charges of 746 incompetence or of misconduct of the appellant therein.
It also said that the inquiry be commenced in accordance with the provisions of the Act so as to cancel the certificates of competency of the Master, namely, the appellant, which had been granted by the Central Government; and that cancellation might be recommended under the Act after holding the aforesaid inquiry.
The complaint also said that the appellant rendered himself liable to be proceeded against under the provisions of part XII of the Act which envisaged various modes of investigation and inquiry; and under section 363 the court had powers to make an inquiry into the charges of incompetency or misconduct of the appellant.
On 25.3.1988, the appellant received a notice stating that the inquiry proceedings were instituted against him before the 14th Metropolitan Magistrate under section 363 of the Act.
The appellant thereupon filed Cr.
M.P. No.2717 of 1988 in the High Court under section 482 of the Cr.
P.C. stating that the proceedings were by an abuse of process of the court and the Court had no jurisdiction to proceed with the complaint against the appellant when there was no negligence on his part.
It was also stated that the fact that the appellant was a holder of a Master certificate issued by the Director General of Shipping, Calcutta would not attract the provisions of the Act inasmuch as the ship was a foreign ship and the Master certificate had been issued by a foreign country and the casualty had occurred in the high seas nearly 232 nautical miles away from India and being in open sea the ship was subject to the jurisdiction and also to the protection of the State under whose maritime flag it sailed.
The appellant was, it was further stated, to be in command of the ship by virtue of the certificate issued by the Panamanian Government, the flag of the ship was of Panama and, therefore, the provisions of the Act would not at all apply, much less its section 363.
In other words the proceedings were allegedly intended to harass the appellant without jurisdiction and it amounted to an abuse of process of court.
The learned Single Judge who heard the petition rejected the contention that in view of the language of section 2 of the Act it would not be applicable and that it would not be a shipping casualty as defined in section 358 of the Act, and held that the Act was applicable in the instant case and the action of the petitioner amounted to sheer negligence and called for investigation and inquiry under the Act.
Hence this appeal.
Mr. T. Krishnamurthy Iyer, the learned cousel for the appel 747 lant, submits, inter alia, that the negligence complained of having occurred in respect of foreign ship flying foreign flag at a place 232 nautical miles away from India, and as such, outside the territorial waters of India the Act would not be applicable; and that even if it was applicable it would not amount to a shipping casualty as envisaged in part XII of the Act; and lastly that even assuming that chapter XII applied, the complaint could not have been filed by the Principal Officer in the court of the 14th Metropolitan Magistrate, Egmore, Madras 8 under section 363 of the Act.
Mr. K. Lahiri, the learned counsel for the respondents submits that the shipping casualty having occurred within the territorial waters of India which extended up to 200 nautical miles, the Act would be applicable and the complaint was rightly filed under section 363 of the Act; and that the High Court under section 482 of the Code of Criminal Procedure rightly refused to quash the proceedings.
Three questions, therefore, are to be decided in this appeal.
First, whether the Act would at all be applicable in the facts and circumstances of the case; secondly, if the Act was applicable whether part XII of the Act would apply; and thirdly, if both the Act and part XII were applicable whether the complaint made by the Principal Officer under section 363 of the Act would be maintainable.
Taking the first question first, the Act is one to foster the development and ensure the efficient maintenance of India Mercantile Marine in the manner best suited to serve the national interest and for that purpose to establish a National Shipping Board and Shipping National Fund to provide for registration of India ship and the law relating to Merchant shipping.
Section 2 of the Act deals with its application and says; "(1) Unless otherwise expressly provided, the provisions of this Act which apply to (a) any vessel which is registered in India; or (b) any vessel which is required by this Act to be so registered; or (c) any other vessel which is owned wholly by persons to each of whom any of the descriptions specified in clause (a) or in clause (b) or in clause (c), as the case may be, of 748 section 21 applies, shall so apply wherever the vessel may be.
(2) Unless otherwise expressly provided, the provisions of this Act which apply to vessels other than those referred to in sub section (1) shall so apply only while any such vessel is within India, including the territorial waters thereof." In the instant case the ship was not registered in India and was not required by this Act to be so registered.
Clause (c) refers so clauses (a), (b) and (c) of section 21 which defines Indian ships, and says: "For the purposes of this Act, a ship shall not be deemed to be an Indian ship unless owned wholly by persons to each to whom any of the following descriptions applies: (a) a citizen of India; or (b) a company which satisfies the following requirements, namely: (i) the principal place of business of the company is in India; (ii) at least seventy five per cent of the share capital of the company is held by citizens of India: Provided that the Central Government may, by notification in the official Gazette, alter such minimum percentage, and where the minimum percentage is so altered, the altered percentage shall, as from the date of the notification, be deemed to be substituted for the percentage specified in this sub clause; (iii) not less than three fourths of the total number of directors of the company are citizens of India; (iv) the chairmen of the board of directions and the managing director, if any, of the company are citizens of India; (v) the managing agents, if any, of the company are citizens of India or in any case where a company is the managing agent, the company satisfies the requirements specified in sub cls.
(i), (ii), (iii) and (iv).
or 749 (c) a co operative society which satisfies the following requirements, namely: (i) the co operative society is registered or deemed to be registered under the , or any other law relating to co operative societies for the time being in force in any State, (ii) every individual who is a member of the co operative society and where any other co operative society is a member thereof, every individual who is a member of such other co operative society, is a citizen of India.
" The ship was not a ship owned wholly by persons each of whom was a citizen of India or by a company satisfying the descriptions under clause (b) or (c).
Sub section (2) of section 2 makes the provisions of the Act applicable to vessels other than those referred to in sub section (1) only while any such vessel is within India, including the territorial waters thereof.
The ship a Panamanian ship registered in Panama would come within the purview of the Act only it is within India including the territorial waters.
This leads us to the question as to the extent of territorial waters of India.
The Territorial Waters, Continental shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (Act No. 80 of 1976) is an Act to provide for certain matters relating to the territorial waters continental shelf, exclusive economic zone, and other maritime zones of India.
Section 2 of the Act defines "limit" in relation to the territorial waters, the continental shelf, the exclusive economic zone or any other maritime zones of India to mean the limit of such waters shelf or zone with reference to the mainland of India as well as the individual or composite group or groups of islands constituting part of the territory of India.
Section 3 deals with sovereignty over, and limits of, territorial waters and says: "(1) The sovereignty of India extends and has always extended to the territorial waters of India (hereinafter referred to as the territorial waters) and to the seabed and subsoil underlying, and the air space over such waters.
(2) The limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline.
750 (3) Notwithstanding anything contained in sub section (2), the Central Government may whenever it considers necessary so to do having regard to International Law and State practice, alter, by notification in the Official Gazette, the limit of the territorial waters.
(4) No notification shall be issued under sub section (3) unless resolutions approving the issue of such notification are passed by both Houses of Parliament." Thus sub section (2) clearly provides that the limit of the territorial waters is a line every point of which is at a distance of 12 nautical miles from the nearest point of the appropriate baseline.
Under Article 297 of the Constitution of India things of value within territorial waters or continental shelf and resources of the exclusive economic zone to vest in the Union.
It says: "(1) All lands, minerals and other things of value underlying the ocean within the territorial waters, or the continental shelf, or the exclusive economic zone, of India shall vest in the Union and be held for the purposes of the Union.
(2) All other resources of the exclusive economic zone of India shall also vest in the Union and be held for the purposes of the Union.
(3) The limits of the territorial waters, the continental shelf, the exclusive economic zone, and other maritime zone, of India shall be such as may be specified, from time to time, by or under any law made by Parliament.
" Sub section (3), thus, empowers the Central Government if it considers necessary so to do having regard to the International Law and State practice, alter, by notification in the Official Gazette, the limit of territorial waters.
Under sub section (4) no such notification shall be issued unless resolutions approving the issue of such notification are passed by both Houses of Parliament.
A proclamation was made by the President of India published on September 30, 1967 in the Gazette of India Extraordinary, Part III, section 2 Notification of the Government of India in the Ministry of External Affairs No. FL/III (1) 67.
By a Notification of the Government of India dated 15th 751 January, 1977 the exclusive economic zone of India has been extended upto a distance of 200 nautical miles into the sea from shore and other maritime zones, 1976 under the 40th Constitution Amendment Act, 1976.
The concepts of territorial waters, continental shelf and exclusive economic zone are different concepts and the proclamation of exclusive economic zone to the limit of 200 nautical miles into the sea from the shore baseline would in no way extend the limit of territorial waters which extends to 12 nautical miles measured from the appropriate baseline.
The submission that territorial waters extends to the limit of 200 nautical miles by virtue of the notification extending exclusive economic zone to 200 nautical miles has, therefore, to be rejected.
Admittedly the ship (M.V.Eamaco) at the time of the casualty was at a place beyond the territorial waters of India and even the exclusive economic zone of India.
If this be the position, the ship would not be covered by the provisions of section 2 of the Act and consequently the provisions of the Act would not apply to the instant casualty.
Taking the second question it is obvious that the Act itself having not been applicable Chapter XII being a part of the Act will also not be applicable.
This Chapter deals with investigations and inquiries and contain sections 357 to 389.
Section 357 defines "coasts" to include the coasts of creeks and tidal rivers.
Section 358 deals with shipping casualties and report thereof and says: "(1) For the purpose of investigations and inquiries under this Part, a shipping casualty shall be deemed to occur when (a) on or near the coasts of India, any ship is lost, abandoned, stranded or materially damaged; (b) on or near the coasts of India, any ship causes loss of material damage to any other ship; (c) any loss of life ensues by reason of any casualty happening to or on board any ship on or near the coasts of India; (d) in any place, any such loss, abandonment, stranding, material damage or casualty as above mentioned occurs to or on board any India ship and any competent witness thereof is found in India; 752 (e) any Indian ship is lost or is supposed to have been lost and any evidence is obtainable in India as to the circumstances under which she proceeded to sea or was last heard of.
(2) In the cases mentioned in clauses (a), (b) and (c) of sub section (1), the master, pilot, harbour master or other person in charge of the ship, or (where two ships are concerned) in charge of each ship at the time of the shipping casualty, and in the cases mentioned in clause (d) of sub section (1), where the master of the ship concerned or (except in the case of a loss) where the ship concerned proceeds to any place in India from the place where the shipping casualty has occurred, the master of the ship, shall, on arriving in India, give immediate notice of the shipping casualty to the officer appointed in this behalf by the Central Government.
" Clause (d) envisages shipping casualty in any place but occurring to or on board any Indian ship whether the Master of the ship concerned (except in the case of a loss) where the ship concerned proceeds to any place in India from the place where the shipping casualty of the ship has occurred, the Master of the ship.
Thus this provision will not cover the ship.
The conclusion, therefore, is inescapable that the casualty in the instant case would not be a shipping casualty envisaged in section 358.
Subsequent sections, namely, 359, 360, 361 and 362, relate to shipping casualties as envisaged in section 358.
The impugned complaint was ex facie made under section 363 of the Act which deals with power of Central Government to direct inquiry into the charges of incompetency or misconduct, it says: "(1) If the Central Government has reason to believe that there are grounds for charging any master, mate or engineer with incompetency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, the Central Government.
(a) if the master, mate or engineer holds a certificate under this Act, in any case; 753 (b) if the master, mate or engineer holds a certificate under the law of any country outside India, in any case where the incompetency or misconduct has occurred on board an Indian ship; may transmit a statement of the case of any court having jurisdiction under section 361 which is at or nearest to the place where it may be convenient for the parties and witnesses to attend, and may direct that court to make an inquiry into that charge.
(2) Before commencing the inquiry, the court shall cause the master, mate or engineer so charged to be furnished with a copy of the statement transmitted by the Central Government.
" From the above provisions it appears that section 359 envisages the officers referred to in sub section (2) of section 358.
Receiving the information that a shipping casualty has occurred and reporting in writing the information to the Central Government and his proceeding to make a preliminary inquiry into the casualty and sending a report thereof to the Central Government or such other authority as may be appointed by it in that behalf.
Under section 360 the officer, whether he has made a preliminary inquiry or not, may, and, where the Central Government so directs, shall make an application to the court empowered under section 361 requesting it to make a formal investigation into any shipping casualty and the court shall thereupon make such investigation.
Thus the officer himself may or when directed by the Central Government shall make an application to the court requesting it to make a formal investigation into any shipping casualty.
Section 361 empowers the court to make a formal investigation under Part XII.
A Judicial Magistrate of the first class specially empowered in this behalf by the Central Government and a Metropolitan Magistrate shall have jurisdiction to make formal investigation into any shipping casualty under Part XII.
What has to be noted in this section is that the court on an application of the officer makes a formal investigation into shipping casualties and not a preliminary inquiry which could have been done by the officer referred to in sub section (2) of section 358, and under section 359 send a report to the Central Government.
Section 360 also envisages making of application to court by the officer whether he had made preliminary inquiry or not, requesting it to make formal investigation into any shipping casualty.
Thus under section 361 what is being envisaged is a formal investigation into a shipping 754 casualty and not a preliminary inquiry.
Section 362 deals with only formal investigation and says that while making such investigation into a shipping casualty the court may inquire, into any charge of incompetency or misconduct arising, in the course of the investigation, against any master, mate or engineer, as well as into any charge of a wrongful act or default on his part causing the shipping casualty.
Under sub section (2) a statement of the case has to be furnished to the Master, mate or Engineer.
Section 362 does not envisage inquiring into any charge of incompetency or misconduct otherwise than in the course of the formal investigation into a shipping casualty, Section 363 (1) envisages the Central Government, when it has reason to believe that there are grounds for charging any master, mate or engineer with incompetency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, (b) if he holds a certificate under the law or any country outside India, in any case where the incompetency or misconduct has occurred on board an Indian ship, and the transmitting of the statement of the case to any court having jurisdiction under section 361 where it may be convenient for the parties and witnesses to attend, and the Central Government may direct that court to make an inquiry into that charge.
Under clause (a) the Central Government may exercise the power if the Master, mate or Engineer holds a certificate under the Act, in any case.
Thus under this section the Central Government must have reason to believe that there are grounds for charging any master etc.
with incompetency or misconduct, otherwise than in the course of a formal investigation into shipping casualty, in case of a master of a foreign ship who holds a certificate under the Act "in any case".
It also envisages the transmitting the statement of the case to any court having a jurisdiction under section 361.
The question is what would be the meaning of the words "in any case".
Would it mean any case of shipping casualty, or it would mean any case irrespective of shipping casualty.
In other words, under the above provisions if the appellant was the master of the ship and the casualty was outside the territorial waters of India and the ship involved was a foreign ship would the expression "in any case" cover the instanct case? If the preceding sections of Part XII dealt with only Shipping casualty, will it be permissible to interpret the words "in any case" irrespective of shipping casualty and anywhere outside the territorial waters of India and whoever is the owner of the Vessel? Will not the ejusdem generis rule apply? Again when the Act itself is not applicable to a case, can these words be given a meaning beyond the applicability of the Act? Verba secundum materiam subjectam intelligi nemo est qui nesciat.
There is no one who does not know that words are to be understood according to their subject matter.
The subject matter of 755 Part XII is investigations and inquiries into shipping casualty.
Would 'in any case" then mean in any case of shipping casualty? We have read the other relevant provisions of the Act.
Nemo aliquam partem recti intelligere potest, antequam totum interum atque itrerum parlegerit.
No one can properly understand any part of a statute till he had read through the whole again and again.
We find that Part VI of the Act deals with certificates of officers, namely, Masters, mates and Engineers, Section 76(1) provides: "Every foreign going Indian ship, every home trade Indian ship of two hundred tons gross or more when going to sea from any port or place in India and every ship carrying passengers between ports or places in India shall be provided with officers duly certificated under this Act according to the following scale, namely: (a) in every case, with a duly certificated master; (b) if the ship is a foreign going ship or a home trade passenger ship of one hundred and fifty tons gross or more, with at least one officer besides the master holding a certificate not lower than that of first mate in the case of a foreign going ship and of mate in the case of a home trade passenger ship; (c) if the ship is a home trade ship, not being a passenger ship, of four hundred and fifty tons gross or more, with at least one officer besides the master holding a certificate not lower than that of mate.
(d) if the ship is a foreign going ship and carries more than one mate, then with the second mate duly certificated.
" Section 79 deals with examination for, and grant of, certificate.
Section 82 provides that a note of all orders made for canceling, suspending, altering or otherwise affecting any certificate of competency, in pursuance of the powers contained in this Act, shall be entered on the copy of the certificate kept under section 81.
Section 87 empowers the Central Government to make rules, inter alia, to (f) prescribe the circumstances or cases if which certificates of competency may be canceled or suspended.
Section 363 of the Act does not refer to Part VI and the rules for 756 suspension or cancellation of certificates.
This would be consistent with the view that section 363 confines itself to cases of misconduct or incompetency associated with a shipping casualty.
Assuming that it covers a case of a foreign ship on high seas, it would only be to make an inquiry into that charge and not into the shipping casualty itself.
The question then arises, as has been submitted by Mr. Krishnamurthy Iyer, when the entire Act is not applicable to there instant casualty would it be consistent with the extent of applicability of the Act to pick up three words, namely, "in any case" and apply it to the prejudice of the appellant.
Mr Lahiri submits that the certificate of competency issued under the Act by the appropriate authorities under part VI are valuable certificates and if the holder of such a certificate of competency issued under the provisions of Part VI is alleged to have committed misconduct or acts of incompetency there is no reason why an inquiry into that misconduct or incompetency cannot be ordered by the Central Government to a court competent to exercise jurisdiction under section 361 of the Act.
Section 363 does not envisage the court acting on a statement transmitted by the Central Government to conduct a formal investigation into the shipping casualty but only the courts ' making an inquiry into the charge of incompetency or misconduct.
Section 364 provides giving of opportunity to the person to make defence.
Section 365 empowers the court to regulate its proceedings.
Section 369 provides that the court shall, in the case of all investigations or inquiries under this Part, transmit to the Central Government a full report or its conclusions which it has arrived at together with the evidence.
Under sub section (2) of that section where the investigation or inquiry affects master or an officer of a ship other than an Indian ship who holds a certificate under the law of any country outside India, the Central Government may tansmit a copy of the report together with the evidence to the proper authority in that country.
Section 370 deals with power of court as to certificates granted by Central Government.
A certificate can be canceled or suspended under clause (a) by a court holding formal investigation and under clause (v) by a court holding inquiry under this part into the conduct of the master, mate or engineer if the court finds that he is incompetent or has been guilty of any gross act of drunkenness, tyranny or other misconduct or in a case of collision has failed to render such assistance or gave such information as is required by section 348.
Under sub section (3), where the court 757 cancels or suspends a certificate, the court shall forward it to the Central Government together with the report which it is required by this Part to transmit to it.
Thus, this section deals with power of the court while holding a formal investigation into a shipping casualty under clause (a) and while holding an inquiry into the conduct of the master, mate or engineer i.e. otherwise than while holding a formal investigation into shipping casualty.
If the expression "In any case" is interpreted to cover a foreign ship by a foreign master but holding an Indian certificate having a shipping casualty outside the territorial water sections 363 and 370b) may be applicable.
If on the other hand the words "in any case" is not allowed to be interpreted to include such a master of such a ship and in such a casualty it may not be covered.
The question then is whether the instant complaint can be construed as a statement of the Central Government as envisaged in section 363.
One of the requisites of section 363 is that the Central Government must have reason to believe that there are grounds for charging any master etc.
with incompetency or misconduct; and such reason to believe must have been arrived at otherwise than in the course of a formal investigation into the shipping casualty and it is the Central Government who why transmit the statement of a case to a court having jurisdiction under section 361.
We have to examine whether the complaint is ex facie under section 363.
It nowhere mentions that the Central Government had such reason to believe.
It nowhere mentions that it was a transmission of the statement of a case to the court by the Central Government.
It also nowhere mentions that reason to believe had been found otherwise than in the course of a formal investigation into the shipping casualty.
On the other hand in para 2 it says that the complainant is the Principal Officer who is competent person appointed under the Act to complain about the negligence of the accused.
There is no doubt that he is not empowered under section 363.
In para 6 the complaint says that the court under section 363 has got powers to make an inquiry into the charges of incompetency or misconduct of the accused and para 8 mentions: "The inquiry so as to cancel the certificate of the competency of the master namely the accused which has been granted by the Central Government may be recommended under this Act after holding the above said inquiry and thus render justice." Therefore, prima facie the complaint does not disclose the ingredients required under section 363.
We enquired of the respondents as to whether there have been earlier instances of such an inquiry having ever been made; and the 758 answer is in the negative.
We feel that had such interpretation been given earlier the Act being an old one of 1958, some instances ought to have been available.
However, the instant appeal is from an order of the High Court refusing to quash the complaint and the proceedings.
Quashing of the complaint could have been done, if taken on its face value it failed to disclose any ingredient of the offence.
The High Court found as fact that the appellant had two certificates issued under section 78 of the Act from the Director General of Shipping, Calcutta and Bombay respectively.
The High Court correctly observed that section 363 enables the Central Government to transmit a case to the court which has jurisdiction under section 361 to make an inquiry against master, mate or engineer into the charges for incompetency or misconduct otherwise than in the course of formal investigation into shipping casualties but the High Court failed to notice that the complainant himself had no power under section 363.
High Court has not considered the extent of applicability of the Act and whether all ingredients required under section 363 were satisfied in the impugned complaint.
We accordingly set aside the Judgment of the High Court, quash the complaint and the proceedings before the 14th Metropolitan Magistrate, Egmore, Madras 8, but make it clear the it shall still be open for the Central Government to act under section 363 of the Act according to law if it so decides.
Appeal allowed.
R.S.S. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant was the Master of the Merchant ship, M.V. Eamaco, when it sank in the high seas nearly 232 nautical miles away from India.
The appellant was holder of a Master 's certificate issued by the Director General of Shipping, Calcutta.
The ship was owned by a Singapore company and was flying Panamian flag.
The first respondent filed a complaint in the Court of 14th Metropolitan Magistrate, Egmore, Madras against the appellant for initiation of enquiry proceedings under section 363 of the Merchant Shiping Act, 1958 complaining about the negligence of the appellant while he was the Master of the ship and further stating that the shipping casualty had occurred due to sheer negligence and gross in competence of the Master when he failed to launch the life boats and life crafts which resulted in loss of the ship, the cargo and valuable lives of sailors.
The appellant filed a Criminal Miscellaneous Petition in the High Court under section 482 of the Cr.
P.C. stating that the proceedings were by an abuse of process of the court and the Court had no jurisdiction to proceed with the complaint against the appellant when there was no negligence on his part.
The High Court rejected the petition and held that the Shipping Act was applicable to the instant case and the action of the petitioner amounted to sheer negligence and called for investigation and inquiry under the Act.
The appellant has appealed to this Court.
In this court it was inter alia contended on behalf of the appellant that (i) the negligence complained of having occurred in respect of a foreign ship, flying foreign flag, at a place 232 natuical miles away from India, and as such, outside the territorial waters of India, the Act was 743 not applicable; (ii) even if the Act was applicable it would not amount to a shipping casualty as envisaged in part XII of the Act; and (iii) even assuming that Chapter XII applied the complaint could not have been filed by the appellant in the court of the 14th Metropolitan Magistrate, Egmore under Section 363 of the Act.
On behalf of the respondent it was contended that the shipping casualty having occurred within the territorial waters of India which extended up to 200 nautical miles, the Act would be applicable.
It was further submitted that the certificate of competentence issued under the provisions of Part VI of the Act was a valuable certificate and if the holder of such a certificate of competency was alleged to have committed misconduct or acts of incompetency there was no reason why an inquiry into that misconduct or incompetency could not be orderd by the Central Government to a court competent to exercise jurisdiction under section 361 of the Act.
Allowing the appeal, setting aside the judgment of the High Court, and quashing the complaint and the proceedings against the appellants, this Court.
HELD: (1) The ship was not a ship owned wholly by persons each of whom was a citizen of India or by a company satisfying the description under clause (b) or (c) of sub section (2) of Section 2 of the Act.
The ship being a Panamanian ship registered in Panama would come within the purview of the Act only while it was within India including its territorial waters.
[749C D] (2) By a notification of the Government of India dated 15th January, 1977 the exclusive economic zone of India had been extended upto a distance of 200 nautical miles into the sea from the shore and other maritime zones, under the 40th Constitution Amendement Act, 1976.
[750H 751A] (3) The concepts of territorial waters, continental shelf and exclusive economic zone are different concepts and the proclamation of exclusive economic zone to the limit of 200 nautical miles into the sea from the shore baseline would in no way extend the limit of territorial waters which extends to 12 nautical miles measured from the appropriate baseline.
[751B] (4) Admittedly the ship at the time of the casualty was at a place beyond the territorial waters of India and even the exclusive economic zone of India.
If this be the position, the ship would not be covered by the provisions of section 2 of the Act and consequently the provisions of 744 the Act would not apply to the instant casualty.
[751C] (5) The Act itself having not been applicable, Chapter XII being a part of the Act will also not be applicable.
[751D] (6) What is envisaged under section 361 is a formal investigation into a shiping casualty and not a preliminary inquiry.
Similarly section 262 does not envisage inquiring into any charge of incompetency or misconduct otherwise than in the course of the formal investigation into a shipping casualty.
[753H 754B] (7) Prima facie, the complaint does not disclose the ingredients required under section 363 of the Act.
It nowhere mentions that it was a transmission of the statement of a case to the court by the Central Government; it also nowhere mentions that the reason to believe had been founded otherwise than in the course of a formal investigation into the shipping casualty.
On the other hand in para 2 it says that the complainant is the Principal Officer who is competent person appointed under the Act to complain about the negligence of the accused.
There is however no doubt that he is not so empowered under section 363.
[757G,E F] (8) The High Court correctly observed that section 363 enabled the Central Government to transmit a case to the court which had jurisdiction under section 361 to make an inquiry against master, mate or engineer into the charges for incompetency or misconduct otherwise than in the course of formal investigation into shipping casualties, but the High Court failed to notice that the complainant himself had no power under section 363.
[758C D]