judgement:
tition Nos.
896/81, 865 890, 577 591, 592 606, 607 621, 622 628, 629 633, 634 37, 964 88, 544, 545 575, 766 774, 775 776, 902 63, 897 901, 535 37, 532 34, 529 531, 639 and 540 43/81.
(Under Article 32 of the Constitution) H.K. Puri for the Petitioners in WP 896/81.
Vimal Dave for the Petitioners in WP 865 890/81.
A.K. Sen, R.M. Dube and Sarva Mitter for the Petitioners in WPs 540 43/81.
30 Soli J. Sorabjee, S.S. Ray, A.K. Sen and R.K. Jain for the Petitioners in WPs 529 37, 544 575, 577 538, 766 776 and 897 988/81.
S.S. Ray, Soli J. Sorabjeee and R.K. Jain for the Petitioners in WPs 634 37/81.
Lal Narain Sinha, Attorney General, O.P. Rana, and Mrs. section Dikshit for the Respondent (State of U.P.) in WPs 540 43, 529 37, 540 43, 544 77 and 577 638/81.
M K. Banerjee Addl.
and S.K. Gambhir for the State of Madhya Pradesh.
Miss A. Subhashini for Union of India.
The Order of the Court was delivered by FAZAL ALI, J. Having heard counsel for the parties at great length we are satisfied that there is no violation of the fundamental right of the petitioners enshrined in article 19(1)(g) of the Constitution of India nor is article 14 attracted to the facts of the present case.
There is, therefore, no good ground to entertain the petitions.
We would, however, like to add that on the materials placed before us the Government may consider the desirability of adopting such measures as may soften the rigours of the impugned orders which, though not arbitrary or excessive so as to violate article 14 or 19, do merit some consideration by the Government in order to effectuate the policy under which the impugned notification was made.
There are, however, two arguments urged before us which need special mention.
In the first place it was submitted that in the U.P. cases the order impugned imposing a levy on the khandsari produced by the petitioners cannot have any retrospective operation so as to apply to the stock of sugar manufactured prior to the date of the order and would apply only to the sugar produced after the coming into force of the impugned notification.
So far as this argument is concerned we find no substance in the same because it is not a question of retrospectivity of the statute but its actual working.
Once the notification imposing the levy was made it will obviously apply to stock of khandsari produced by the petitioners either before or after the order.
This principle has been clearly laid down by the Constitution Bench of this Court in the case of Trimbak Damodar Raipurkar vs Assaram Hiraman Patil and Ors.(1) where Gajendragadkar, J. speaking for the Court regarding the 31 scope of a Rent Act and Amendment in Rent Act observed as follows: "In this connection it is relevant to distinguish between an existing right and a vested right.
Where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included.
This Court followed the dictum of Buckley, L.J. in the case of West vs Gwynne.(1) In the aforesaid case Buckley, L.J. while construing an amendment in the Act by which the contract was governed observed as follows: "The Act of 1881 thus expressed that in the case of leases made either before or after the commencement of the Act a covenant not to assign without licence should be enforceable just as before. .This section is to be read as if it were contained in the Act of 1881, and is dealing with a subject matter mentioned in the Act of 1881, and as to which there is in that Act a provision that the enactment shall apply to leases made either before or after commencement of the Act." Hardy, M.R. in a concurring judgment while construing second amendment in section 14 of the Conveyancing Act pointed out thus: "In the First place, the language of the section is perfectly general, "in all leases," and there is nothing in the section itself to confine it to leases subsequent to the Act.
Almost every statute affects rights which would have been in existence but for the statute.
" In these circumstances, therefore, once the notification for imposing the levy was made it will naturally apply to the stock of sugar which was with the petitioners irrespective of the fact that it was manufactured before or after the Order.
It was next strongly contended that in fixation of the price of levy sugar the Government has not taken into consideration the fact that the petitioners would undergo a serious loss because the price would not be sufficient even to cover their manufacturing cost.
We 32 are, however, unable to agree with this argument.
The policy of price control has for its dominant object equitable distribution and availability of the commodity at fair price so as to benefit the consumers.
It is manifest that individual interests, however, precious they may be must yield to the larger interest of the community namely, in the instant case, the large body of the consumers of sugar.
In fact, even if the petitioners have to bear some loss there can be no question of the restrictions imposed on the petitioners being unreasonable.
In Shree Meenakshi Mills Ltd. vs U.O.I.(1) this Court observed as follows: "If fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions.
In determining the reasonableness of a restriction imposed by law in the field of industry, trade or commerce, it has to be remembered that the mere fact that some of those who are engaged in these are alleging loss after the imposition of law will not render the law unreasonable." (Emphasis Supplied) Similar view was taken by this Court in the case of Prag Ice and Oil Mills and Anr.
vs Union of India(2) where the Court speaking through Beg, C.J., observed as follows: "It has also to be remembered that the object is to secure equitable distribution and availability at fair prices so that it is the interest of the consumer and not of the producer which is the determining factor in applying any objective tests at any particular time.
" In this view of the matter the primary consideration in the fixation of price would be the interest of the consumers rather than that of the producers.
Moreover, we think that since the petitioners are allowed to sell freely at any rate they like the remaining fifty per cent of sugar (after excluding the fifty per cent which they have to give for levy) as also the produce by the second and third processes, the loss if any caused to the petitioners would be minimal.
Lastly, it was urged that Sub Clause (5) which is Sub Clause (3) in the notification issued by the Madhya Pradesh Government 33 in the impugned notification issued by the U.P. Government is extremely arbitrary inasmuch as by insisting on certificates it deprived the petitioners of the free sale of sugar of the remaining amount of fifty per cent as also the Khandsari produced by second and third processes.
We see some force in this argument but the Attorney General frankly conceded that he will see that no inconvenience on this score is caused to the petitioners.
He gave an undertaking to the Court that he will get the respective Sub Clauses 5 and 3 of the impugned orders of the U.P. and Madhya Pradesh Governments deleted or withdrawn so as to allow the petitioners to sell the remaining amount of sugar as also the stock produced by the second and third processes without any hitch or hindrance.
This will, however, be subject to routine and quick inspection.
In view of this undertaking, therefore we feel that a substantial part of the grievances of the petitioners would be removed.
To be on the safe side, however we allow the stay granted in all the petitions to continue until the provisions of respective Sub Clauses 3 and 5 passed by the State Governments concerned are withdrawn.
We may also emphasise the fact that the amount of sugar taken by the Government through levy should be properly stored and duly protected from rain and rot and be despatched to the various control depots expeditiously in order to ensure a quick and equitable distribution of the commodity amongst the people at moderate rates.
The Government may also consider the desirability of giving a bare minimum hearing to the representative of the owners of the cane crushers in future before fixing the rate at which the levy is taken from the owners so as to see that the owners of the crushers are not put to such great loss that they are completely wiped out from business.
With these observations the petitions are dismissed.
N.K.A. Petitions dismissed.

summary:
On the questions (1) whether an order imposing a levy on Khandsari could have retrospective operation so as to apply to sugar manufactured prior to the date of the order and (2) whether in fixing the price of levy sugar the Government should consider that the price fixed should be sufficient to cover the manufacturing cost.
^ HELD: 1.
It is not the question of retrospectivity of a statute but its actual working that is relevant.
It is settled law that where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included.
Once the notification for imposing the levy was made it will naturally apply to the existing stocks of khandsari with the petitioners irrespective of whether it was manufactured before or after the order.
[31B; 30G] 2.
The policy of price control has for its dominant object equitable distribution and availability of the commodity at fair price to benefit the consumers.
Individual interest, however precious, must yield to the larger interest of the community namely the consumers.
Even if the petitioners have to bear some loss there could be no question of the restrictions imposed on them being unreasonable.
[32 B] The fixation of price would be in the interest of consumers rather than that of the producers.
Moreover since the petitioners were allowed to sell freely at any rate they liked, the remaining 50% of sugar after excluding the 50% which they had to give to levey as also the produce by the second and third processes, the loss, if any, caused to the petitioners, would be minimal.
[32 G]


judgement:
Petition Nos.
1345, 1635/79, 458, 935.
1418 and 1692/80.
Under Article 32 of the Constitution.
Sukumar Ghosh for the Petitioners in WP No. 1345/79.
S.N. Kacker, Govinda Mukhoty and Rathin Das for the Respondent in WP No. 1345/79.
P. Keshva Pillai for the Petitioner in WP No. 1635/79.
Rathin Das for Respondent No. 2 and Ors.
In WP No. 1635/79.
Bimal Kumar Datta, Mrs. L. Arvind and A.K. Sen Gupta for the Petitioner in WP No. 458/80.
S.N. Kacker and Rathin Das for Respondent No. 2 and Ors.
in WP No. 458/80.
S.C. Majumdar, Bimal Kumar Datta, Mrs. L. Arvind and A.K. Sen for the Petitioner in WP No. 935/80.
953 Sripal Singh for the Petitioners in WP No. 1418 of 1980 and 1692/80.
Rathin Das for Respondent Nos. 2 and Ors.
in WP Nos. 935 1418 & 1692/80.
The first plank of argument related to the constitutional validity of the 1955 Act.
The second plank of argument was confined to the validity of the West Bengal Land Reforms (Amendment) Act, 1972 (hereinafter referred to as the 'Amendment Act of 1972 ') which was in the nature of a ceiling Act prescribing a particular ceiling of the area of land which could be retained by the tenant.
So far as the Ceiling Act, viz., the Amendment Act of 1972 is concerned, it is conceded by the counsel for the petitioners that the constitutional validity of the aforesaid Act is clearly concluded by a recent decision of this Court in Waman Rao & Ors.
vs Union of India & Ors.
where a Constitution Bench of this Court rejected the various grounds of challenge in respect of the constitutionality of various ceiling Acts passed by the States concerned.
In view of this decision the learned counsel for the petitioners was fair enough to state that he does not want to press his contention regarding the constitutional validity of the Ceiling Act.
Similarly, the learned counsel for the petitioners fairly conceded that as the 1955 Act, alongwith its amendments upto 1972, has been placed in the Ninth Schedule of the Constitution, it was immune from challenge and was saved by the protective umbrella contained in article 31B of the Constitution.
In this connection, this position was made absolutely clear in Waman Rao 's case (supra) where this Court observed as follows : "Thus, in so far as the validity of Article 31B read with the Ninth Schedule is concerned, we hold that all Acts and Regulations included in the Ninth Schedule prior to April 24, 1973 will receive the full protection of Article 31B.
Those laws and regulations will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution.
" 954 In the instant case, it is clear that the 1955 Act as also the Amendment Act of 1972 were added to the Ninth Schedule, being entry Nos. 60 and 81, prior to April 24, 1973.
In these circumstances, it is manifest that the aforesaid Acts ale completely immune from challenge on the ground that they are violative of any of the rights enshrined in Part III of the Constitution.
The learned counsel for the petitioners, therefore, was fully justified in making the concession before us.
The argument of the learned counsel for the petitioners in W.P. No. 1345 of 1979, which has been adopted by the counsel for the petitioners appearing in other petitions, centres round the validity of (1) The West Bengal Land Reforms (Amendment) Act, 1977 (published in the Gazette Extraordinary on 3 2 1978), and (2) Section 20B, sub sections (3), (4) and (5), of the 1955 Act.
So far as the challenge to the constitutional validity of this section was concerned, it was confined only on the ground that the said sub sections were violative of article 14 of the Constitution of India as being discriminatory and arbitrary.
It was contended that once the land holder, viz., the tenant was given the right of personal cultivation and was permitted to get the land cultivated by a Bargadar on the basis that the bargadar would share half the produce, there was no warrant for not allowing the tenant to resume the land where the bargadar had voluntarily surrendered or abandoned the land.
In order to consider this argument, it may be necessary to examine the status of the bargadar under the 1955 Act.
Section 2(2) defines bargadar thus " 'Bargadar ' means a person who under the system generally known as adhi, barga or bhag cultivates the land of another person on condition of delivering a share of the produce of such land to that person and includes person who under the system generally known as kisani cultivates the land of another person on condition of receiving a share of the produce of such land from that person.
" Section 16 of the 1955 Act provides that where the tenant brings in a bargadar on the land, the produce of the land may be shared in the proportion of 50: 50 or 75; 25.
There are also provisions in the 1955 Act for enforcement of the right of the tenant to get his share of the produce from the bargadar which have not been challenged before us.
It would be seen that section 17 permits the cultivator to terminate the cultivation of the land by a bargadar and resume possession under his own cultivation if the conditions mentioned in clauses 955 (a), (b) and (d) of sub section (1) of section 17 are satisfied.
Clause (d) may be extracted thus: "That the person owning the land requires it bona fide for bringing it under personal cultivation.
" Thus, the cultivator has a right to get back the land for personal cultivation if he requires it for his bona fide use and proves the same to the satisfaction of the authority appointed under section 17(1).
It was argued by the counsel for the petitioners that on a parity of reasoning contained in section 17, there was no reason why where the bargadar had voluntarily surrendered or abandoned the land the facility of cultivating the land personally by the tenant should be denied to him.
Sub sections (3), (4) and (5) of s 20B of the 1955 Act run thus: "(3) If such officer or authority determines that the bargadar had not voluntarily surrendered or abandoned the cultivation of the land which was being cultivated by him as such and what he had been compelled by force or otherwise to surrender or abandon the cultivation of such land, such officer or authority shall restore the bargadar to the cultivation of the land, or where the bargadar is not available or is not willing to be restored to the cultivation of such land, the person whose land was so cultivated shall not resume personal cultivation of the land but he may, with the permission of such officer or authority, get the land cultivated by any person, referred to in section 49, who is willing to cultivate the land as a bargadar.
(4) If such officer or authority determines that the bargadar had voluntarily surrendered or abandoned the cultivation of the land which was cultivated by him as such, the person whose land was being so cultivated shall not resume personal cultivation of such land but he may, with the permission of such officer or authority, have the land cultivated by any person, referred to in section 49, who is willing to cultivate the land as a bargadar.
(5) Any contravention of the provisions of sub section (3) or sub section (4) shall be an offence punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
" Sub sections (3) and (4) prescribe the procedure which is to be adopted where a bargadar voluntarily surrenders or abandons the 956 cultivation of the land.
Under these provisions, the tenant is not allowed to resume personal cultivation but has to get the land cultivated by some other person with the permission of the officer or authority concerned.
Realising the force of the argument, Mr. section N. Kacker, appearing for the State of West Bengal, with his usual persuasiveness submitted that sub sections (3) and (4) are extremely harsh but the rigours of these sub sections can be softened if we read down section 17(d) and interpret it in such a way as to permit a tenant to resume the land under clause (d) of section 17 if the Bargadar voluntarily surrenders or abandons the land.
We are, however, unable to agree with this argument because it will amount not only to distorting and misinterpreting clause (d) but also to causing serious violence to its plain language, which cannot be done It would appear that clauses (a), (b) and (c) of sub section (1) of section 17 of the 1955 Act are the only grounds given on which a tenant can get the land back for his personal cultivation.
The contingency where the bargadar voluntarily surrenders or abandons the land is neither mentioned in clauses (a), (b) and (c) nor is directly or indirectly contemplated by them.
In these circumstances.
if we accept the contention of Mr. Kacker it would amount to introducing something into section 17 which is not there and this is diametrically opposed to the well known canons of interpretation We are, however, constrained to observe that there does not appear to be any logical justification for the provisions of sub sections (3) and (4) of section 20B.
It is understandable that when once the cultivator chooses to bring a bargadar on the land, the interest of the bargadar should be duly protected and has been made heritable.
So far, there can be no objection and such a course is in consonance with the object of the statute.
But when the Bargadar on his own volition surrenders or abandons the land, there is no reason why the tenant should not be allowed to resume cultivation and instead be compelled to get the land cultivated by some other person nominated by the authority concerned under section 49 of the 1955 Act.
This provision therefore appears to us to be extremely harsh and works serious injustice to the rights of the tenants particularly after the ceiling area of the tenant has been considerably reduced by the Amendment Act of 1972.
Thus, the tenant having a small area guaranteed to him for his unit, he should have at least fuller and 957 more effective rights to get that area cultivated by him or even by a bargadar of his choice subject to resuming the same, if the bargadar surrenders or abandons the land.
The amendment doubtless recognises the right of the ownership of the tenant within the ceiling area and yet to deny him the right of resuming cultivation of the land from the bargadar inducted by him after the bargadar voluntarily surrenders or abandons the same and forcing or imposing someone else to cultivate the land on behalf of the tenant appears to be contrary to the very tenor and spirit which sections 17 and 20B of the 1955 Act seem to subserve Unfortunately, however, though the provisions of sub sections (3), (4) [and (5) of section 20B, which is only a penal section] perilously border on arbitrariness and amounts to serious curbs on the fundamental right of the cultivator to pursue his occupation, we cannot however strike down these provisions because they are contained in the Amendment Act of 1972 which has been placed in the Ninth Schedule prior to April 24, 1973, and therefore fall within the protective umbrella and are immune from challenge.
It will, however, be for the legislature which is the best judge of the needs of its people to give a suitable relief to the tenant and soften the rigours of the harsh provisions of sub sections (3), (4) and (5) of section 20B on the lines indicated by us.
With these observations, the arguments of the learned counsel for the petitioners on this ground are overruled.
We now come to the second plank of the argument which comprises the challenge to the proviso and the Explanation to section 2 of the 1955 Act.
This provision having been brought into force after the 24th of April, 1973, falls beyond the ambit of article 31B and is not covered by the protective umbrella of that Article.
In these circumstances, the challenge to the constitutionality of this provision could be entertained by us.
Mr. Kacker did not controvert this position.
The impugned proviso and the Explanation which were added to clause (8) of section 2 by the West Bengal Land Reforms (Amendment Act, 1977, may be extracted thus: "Provided that such person or member of his family resides for the greater part of the year in the locality where the land is situated and the principal source of his income is produced from such land.
Explanation The term "family" shall have the same meaning as in clause (c) of section 14K" It was submitted that the proviso insists that the cultivator or member of his family must reside in the locality where the land is 958 situate for the greater part of the year and thus deprives the petitioners of their right guaranteed to them under Art 19(1) (e) and (g) of the Constitution inasmuch as it compels the petitioner to reside in the village and prevents them from either going to or residing in any other place in India.
The second ground of challenge to the constitutionality of the proviso was that it places a serious curb on the right of the petitioners to carry on their occupation other than agriculture.
As regards the first argument, we are unable to agree with the learned counsel because the object of the proviso is to safeguard the interest of the tenant himself so that he may give whole hearted attention to the personal cultivation of the land which has been secured for him by virtue of a valuable piece of agrarian reform.
If the tenant is allowed to go out of the village and reside at other places then the benefit conferred by the 1955 Act cannot be fully utilised by the tenant and would frustrate the very purpose for which agrarian reforms are meant.
Moreover, the land is given to the tenant as the tiller of the soil fundamentally for the reason that cultivation is his main source of sustenance as is mentioned in the proviso itself.
If, therefore, the principal source of sustenance of the tenant is agriculture it would be futile for the tenant to say that he should be permitted to follow other avocations or occupations in the main which will defeat the very purpose for which the proviso has been enacted.
The proviso does not debar him from following any other occupation but once a tenant wants to have the land to himself for personal cultivation he must elect whether to pursue the profession of cultivation or some other occupation.
Thus, even though there is some amount of restriction both on the right of the petitioners to reside or follow any other occupation, such a restriction cannot be said to be arbitrary or unreasonable.
It is well settled that where a restriction is imposed by the legislature in public interest in order to advance a particular purpose or carry out the dominant object.
such a restriction is undoubtedly a reasonable one within the meaning of clauses (4) and (5) of article 19 of the Constitution.
Moreover, in the instant cast, the restriction does not amount to complete deprivation of the right of the tenant to reside elsewhere because the words 'for the greater part of the year ' leave sufficient scope to the tenant to reside elsewhere for a part of the year if he so desires.
Furthermore, the Explanation adopts the definition of "family" which is the same as defined in section 14K of the 1955 Act which runs thus: "(i) himself and his wife, minor sons, unmarried daughters, if any, 959 (ii) his unmarried adult son, if any, who does not hold any land as a raiyat, (iii) his married adult son, if any, where neither such adult son nor the wife nor any minor son or unmarried daughter of such adult son holds any land as a raiyat, (iv) widow of his predeceased son, if any, where neither such widow, nor any minor son or unmarried daughter of such widow holds any land as a raiyat, (v) minor son or unmarried daughter, if any of his pre deceased son, where the widow of such predeceased son is dead any minor son or unmarried daughter of such predeceased son does not hold any land as a raiyat, but shall not include any other person.
" Thus, it is not necessary that the tenant should himself reside in the village for the greater part of the year and it is sufficient if any member of the family which includes his wife, unmarried adult, married adult, minor son and so on, remains in the village and this would amount to substantial compliance of the conditions of the proviso.
The restriction, therefore, is partial and in public interest and bears a close nexus with the object of the 1955 Act, viz, to achieve agrarian reforms.
The fundamental rights enshrined in article 19 of the Constitution are not absolute and unqualified but are subject to reasonable restrictions which may be imposed under sub clauses (4) and (5) of article 19.
Whenever a complaint of violation of fundamental rights is made the Court has to determine whether or not the restrictions imposed contain the quality of reasonableness.
In assessing these factors a doctrinaire approach should not be made but the essential facts and realities of life have to be duly considered.
Our Constitution aims at building up a socialist state and the establishment of an egalitarian society and if reasonable restrictions are placed on the fundamental rights in public interest, they can be fully justified in law.
The principles laying down the various tests of reasonableness have been very aptly enunciated in the case of State of Madras vs V.G. Row which is almost the locus classicus on the subject in question.
In that case Shastri, C.J, speaking for the Court observed as follows : "It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be 960 applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.
" The case has been consistently followed by later decisions of this Court right uptodate Another important factor to consider the reasonableness of restrictions is if the restrictions imposed are excessive or dispreportionate to the needs of a particular situation.
Further, if the restrictions are in implementation of the directive principles of the Constitution the same would be upheld as being in public interest because the individual interest must yield to the interest of the community at large for only then a welfare state can flourish.
Applying these tests to the facts of the present case we are satisfied that the restrictions contained in the impugned proviso cannot be said to be unreasonable for the following reasons: The dominant object of the proviso is to abolish the age old institutions of absentee land holders by insisting that the cultivator to whom land is allotted must give full and complete attention to the soil and as a result of which there will be a maximum utilisation of the agricultural resources which would increase production.
Under the Amendment Act of 1972 an adult unmarried person is entitled to hold an area up to 2.50 hectares which is equal to 6.72 acres, a tenant with a family of two or more is entitled to hold 12.36 hectares and a tenant having a family of five or more is entitled to hold 7 hectares which is equal to 12.23 acres being the maximum area permissible.
Thus, the area left to the tenant is quite vast and appreciable and if the tenant wants to bring this area under cultivation in right earnest it would hardly leave him time to quit the village and pursue other avocations of life.
It is obvious that the tenant has to remain in the village for the purpose of cultivating the lands, sowing the seeds, growing it and harvesting it.
These processes would doubt less require the presence of the tenant for a greater part of the year which is what the proviso predicates.
If the 961 tenant is permitted to leave the village for more than half the year then the very purpose of giving such a vast area for cultivation to a tenant will be foiled.
Moreover, the proviso merely insists that the tenant should remain in the village or its periphery for "greater part of the year" which appears to be not only reasonable but absolutely essential if the land has to be cultivated in a scientific manner in order to yield the maximum possible production, which would result in better and equitable distribution of agricultural products for the use of the people of the country.
Another aspect of the proviso is that the land is given to the tenant only if his main source of sustenance is from agriculture so that the land may be reserved only for the tiller of the soil and none else.
Hence, the restrictions imposed, therefore, by the proviso are undoubtedly in public interest and in consonance with the concept of promoting and accelerating agrarian reforms which is the prime need of the hour.
For these reasons, therefore, the challenge that the proviso violates article 19 (1) (e) and (g) must fail.
The last contention put forward by the petitioners was that the proviso is also violative of article 14 inasmuch as it is extremely arbitrary and discriminatory.
We are unable to uphold the challenge on the ground that the proviso violates article 14 because we do not find any element of arbitrariness in the proviso.
If the statute insists that the tiller of the soil must remain in the village for a greater part of the year in order to cultivate the land which has been given to him and thereby increase the produce.
Of the land, no serious prejudice is caused to the tenant because that is the purpose for which he has himself secured the land.
Secondly, as the proviso operates equally to all the tenants governed by it no question of discrimination at all arises.
Thus, this argument also is wholly untenable and must fail.
For the reasons given above, we hold that both the Act of 1955, including the Amendment Act of 1972, and the proviso introduced a by the Amendment Act of 1977 are constitutionally valid.
As we have made certain observations regarding the harshness of the provisions of sub sections (3), (4) and (5) of section 20B of the 1955 Act, let a copy of this judgment be sent to the Hon 'ble Chief Minister of West Bengal.
The petitions are dismissed without any order as to costs.

dataset_name: IN-Abs

summary:
The West Bengal Land Reforms Act, 1955 permitted a tenant (land holder) to get the land cultivated by a bargadar, on the basis that the bargadar would share tho produce, and the Act contained provisions for enforcement of the right of the tenant to get such share.
Section 17 permitted the tenant to terminate the cultivation of the land by a bargadar and resume possession for his own cultivation on certain contingencies, one of them being that he requires it bona fide for personal cultivation.
The West Bengal Land Reforms (Amendment) Act, 1972 provided for the reduction in the ceiling area of the tenant, and incorporated sub sections (3), (4) and (5) of section 20B of the 1955 Act, which provided that where the bargadar had voluntarily surrendered or abandoned the cultivation of the land, the facility of cultivating the land personally by the tenant should be denied to him.
The West Bengal Land Reforms (Amendment) Act 1977 inserted a Proviso and an Explanation to clause (8) of section 2 of the 1955 Act, which provided that a person or member of his family should reside in the greater part of the year in the locality where the land is situated and the principal source of his in come is derived from the land and that 'family ' shall have the same meaning as in clause (c) of section 14.
The petitioners in their writ petitions to this Court assailed: (1) The West Bengal Land Reforms Act, 1955 as also amendments made to the said Act upto 1977, contending that the 1955 Act was constitutionally invalid and that the Amendment Act of 1972 was in the nature of a Ceiling Act prescribing a particular ceiling for the area of the land which should be retained by the tenant and that sub sections (3), (4) and (5) of section 20B of the 1955 Act were violative of Article 14 of the Constitution, as being discriminatory and arbitrary Once the tenant was given the right of personal cultivation and was permitted to get the land cultivated by a bargadar on the basis that the bargadar would share the produce, there was no warrant for not allowing the tenant to resume the land where a bargadar had voluntarily surrendered or abandoned the land and to deny the right of cultivating the land personally by the tenant, and (2) the Proviso 951 and the Explanation to section 2 of the 1955 Act deprive the petitioners of their rights guaranteed under Article 19(1)(e) and (g) of the constitution in as much as it prevents them from either going to or residing in any other place in India and places a serious curb on their right to carry on an occupation other than agriculture.
On behalf of the respondents it was submitted that the rigour of sub sections (3) and (4) can be softened if clause (d) of section 17 is read down and interpreted in a way as to permit a tenant to resume the land under clause (d) of section 17 if the bargadar voluntarily surrenders or abandons the land.
Dismissing the writ petitions: ^ HELD: 1 (i).
The West Bengal Land Reforms Act, 1955 including the Amendment Act of 1972 and the proviso introduced by the Amendment Act of 1977 are constitutionally valid.
[961 G] In the instant case the 1955 Act and the Amendment Act of 1972 having been added to the Ninth Schedule as Entry Nos. 60 and 81 prior to April 24, 1973, are immune from challenge as being violative of Part III of the Constitution.
[954 A] Waman Rao & Ors.
vs Union of India & Ors., AIR 1981 SC 271, referred to.
(ii) Clauses (a), (b) and (c) of sub section (1) of section 17 of the 1955 Act are the only grounds on which a tenant can get the land back for his personal cultivation.
The contingency where the bargadar voluntarily surrenders or abandons the land is neither mentioned, nor directly or indirectly contemplated by them.
The contention of the respondent cannot be accepted for it would introduce something into section 17 which is not there and this is diametrically opposed to the well known canons of interpretation.
[956 D E] (iii) There is no logical justification for the provisions of sub sections (3) and (4) of section 20B. When once the cultivator chooses to bring a bargadar on the land the interest of the bargadar is protected and has been made heritable.
But when the bargadar on his own volition surrenders or abandons the land, there is no reason why the tenant should not be allowed to resume cultivation and instead be compelled to get the land cultivated by some other person nominated by the authority concerned under section 49 of the 1955 Act.
This provision, therefore, appears to be extremely harsh and works serious injustice to the rights of the tenants particularly after the ceiling area of the tenant has been considerably reduced by the Amendment Act of 1972.
[956 E G] (iv) Though the provisions of sub sections (3), (4) and (5) of section 20B a perilously border on arbitrariness and amount to serious curbs on the fundamental right of the cultivator to pursue his occupation, they cannot be struck down because they are contained in the Amendment Act of 1972 which has been placed in the Ninth Schedule prior to April 24, 1973.
It will, however, be for the legislature which is the best judge of the needs of its people to give, a suitable relief to the tenant and soften the rigours of these harsh provisions.
[957 C D] (2) The object of the proviso is to safeguard the interest of the tenant himself so that he may give wholehearted attention to the personal cultivation of 952 the land.
The proviso does not debar him from following any other occupation but once a tenant wants to have the land to himself for personal cultivation he must elect whether to pursue the profession of cultivation or some other occupation.
Thus, even though there is some amount of restriction both on the right of the petitioners to reside or follow any other occupation, such a restriction cannot be said to be arbitrary or unreasonable.
[958 C, E F] In the instant case the restriction does not amount to complete deprivation of the right of the tenant to reside elsewhere because the words for the greater part of the year ' leave sufficient scope to the tenant to reside elsewhere for a part of the year if he so desires.
It is not necessary that the tenant should himself reside in the village for the greater part of the year.
It is sufficient if any member of the family which includes his wife, unmarried adult, married adult, minor son and so on remains in the village.
This would amount to substantial compliance of the conditions of the proviso.
The restriction, therefore, is partial and in public interest.
[958 G, 959 D] (3) Whenever a complaint of violation of fundamental rights is made the court has to determine whether or not the restrictions imposed contain the quality of reasonableness.
In assessing these factors a doctrinaire approach should not be made but the essential facts and realities of life have to be duly considered.
Our Constitution aims at building up a socialist state and the establishment of an egalitarian society and if reasonable restrictions are placed on the fundamental rights in public interest, they can be fully justified in law.
[959 F G] State of Madras vs V.G. Row, ; , referred to.
(4) As the proviso operates equally to all the tenants governed by it no question of discrimination arises.
[961 F]


judgement:
Civil Appeal No. 3563 of 1979.
Appeal by special leave from the Award dated 9 7 1978 of the Presiding Officer Central Government.
Industrial Tribunal Cum 886 Labour Court, New Delhi in I.D. No. 90 of 1977 published in Gazette of India on 11 8 1979.
M.K. Ramamurthi, and Romesh C. Pathak for the Appellant.
Dr. Anand Parkash, Adarsh Kumar, Mrs. Laxmi Anand Parkash, and Jagat Arora for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Santosh Gupta, the appellant Workman (a woman), was employed in the State Bank of Patiala, the Mall, Patiala, from July 13, 1973, till August 21, 1974, when her services were terminated.
Though there were some breaks in service for a few days, those breaks are not relevant for the purpose of deciding this case though we may have to advert to them in another connection.
Despite the breaks, the workman had admittedly worked for 240 days in the year preceding August 21, 1974.
According to the workman the termination of her services was 'retrenchment ' within the meaning of that expression in section 2(OO) of the , since it did not fall within any of the 3 excepted cases mentioned in section 2(OO).
Since there was 'retrenchment ', it was bad for non compliance with the provisions of section 25 F of the .
On the other hand the contention of the management was that the termination of services was not due to discharge of surplus labour.
It was due to the failure of the workman to pass the test which would have enabled her to be confirmed in the service.
Therefore, it was not retrenchment within the meaning of section 2(OO) of the . section 25 F prescribes that no workman employed in any industry who has been in continuous service for not less than one year shall be retrenched by the employer until (a) the workman has been given one month 's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; (b) the workman has been paid at the time of retrenchment, compensation which shall be equivalent to fifteen days average pay for every completed year of continuous service or any part thereof in a excess of six months; and(c) notice in the prescribed manner is served on the appropriate Government or any such authority as may be specified by the appropriate Government by notification in the official Gazette.
There is a proviso to clause (a) which dispenses with the necessity for the notice contemplated by the clause if the retrenchment is under an agreement which specifies the date for the termination of service.
887 The expression retrenchment is specially defined by section 2(OO) of the Act and is as follows: "2(OO) 'retrenchment ' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (c) termination of the service of a workman on the ground of continued ill health;" In Hariprasad Shivshankar Shukla vs A. D. Divikar, the Supreme Court took the view that the word 'retrenchment ' as defined in section 2(OO) did not include termination of services of all workmen on a bonafide closure of an industry or on change of ownership or management of the industry.
In order to provide for the situations which the Supreme Court held were not covered by the definition of the expression 'retrenchment ', the Parliament added section 25 FF and section 25 FFF providing for the payment of compensation to the workmen in case of transfer of undertakings and in case of closure of undertakings respectively.
If the definition of 'retrenchment ' is looked at unaided and unhampered by precedent, one is at once struck by the remarkably wide language employed and particularly by the use of the words "termination. for any reason whatsoever".
The definition expressly excludes termination of service as a 'punishment inflicted by way of disciplinary action '.
The definition does not include, so it expressly says, voluntary retrenchment of the workman or retrenchment of the workman on reaching the age of superannuation or termination of the service of the workman on the ground of continuous ill health.
Voluntary retrenchment of a workman or retrenchment of the workman on reaching the age of superannuation can hardly be described as termination, by the employer, of the service of a workman.
Yet, the Legislature took special care to mention that they were not included within the meaning of "termination by the employer of the service of a workman for any reason whatsoever:.
This, in our opinion, emphasizes the broad interpretation to 888 be given to the expression 'retrenchment '.
In our view if due weight is given to the words "the termination by the employer of the service of a workman for any reason whatsoever" and if the words 'for any reason whatsoever ' are understood to mean what they plainly say, it is difficult to escape the conclusion that the expression 'retrenchment ' must include every termination of the service of a workman by an act of the employer.
The underlying assumption, of course, is that the undertaking is running as an undertaking and the employer continues as an employer but.
where either on account of transfer of the undertaking or on account of the closure of the undertaking the basic assumption disappears, there can be no question of 'retrenchment ' within the meaning of the definition contained in, section 2(OO).
This came to be realised as a result of the decision of this Court in Hariprasad Shivshanker Shukla vs A.D. Divikar (Supra).
The Parliament then stepped in and introduced 25 FF and 25FFF by providing that compensation shall be payable to workmen in case of transfer or undertaking or closure of undertaking as if the workmen had been retrenched.
We may rightly say that the termination of the service of a workman on the transfer or closure of an undertaking was treated by Parliament as 'deemed retrenchment '.
The effect was that every case of termination of service by act cf employer even if such termination involved was a consequence of transfer or closure of the undertaking was to be treated as 'retrenchment ' for the purposes of notice, compensation etc.
Whatever doubts might have existed before Parliament enacted 25FF and 25FFF about the width of 25F there cannot now be any doubt that the expression 'termination ' of service for any reason whatsoever now covers every kind of termination of service except those not expressly included in section 25F or not expressly provided for by other provisions of the Act such as Ss. 25FF and 25FFF.
In interpreting these provisions i.e. 25F, 25FF and 25FFF one must not ignore their object.
The manifest object of these provisions is to so compensate the workman for loss of employment as to provide him the wherewithal to subsist until he finds fresh employment.
The non inclusion of 'voluntary retrenchment of the workmen, retirement of workmen on reaching the age of superannuation, termination or the service of a workman on the ground of continued ill health ' in the definition of 'retrenchment clearly indicate and emphasise what we have said about the true object of 25F, 25FF and 25FFF and the nature of the compensation provided by those provisions.
The nature of retrenchment compensation has been explained in Indian Hume Pipe Co. Ltd. vs the Workmen as follows : 889 "As the expression 'retrenchment compensation indicates it is compensation paid to a workman on his retrenchment and it is intended to give him some relief and to soften the rigour of hardship which retrenchment inevitably causes.
The retrenched workmens, suddenly and without his fault, thrown on the street and has to face the grim problem of unemployment.
At the commencement of his employment a workmen naturally expects and looks forward to security of service spread over a long period but retrenchment destroys his hopes and expectations.
The object of retrenchment compensation is to give partial protection to the retrenched employee and his family to enable them to tide over the hard period of unemployment".
Once the object of 25F, 25FF and 25FFF is understood and the true nature of the compensation which those provisions provide is realised, it is difficult to make any distinction between termination of service for one reason and termination of service for another.
Dr. Anand Prakash wants us to hold that notwithstanding the comprehensive language of the definition of "retrenchment" in section 2 (OO) the expression continues to retain its original meaning which was, according to the counsel, discharged from service on account of 'surplusage '.
It is impossible to accept his submission.
If the submission is right, there was no need to define the expression 'retrenchment ', and in such wide terms.
We cannot assume that the Parliament was undertaking an exercise in futility to give a long winded definition merely to say that the expression means what it always meant.
Let us now examine the precedents of this Court to discover whether the true position in law is what has been stated by us in the previous paragraphs.
The earliest of the cases of this Court to which our attention was invited was Harprasad Shivashankar Shukla vs A. D. Divikar (supra).
That was a case which was decided before Ss. 25FF and 25FFF were brought on the statute book.
In fact it was as a consequence of that decision that the had to be amended and these two provisions came to be introduced into the Act.
The question which arose for decision in that case was stated by the learned judges themselves as follows: "The question, however, before us is does this definition merely give effect to the ordinary, accepted notion of retrenchment in an existing or running industry by 890 embodying the notion in apt and readily intelligible words or does it go so far beyond the accepted notion of retrenchment as to include the termination of services of all workmen in an industry when the industry itself ceases to exist on a bonafide closure or discontinuance of his business by the employer" The question so stated was answered by the learned judges in the following way : "In the absence of any compelling words to indicate that the intention was even to include a bonafide closure of the whole business, it would, we think, be divorcing the expression altogether from the context to give it such a wide meaning as is contended for by learned counsel for the respondents. it would be against the entire scheme of the Act to give the definition clause relating to retrenchment such a meaning as would include within the definition termination of service of all workmen by the employer when the business itself ceases to exist".
It is true that there are some observations which, if not properly understood with reference to the question at issued seemingly support the submission of Dr. Anand Prakash that 'termination of service for any reason whatsoever ' means no more and no less than discharge of a labour force which is a surplus age.
The misunderstanding of the observations and the resulting confusion stem from not appreciating (1) the lead question which was posed and answered by the learned judges and (2) that the reference to 'discharge on account of surplus age ' was illustrative and not exhaustive and by way of contrast with discharge on account of transfer or closure of business.
Management of M/s Willcox Buckwell India Ltd. vs Jagannath and Ors.
and Employers in Relation to Digwadih Colliery vs Their Workmen were both cases where the termination of the Workman from service was on account of "surplusage" and, therefore, the cases were clear cases of retrenchment.
They do not throw any light on the question now at issue.
In State Bank of India vs Shri N. Sundaramoney a Bench of three judges of this Court consisting of Chandrachud J. (as be then was), Krishna Iyer, J., and Gupta, J., considered the question whether section 25F of the was attracted to a case where the order of appointment carried an automatic cessation of service, 891 the period of employment working itself out by efflux of time and not by an act of employer, Krishna Iyer, J. who spoke for the Court observed.
'Termination . for any reason whatsoever ' are the key words.
Whatever the reasons every termination spells retrenchment.
So the sole question is has the employee 's service been terminated ? Verbal apparel apart, the substance is decisive: A termination takes place where a term expires either by the active step of the master of the running out of the stipulated term.
To protect the weak against the strong this policy of comprehensive definition has been effectuated.
Termination embraces not merely the act of termination by the employer but the fact of termination howsoever produced.
True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract section 25F and automatic extinguishment of service be effluxion of time cannot be sufficient.
Words of multiple import have to be winnowed judicially to suit the social philosophy of the statute.
So screened we hold that the transitive and intransitive senses are covered in the current context.
Moreover, an employer terminates employment not merely by passing an order as the service runs.
He can do so by writing a composite orders one giving employment and the other ending or limiting it.
A separate, subsequent determination is not the sole magnetic pull of the provision.
A preemptive provision to terminate is struck by the same vice as the post appointment termination.
Dexterity of diction cannot defeat the articulated conscience of the provision".
In Hindustan Steel Ltd. vs the Presiding Officer, Labour Court, Orissa and Ors.
the question again arose whether termination of service by efflux of time was termination of service within the definition of retrenchment in section 2 (OO) of the .
Both the earlier decisions of the Court in Hariprasad Shivshankar Shukla vs A.D. Divikar and State Bank of India vs section Sundaramoney (supra) were considered.
There was also a request that N. Sundaramoney 's case conflicted with the decision in Hariprasad Shivshankar Shukla vs A. D. Divikar and therefore required reconsideration.
A Bench of three judges of this Court consisting of Chandrachud J (as he then was), Goswami J and Gupta J held that there was nothing in Huriparsad Shivshankar Shukla vs A.D. Divikar which was inconsistent with the decision in N. Sundaramoney 's case.
They held that the decision in 892 Hariparsad Shivshankar 's case that the words "for any reason whatsoever" used in the definition of retrenchment would not include a bonafide closure of the whole business because it would be against the entire scheme of the Act.
The learned judges then observed that, on the facts before them to give full effect to the words "for any reason whatsoever" would be consistent with the scope and purpose of section 25 of the and not contrary to the scheme of the Act.
In Delhi Cloth and General Mills Ltd. vs Shambhunath Mukharjee and Ors.
Goswami, Shinghal and Jaswant Singh JJ, held that striking off the name of a workman from the rolls by the management was termination of the service which was retrenchment within the meaning of section 2(OO) of the .
Dr. Anand Prakash, cited before us the decision of a Full Bench of the Kerala High Court in L. Rober D 'Souza vs Executive Engineer, Southern Railway and Anr.
and some other cases decided by other High Courts purporting to follow the decision of this Court in Hariparsad Shivshankar Shukla vs A.D. Divikar 's case, Shukla 's case, we have explained.
The ratio of Shukla 's case in fact, has already been explained in Hindustan Steel Ltd., vs the Presiding Officer, Labour Court Orissa and Ors.
The decisions in Hindustan Steel Ltd. vs the Presiding Officer, Labour Court Orissa and Ors., and State Bank of India vs N. Sundaramoney have, in our view, properly explained Shukla 's case and have laid down the correct law.
The decision of the Kerala High Court in L. Robert D 'Souza vs Executive Engineer Southern Railway & Anr.
and the other decisions of the other High Courts to similar effect viz.
The 'Managing Director, National Garages vs J. Gonsalve, Goodlas Nerolac Paints vs Chief Commissioner, Delhi and Rajasthan State Electricity Board.
vs Labour Court, are, therefore, over ruled.
We hold, as a result of our discussion, that the discharge of the workman on the ground she did not pass the test which would have enabled her to be confirmed was 'retrenchment ' within the meaning of section 2(OO) and, therefore, the requirements of section 25F had to be complied with.
The order of the Presiding Officer, Central Govt.
Industrial Tribunal cum Labour Court, new Delhi, is set aside and the appellant is directed to be reinstated with full back wages.
The appellant is entitled to her cost.
S.R. Appeal allowed.

summary:
The appellant was employed in the State Bank of Patiala, The Mall, Patiala from July 13, 1973 till August 21, 1974, when her services were terminated.
Despite some breaks in service for a few days, the appellant had admittedly worked for 240 days in the year preceding August 21, 1974.
According to the workman, the termination of her service was "retrenchment" within the meaning of that expression in Section 2(OO) of the , since it did not fall within any of the excepted cases mentioned in Section 2(OO).
Since there was "retrenchment", it was bad for non compliance with the provisions of section 25 F of the .
On the other hand, the contention of the management was that the termination of services was not due to discharge of surplus labour.
It was due to the failure of the workman to pass the test which would have enabled him to be confirmed in the service.
Therefore, it was not retrenchment within the meaning of section 2(OO) of the .
The Presiding Officer, Central Government, Industrial Tribunal cum Labour Court, accepted the management 's contention and decided against the workman appellant.
Hence the appeal by special leave.
Allowing the appeal, the Court ^ HELD: (i) The discharge of the workman on the ground that she did not pass the test which would have enabled him to be confirmed was "retrenchment" within the meaning of section 2(OO) and, therefore, the requirements of section 25F had to be complied with.
[892 F G] (ii) Section 2(OO) of the uses a wide language particularly the words "termination. for any reason whatsoever".
The definition "retrenchment" expressly excludes termination of service as a "punishment inflicted by way of disciplinary action".
It does not include, voluntary retrenchment of the workman or retrenchment of the workman on reaching the age of superannuation or termination of the service of the workman on the ground of continuous ill health.
The Legislature took special care to mention that these were not included within the meaning of "termination by the employer of the service of a workman for any reason whatsoever".
This emphasises the broad interpretation to be given to the expression "retrenchment".
[887 E H, 888 A] 2.
If due weight is given to the words "the termination by the employer of the service of a workman for any reason whatsoever" and if the words 'for any reason whatsoever" are understood to mean what they plainly say, it is difficult to escape the conclusion that the expression 'retrenchment ' must include every termination of the service of a workman by an act of the employer.
The underlying assumption, of course, is that the undertaking is running as an under 885 taking and the employer continues as an employer but where either on account of transfer of the undertaking or on account of the closure of the undertaking the basic assumption disappears, there can be no question of 'retrenchment ' within the meaning of the definition contained in section 2(OO) of the Act.
[888 A C] Hariprasad Shivshankar Shukla vs A.D. Divakar [1957] SCR 121: applied.
By introducing section 25 FF and Section 25 FFF, Parliament treated the termination of the service of a workman on the transfer or closure of an undertaking as "deemed retrenchment".
The effect was that every case of termination of service by act or employer even if such termination was a consequence of transfer or closure of the undertaking was to be treated as 'retrenchment ' for the purposes of notice, compensation etc.
" The expression "termination of service for any reason whatsoever" now covers every kind of termination of service except those not expressly included in section 25F or not expressly provided or by other provisions of the Act as 25 FF And 25 FFF.
[888 C F] 4.
The manifest object of Section 25 FF and section 25 FFF is to so compensate the workman for loss of employment as to provide him the wherewithal to subsist until he finds fresh employment.
The non inclusion of 'voluntary retirement of the workmen, retirement of workmen, on reaching the age of superannuation, termination of the service of a workman, on the ground af continued ill health ' in the definition of 'retrenchment ' clearly indicate and emphasise the true object of 25F, 25 FF and 25 FFF and the nature of the compensation provided by those provisions." [888 F H] Indian Hume Pipe Co. Ltd. vs The Workman ; followed.
The submission that notwithstanding the comprehensive language of the definition of retrenchment ' in section 2(OO) the expression continues to retain its original meaning, namely, discharge from service on account of surplus age is not correct.
It cannot be assumed that Parliament was undertaking an exercise in futility to give a long winded definition merely to say that the expression means what it always meant.
[889 D E] Hariprasad Shivshankar Shukla vs A.D. Divakar [1957] SCR 121, Hindustan Steel Ltd. vs The Presiding Officer, Labour Court Orissa & Ors. ; State Bank of India vs Shri N. Sundaramoney ; Delhi Cloth and General Mills Ltd. vs Shambunath Mukherjee & Ors.
; ; explained and followed.
Management of M/s Willcose Buckwell India Ltd. vs Jagannath & Ors.
AIR 1974 S.C. 1164; Employees in Relation vs Digmoden Colliery vs Their Workmen ; ; distinguished.
L. Robert D 'Souza vs Executive Engineer, Southern Railway and Anr.
(1979) KLJ Kerala 211; The Managing Director, National Garage vs J. Gonsalves (1962) KLJ 56.
Goodlas Nerolac Paints vs Chief Commissioner, Delhi ; Rajasthan State Electricity Board vs Labour Court ; over ruled.


judgement:
tition Nos.
5600, 5601, 5615, 5689 5697 and 6283 6307/1980.
(Under Article 32 of the Constitution) Soli J. Sorabjee, O.N. Tikku, E.C. Aggarwala, M.L. Bhatt, R. Satish, and V.K. Pandita for the Petitioners in W.Ps.
5600 01,5615 & 5689 97/80.
M. K. Ramamurthy, Miss R. Vaigai, Joginder Singh and J. Ramamurty for the Petitioners in WPs.
6283 6307/80.
S.N. Kacker and Altaf Ahmed for the Respondents in all the Writ Petitions.
The Judgment of the Court was delivered by PATHAK J.
The petitioner challenges the admission of a number of candidates to the M.B.B.S. course in the Government Medical College Srinagar for the session 1980 81.
The petitioner, who had also applied for admission, was denied it.
She contends that the criteria adopted in granting admission, is discriminatory, unreasonable and void.
The Principal, Government Medical College, Srinagar invited applications by 3rd April, 1980 for admission to the M.B.B.S. course for the session 1980 81, and the notice specified the qualifying examinations of the Board of Secondary Education, Kashmir, or any other equivalent Board or University which constituted the basis of eligibility.
The manner and procedure governing the eligibility for admission had been set forth in a Government order 37 of 3rd April, 1978, which laid down that a Selection Committee constituted by the Government would determine the inter se merit of eligible candidates on the basis of an interview for judging their (a) physical fitness, (b) personality, (c) aptitude, (d) general knowledge and (e) general intelligence.
This Government order was modified by a subsequent Government order dated 23rd June, 1980 and in the result eligible candidates were now required to appear not only in the viva voce examination but also in an objective test.
These two tests along with merit in the qualifying examination of the Board or University constituted the three elements which together combined to form a basis for Selection.
The qualifying examination carried 35 marks, the objective test was allotted 35 marks and the viva voce examination was assigned 30 marks.
Besides the examination base constituted by the aforesaid three criteria, the selection was also determined by a distribution of the seats into three distinct divisions.
Of the total number of seats 50% were earmarked for being filled on the basis of open merit, 25% were reserved for candidates from Scheduled Castes and other reserved categories, one of which was broadly described as "socially and educationally backward classes" and included candidates from (a) areas adjoining actual line of control, and (b) area known as bad pockets including Ladhak.
After selection had been made as above the remaining 25% of the seats were to be filled "on the basis of inter se merit to ensure rectification of imbalance in the admission for the State, if any, so as to give equitable and uniform treatment to those parts".
It was also recited that in case there was no "visible imbalance", the seats earmarked under that head were to be distributed among further "open merit" candidates.
On 27th June, 1974, the percentage of seats reserved for the different categories was refixed, so that 60% of the seats were now earmarked for admission on the basis of "open merit", 20% for distribution among candidates from the Scheduled Castes and other reserved categories including socially and educationally backward classes, and the remaining 20% of the seats were earmarked for "ensuring rectification of imbalances".
Still another order dated 21st April, 1976 reduced the reservation for removing regional imbalances from 20% to 18%.
The selection of candidates for admission to the Government Medical College, Jammu for the academic year 1979 80 was challenged in this Court in Nishi Maghu vs State of Jammu and Kashmir(1) 38 and the Court held that "the classification made for rectification of regional imbalance without identifying the areas suffering from imbalance was vague and the selections made under that head were accordingly invalid".
The Court directed that the seats reserved under that head should be added to the quota of seats earmarked for selection on the basis of merit and filled accordingly.
Thereafter, in an attempt to remove the deficiency pointed out by this Court in Nishi Maghu (supra), the State Government published Notification No. 41 GR of 1980 dated 24th September, 1980 purporting to identify certain villages as socially and educationally backward for applying the principle of "rectification of imbalance in different parts of the State".
A long schedule (covering over 60 pages of the record before us) was annexed and listed some hundreds of villages.
About the same time, a Government order was issued fixing 17% of the seats in the M.B.B.S course of the medical colleges of the State as the admission quota for the purpose of "rectification of imbalances.
" From 14th to 17th July, 1980, as many as 660 candidates were interviewed by a Committee at Srinagar by way of viva voce examination.
On 21st July, 1980 the State Government issued a directive that a total list of 125 candidates be prepared against all the seats of the two Government Medical Colleges, at Srinagar and at Jammu.
A Selection List was finalised taking into account the reservations made for various categories and classes by the different Government orders, and was published on 29th September, 1980, and the names of 75 candidates were announced for admission to the M.B.B.S. course to the Government Medical College, Srinagar.
The principal contention of Mr. Soli Sorabjee appearing for the petitioner in Writ Petition No. 5600 of 1980, is that notwith standing this brave attempt to meet the constitutional requirement indicated in Nishi Maghu (supra) the State Government has failed in its purpose.
It is urged that there was no material before the State Government affording a pertinent basis for classifying these villages.
It is pointed out that almost whole tehsils of different districts have been identified as socially and educationally backward, `bad pockets ' and areas belonging to the line of actual control have been included and in the result with more than 95 per cent of the villages classified as socially and educationally backward, the inference must be that almost all 39 of Kashmir Division calls for a reservation quota.
It is asserted that a portion of Srinagar city, which includes Sangin Darwaza and Bhagwanpure, has also been identified as socially and educationally backward.
To that class have also been added towns where Notified Area Committees exist.
The submission is that the classification is wholly arbitrary and without any foundation to sustain it.
The mere circumstance, it is urged, that the classification is defined on the basis of villages without anything more demonstrates its unconstitutional character.
The case of the State Government is that the classification fully satisfies the criterion "social and educational backwardness".
In proof of the assertion it is pointed out that the present selection shows that candidates from areas not included in this classified category have taken 66 seats out of 75 on the basis of open merit.
It is conceded that a large number of villages have been included in the classification, but it is pointed out that the greater bulk of the population resides in the two cities of Srinagar and Jammu alone and would be equivalent to the population of hundreds of villages taken together.
The classification is supported by the consideration that in the nature of things the inhabitants of the rural areas are socially and educationally backward.
It is urged that merely because some of the villages are administered by Notified Area Committees does not remove the stigma of backwardness.
It is admitted that two reports, popularly described as the Anand Committee report and the Sikri Commission report, are under consideration by the Government but, it is said, as a comprehensive appreciation of the situation disclosed by the two reports of all the aspects of social and educational backwardness in the State has not been made yet, the Government has proceeded "in its own wisdom" to identify the areas suffering from regional imbalance.
We are of opinion that the classification attempted by the State Government by its order dated 24th September, 1980 suffers from the vice of arbitrariness and must be declared invalid.
There is no intelligible data before us for sustaining the classification.
No doubt the State Government has acted in its own wisdom, but the material to which that wisdom was applied has not been disclosed at all.
The fact by itself that some hundreds of villages have been brought within the classification is of no assistance whatever.
Over six years ago, this Court in State of U.P. vs Pradip Tandon(1) ruled that in the matter of admission of students to medical colleges 40 a reservation in favour of candidates on the ground that they hailed from rural areas was unconstitutional.
The Court repelled the argument that it was necessary to reserve seats for candidates from rural areas because they were handicapped in the matter of education.
It also rejected the plea that as the number of marks obtained by candidates from rural areas in the qualifying test were much lower than the marks obtained by the general candidates that was an indication of the former 's educational backwardness.
Ray, C.J., speaking for the Court, observed: "The reservation for rural areas cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens.
This reservation appears to be made for the majority population of the State 80 per cent of the population of the State cannot be a homogeneous class.
Poverty in rural areas cannot be the basis of classification to support reservation for rural areas.
" The criterion adopted by the State Government cannot be accepted unless supported by other relevant considerations.
That a comprehensive understanding of regional imbalances from the Anand Committee report and the Sikri Commission report has not been possible yet affords no justification for an arbitrary classification.
We are not satisfied that the State Government has succeeded in bringing the case within Article 15 (4) of the Constitution.
The material before us is woefully inadequate and fails to sufficiently support the validity of the classification.
We are of opinion that the order of the State Government dated 24th September, 1980 must be declared invalid.
The next contention on behalf of the petitioner is that the allocation to the viva voce test of 30 per cent of the total marks is patently unreasonable and arbitrary.
Our attention has been drawn to the observations of this Court in Ajay Hasia vs Khalid Mujib(1) where an allocation of more than 15 per cent of the total marks for the oral interview was regarded as arbitrary and unreasonable and liable to be struck down as constitutionally invalid.
It seems to us that the State Government would have done well to apply its mind seriously to the evaluation ratio between the three criteria adopted for admission.
When the Government order of 23rd June, 1980 dividing the total marks between the three criteria was issued, there 41 was ample evidence of the principle and practice adopted by examining bodies of high repute and status in the country.
The marks ratio adopted by the Union Public Service Commission provided wise example.
Besides, almost 10 years before this Court in A. Peeriakaruppan, etc.
vs State of Tamil Nadu & Ors. had expressed its disapproval of the ear marking of 75 marks for the interview test out of 275 marks.
And before the selection process was taken in the present case this Court had already observed in Nishi Maghu (supra) that reserving 50 marks for the interview out of a total of 150 marks appeared excessive, especially when the time spent was not more than 4 minutes on each candidate.
This precisely is what happened here, because on the case of the State Government itself the average time devoted to the oral interview of each candidate was 4 minutes.
However, we are reluctant to interfere on this ground because a clear pronouncement that an allocation of more than 15% of the total marks to the viva voce examination would result in constitutional invalidity has been made only recently, in Ajay Hasia (supra), by this Court and that was after the selection process in the present case had already been taken.
We would prefer to impress on the State Government that there is need to revise the marks ratio because of the very real risk future selections will face on this score.
The next contention for the petitioner is that having regard to the number of candidates interviewed and the time applied to conducting the interview no more than two minutes or so could have been given on the average to the oral interview of each candidate, a period demonstrating, in the submission of learned counsel, that the selection process was conducted in a perfunctory manner and there was no real application of the mind to the selection of candidates.
The State Government maintains that the time spent was four minutes per candidate.
We have given the matter our anxious consideration, and we are unable to hold that there is adequate material for striking down the selection on this ground.
But here again the State Government would do well to note the observations made by this Court in Ajay Hasia (supra) in this matter, and to ensure that Selection Committees take care to devote sufficient time to the oral interview of individual candidates having regard to the several relevant considerations which must enter into their judgment respecting each candidate.
42 We are also told by the petitioner that the composition of the Interview Committee varied from time to time during the interviews.
Therefore, it is said, the selection stands vitiated.
It is alleged that while one member, Shri N.S. Pathania, Principal, Medical College, Jammu joined the Committee some time after the interviews had begun, another member, Shri B.R. Kundal, Deputy Commissioner, Udhampur was present during a part of the proceedings only and left thereafter.
In regard to Shri N.S. Pathania, it is not possible to say that his joining with a slight delay has materially affected the validity of the proceedings.
And as regards Shri Kundal, it appears that he was present on the 14th July, 1980 and according to the petitioner, left on the morning of the next day.
It will be noticed that all the members of the Committee except Shri Kundal were persons closely associated with medical education.
Shri B.R. Kundal was Deputy Commissioner of Udhampur.
We also do not know what was the mode of functioning employed by the Committee, whether it was such as to invalidate the proceedings if one of the members ex necessitas, was unable to participate throughout in them.
The respondents maintain that at least three out of four members remained present throughout the proceedings.
And according to the petitioner, a proportionately small number only of the candidates was interviewed when Shri Kundal was present.
In all the circumstances, we find it difficult to say that Shri Kundal 's absence from the Committee vitiated its proceedings.
Shri Soli Sorabjee then contends that a number of candidates were selected for admission because of favouritism on account of relationship or friendship with members of the Selection Committee or because they were related to important and influential persons in the State.
The allegations have for the most part been made for the first time in the rejoinder affidavit and there has been no reasonable opportunity to the respondents to reply to them.
Such allegations on this point as are contained in the writ petition are extremely vague and sketchy, and can form no basis for a finding in favour of the petitioner.
There is one more contention, and that is that the respondents Nos. 7 to 12 did not apply for admission to the Principal, Government Medical College, Srinagar, and even if they are found to have done so their applications must have been submitted beyond the time prescribed as the qualifying examination in which they appeared was held late and the results were announced after the date prescribed for submitting the applications at Srinagar had expired.
It 43 appears from the record before us that inasmuch as the relevant examination was held late and the announcement of the results was delayed the State Government permitted the candidature of these applicants to be considered for inclusion in a common list drawn up to cover candidates for admission to either of the Government Medical Colleges, at Srinagar and at Jammu.
Besides, it is conceded by the petitioner that those respondents have an excellent record and if they had applied in time for admission to the Government Medical College, Srinagar, they would certainly have been admitted on the basis of their merit.
In the circumstances, we do not propose to interfere with the grant of admission to those respondents.
Accordingly, the only relief which, in our judgment, should be awarded to the petitioner is the quashing of admissions granted in the quota reserved for rectifying regional imbalances.
In consequence, those seats must be filled up on the basis of open merit.
Writ Petitions Nos.
5601 of 1980, 5615 and 5689 to 5697 of 1980, which proceed on the same lines as Writ Petition No. 5600 of 1980, must be disposed of in like manner.
The remaining cases, Writ Petitions Nos. 6283 to 6307 of 1980, fall in a separate category.
The petitioners here challenge the selection of candidates for admission to the M.B.B.S. course in the Government Medical College, Jammu for the year 1980 81; and complain of the denial of admission to them.
The facts on which these writ petitions have been brought and the grounds on which they claim relief are substantially the same as in Writ Petition No. 5600 of 1980.
Indeed, Shri M.K. Ramamurthi, learned counsel for the petitioners, states at the outset that he adopts the submissions urged in that case against the validity of the admissions granted for the purpose of rectification of regional imbalances, in regard to the invalidity alleged by the assigning of 30% marks to the viva voce examination and also in regard to the legal effect on the interview proceedings of the absence of some members of the Selection Committee during part of the proceedings.
These points have been considered and disposed of by us in that writ petition, and those findings are of equal validity in these writ petitions also.
Besides this, learned counsel for the petitioners raises other contentions.
He urges that the selections made are not in accordance with the Regulations framed by the Indian Medical Council under section 33 read with section 19A, and therefore violate the fundamental right of the petitioner guaranteed 44 under Article 15 of the Constitution.
It is contended that the Regulations are law and are enforceable in a court, and that if they are to prevail the only reservation permissible is that in favour of Scheduled Castes and Scheduled Tribes.
According to the Regulations, it is asserted, a Selection Committee can either take into consideration the marks obtained in a qualifying examination or in the competitive test.
Nor, it is said, can a viva voce examination be permitted as a vehicle for selection.
The validity of holding a separate objective test is also assailed as also of assigning 35% of the total marks to it.
The merit test is challenged on the ground that no curricula have been prescribed in relation thereto Objection to the objective test and the viva voce examination is based on the ground that they fall outside the scheme envisaged by the Regulations made by the Indian Medical Council for admission to the M.B.B.S. course.
The respondents, however, question the validity of the Regulations.
We are then referred by the petitioners to clauses (j) and (I) of section 33, in support of the contention that the power of the Council to make regulations extends to making regulations prescribing the examinations and tests for admission.
It seems to us prima facie that those provisions do not authorise the Council to do so.
But we refrain from expressing any final opinion in the matter as the Council is not a party before us.
We are also not satisfied that the reservations permissible must be confined to Scheduled Castes and Scheduled Tribes.
Nor do we find sufficient basis in the submission that there is arbitrariness in providing for 35 marks to a separate objective test in addition to the 35 marks earmarked for the qualifying examination.
The grounds taken before us do not justify the conclusion that a competitive entrance examination is not permissible in law in addition to the qualifying examination.
In regard to the sufficiency of the objective test, we are not satisfied that the absence of a prescribed formal curriculum vitiates the objective test.
The next contention on behalf of the petitioners is that the presence of a Government official on the Selection Committee vitiates its constitution.
It is stressed that the viva voce test to be acceptable should be conducted by persons who are men of high integrity, calibre and qualifications.
There is no principle of law, so far as we know, disqualifying a Government official from participating on the Interview Committee merely because he is a Government official.
Nor do we believe that a Government official cannot be a person of high integrity, calibre and qualifications.
The constitution of a 45 Committee lies in the wisdom of the State Government and it is expected that men suitably qualified in every respect will be appointed to discharge the functions of the Committee.
So long as the State Government acts bona fide and on the basis of relevant considerations it is not possible to say that the appointment of a Government official is obnoxious to the law.
In the result, the writ petitions are allowed insofar that the selection of candidates for admission to the M.B.B.S. course of the Government Medical Colleges at Srinagar and at Jammu for the year 1980 81 made on the basis of rectifying regional imbalances is quashed and the respondents are directed to fill up those seats on the basis of open merit.
The candidates who will be displaced in consequence have already completed a few months of study and in order to avoid serious prejudice and detriment to their careers it is hoped that the State Government will deal sympathetically with their cases so that while effect is given to the judgment of this Court the rules may be suitably relaxed, if possible by a temporary increase in the number of seats, in order to accommodate the displaced candidates.
In the circumstances, there is no order as to costs.
S.R. Petitions allowed.

summary:
Selection of candidates to be admitted to M.B.B.S. course in the Medical College of the State of Jammu & Kashmir was made by a Selection Committee on the basis of (a) merit in qualifying examination (35 marks) (b) an objective test (35 marks) and (c) a viva voce test (30 marks).
The seats were distributed besides the examination base was determined by a distribution of the seats into three distinct divisions namely, (i) 60% on the basis of open merit; (ii) 20% on the basis of reservation for scheduled castes and other reserved categories, one of which was broadly described as "socially and educationally backward classes" which included candidates from (a) areas adjoining actual line of control and (b) areas known as "bad pockets", including Ladhak and (iii) 20% were reserved as seats to be filled "on the basis of inter se merit to ensure rectification of imbalance in the admission for various parts of the State, if any, so as to give equitable and uniform treatment to those parts".
In Nishi Maghu vs State of Jammu and Kashmir, ; , the Supreme Court held that the selections made under the third category were invalid, inasmuch as the classification made for rectification of regional imbalance without identifying the areas suffering from imbalance was vague.
The State Government, therefore, published Notification No. 41 G.R. of 1980 dated 24th September, 1980 purporting to identify certain villages as socially and educationally backward for applying the principle of "rectification of imbalance in different parts of the States".
and reduced the distribution of seats in the Medical Colleges of the State under this category from 18 to 17% under this category.
This order is challenged by the petitioner, an unsuccessful candidate in the selection made for admission to M.B.B.S. course for the year 1980 81.
35 Allowing the petitions, the Court ^ HELD: 1.
The classification attempted by the State Government by its order dated 24th September, 1980 suffers from the vice of arbitrariness and is, therefore, invalid.
There was no intelligible data before the Court for sustaining the classification.
No doubt the State Government had acted in its own wisdom, but the material to which that wisdom was applied was not disclosed at all.
The fact by itself that some hundreds of villages had been brought within the classification is of no assistance whatever.
That a comprehensive understanding of regional imbalances from the Anand Committee report and the Sikri Commission report had not been possible yet affords no justification for an arbitrary classification.
The State failed to bring the case within Article 15(4) of the Constitution.
[39 G; 40 D] State of U.P. vs Pradip Tandon, ; applied.
There is need to revise the marks ratio for the viva voce test because of the very real risk future selections would face on this score.
The Government would also do well to ensure that Selection Committees take care to devote sufficient time to the oral interview of individual candidates having regard to the several relevant considerations which must enter into their judgment respecting each candidate.[41 D & G] A. Peeriakaruppan, etc.
vs State of Tamil Nadu and Ors., [1971] 2 S.C.R. 430; Nishi Maghu vs State of Jammu and Kashmir, ; ; Ajay Hasia vs Khalid Mujib, ; , referred to.
The selection cannot be said to be vitiated on the ground that one of the members, Shri Kundal, left after some time and therefore the composition of the Interview Committee varied from time to time, since three out of four members remained present throughout the proceedings and a proportionately small number only of the candidates was interviewed when Shri Kundal was present.
[42 D E] 2: 3.
The appointment of a Government official as a member of the Selection Committee is not obnoxious to the law.
There is no principle of law disqualifying a Government official from participating on the Interview Committee merely because he is a Government official.
It cannot be said that a Government official cannot be a person of high integrity, calibre and qualifications.
The constitution of a Committee lies in the wisdom of the State Government and it is expected men suitably qualified in every respect will be appointed to discharge the functions of the Committee.
So long as the State Government acts bona fide it cannot be said that the presence of a Government official on the Selection Committee vitiates its constitution.
[44H, 45 A B] 2: 4.
Selection of a number of candidates, in the present case, cannot be said to have been made because of favouritism on account of relationship or friendship with members of the Selection Committee or because they were related to important and influential persons in the State.
Besides being sketchy and extremely vague, such allegations have been made for the first time in the rejoinder affidavit and there has been no reasonable opportunity to the respondents to reply to them.[42 F] 36 3.
The grant of admission to respondents Nos. 7 to 12, in the instant case, is in order, inasmuch as the relevant qualifying examination was held late and the announcement of the results was delayed.
The State Government correctly permitted the candidature of these applicants to be considered for inclusion in a common list drawn up to cover candidates for admission to either of the Government Medical Colleges, at Srinagar and at Jammu.
Even according to petitioner those respondents have an excellent record and if they had applied in time for admission in the Government College at Srinagar they would certainly have been admitted on the basis of their merit.
[42G H] 4.
A competitive entrance examination is permissible in law in addition to the qualifying examination.
In regard to the sufficiency of the objective test, the absence of a prescribed formal curriculum does not vitiate the objective test.
[44 E] 5.
A reading of the regulations framed by the Indian Medical Council under section 33 read with section 19 A of the makes it clear that the reservation permissible need not necessarily be confined to Scheduled castes and scheduled tribes.
[44 E]