judgement:
vil Appeals Nos. 1314 to 1318 of 1979.
Appeals by Certificate from the Judgment and Order dated 4.4.1979 of the Judicial Commissioner Goa, Daman & Diu in Special Civil Application (Writ Petition) Nos. 75,76, 77 of 1977, 103 and 111 of 1978.
AND Writ Petition No. 864 of 1988.
(Under Article 32 of the Constitution of India).
G. Ramaswamy, Additional Solicitor General, T.V.S. Krishnamoorthy Iyer, S.S. Ray, Y.S. Chitaley, Joachin Dias, A.B. Nadkarni, Arun Madan, Ms. A. Subhashini, section Ganesh and R. Swamy for the Appellants/Petitioners.
Manohar section Usgaocar, F.S. Nariman, G.L. Sanghi, M.N. Phadke, R.F. Nariman, S.K. Mehta, Atul Nauda, Aman Vachher, Mrs. Nineti Sharma, S.M. Usgaocar and M.K. Dua for the Respondents.
SHARMA, J.
The civil appeals No. 1314 to 1318 of 1979 by certificate are directed against the decision of the Judi cial Commissioner of Goa, Daman and Diu, declaring the Goa, Daman and Diu Agricultural Tenancy (5th Amendment) Act, 1976, as unconstitutional.
The respondents are landlords in Goa.
The lands were in possession of the tenants who were cultivating the same and paying rent to the respondents.
The respondents were divested of their title in the lands by the provisions of the impugned Act which came in force in 1976 vesting the same in the tenants.
The respondents filed five writ applications in the court of the Judicial Commissioner challenging the validity of the Amendment Act.
The writ petitions were allowed by the impugned judgment.
It has been held that the Act violates Articles 14 and 19 of the Consti tution and the protection of Article 31A is not available as the scheme of the Act does not constitute agrarian reform.
It has been contended on behalf of the respondent writ petitioners that the landlords in Goa are generally small land holders and their condition is not better than that of the tenants and in that view the Act divesting the landlords of their title in the land and veting the same in the tenants suffers from the vice of illegal discrimination.
A similar Act was earlier passed by the Maharashtra Legisla ture also which has been found to be constitutionally valid.
The writ petitioners have, before the court below, success fully argued that the decision in that case is not applica ble inasmuch as the Maharashtra Act contains provisions fixing ceiling to which the other provisions are subject to, while there is no such restriction in the present Act.
The result is that although the Maharashtra Act had to be upheld as a measure of agrarian reform and thus protected by Arti cle 31A of the Constitution, the present Act cannot be so interpreted.
During the pendency of these appeals the impugned Amendment Act along with the main Act were included in the 9th Schedule of the Constitution and the assent of the President was received on the 26th of August, 1984.
Lakshmibai Narayan Patil, the writ petitioner in the three of the cases in the court of Judicial Commissioner (respond ent in Civil Appeals No. 1314, 1315 and 1316 of 1979) has challenged the constitutional amendment as illegal and ultra vires by filing an application under Article 32 of the Constitution which has 501 been numbered as Writ Petition No. 864 of 1988.
By the impugned Amendment Act, Chapter IIA has been included in the Goa, Daman and Diu Agricultural Tenancy Act, 1964 (hereinafter referred to as the Act), Chapter III has been deleted and some consequential changes have been made in some other sections.
Chapter IIA deals with "Special rights and privileges of tenants" as indicated by the head ing.
Broadly speaking, by the provisions of section 18A of this Chapter the land belonging to a landlord not in his culti vating possession on the tiller 's day gets transferred to the tenant inpossession for a price to be paid to the land lord.
The expression 'tenant ' has been given a larger mean ing under the Act by section 4.
By the second proviso of section 4 a sub tenant cultivating any land on or after 1.7.
1962 has to be deemed to be a lawfully cultivating tenant notwithstand ing the fact that the creation of sub tenancy might have been prohibited by any law, and the tenant prior to the creation of the sub tenancy (who may be referred to as intermediary tenant) is not to be treated as a tenant.
The price of the land in question has to be determined and the payment made in accordance with the provisions of Chapter IIA.
Separate provisions have been made with respect to special cases where tenant is a minor or has been evicted by the landlord before the tiller 's day.
The provisions of section 18 J provide for the resumption and disposal of the land not purchased by the tenant by reason of purchase being ineffec tive under section 18C or section 18H or due to the failure of the tenant to take steps under section 18B within time.
A revenue officer described as Mamlatdar is vested with the power to dispose of such land in the manner provided in sub section (2) of section 18J.
Such land has to be disposed of in the order of priority, whereunder 75% of such land is to be disposed of by sale to persons belonging to Scheduled Castes or Scheduled Tribes and thereafter the remaining land to serv ing members of the Defence Forces of the country or ex servicemen or freedom fighters who agree to cultivate the land personally.
If the land still remains undisposed of, it first goes to agricultural labourers and thereafter to landless persons.
If some of the land still remains avail able, it has to be sold to a co operative farming society.
Section 18 K puts a restriction on transfer of the land which the tenant acquires by purchase under the Chapter.
Only with the previous sanction of the Mamlatdar any trans fer whether by sale, gift, exchange, mortgage, lease or assignment can be made.
If the land owner is himself cultivating it, there being no tenant or a deemed tenant he continues to be in possession without any curtailment of his rights.
On the other hand, in a case where the tenant 502 after getting a tenancy from the landlord inducts another person as a sub tenant who cultivates the same, the benefits of the impugned provisions go to him and not to the tenant.
The object of the Amending Act is thus clearly to vest the land in the tiller.
The right of any person to receive merely rent is taken away for a price.
The respondents who are landlords, have challenged the Amendment Act whereby Chapter IIA has been inserted in the Act on the ground of illegal discrimination.
The argument is that in absence of provisions for ceiling the impugned Act bestows undeserved benefit on the tenants at the cost of the landlords, without reference to the respective areas in their possession.
The Amendment was enforced as also the impugned judgment was delivered before the deletion of Clause (f) of Article 19(1) from the Constitution and one of the grounds which has been successfully urged before the High Court is based on Article 19(1)(f).
So far Article 31A of the Constitution is con cerned, the case of the respondents which has found favour with the court below is that the provisions of the impugned Amendment Act cannot be held to be a step by way of agrarian reforms and, therefore, cannot have the protection of the Article.
This is the main thrust of the argument of Mr. R.F. Nariman in this Court also.
He has strenuously contended that for extending the protection of Article 31A(1)(a) to any particular law it is necessary that the law contains adequate measure against concentration of wealth in the hands of a few.
It is claimed that fixation of ceiling is the heart and soul of agrarian reform without which it does not survive.
It has been observed in the impugned judgment that from the transcripts of newspapers produced by the writ petitioners and the statements alleged to have been made by the late Chief Minister that there were very few big land holders in Goa, it can be assumed that the landlords in Goa are small holders of land.
Certain statements made in the affidavit filed before the Court were also referred to in this connection.
An attempt was made in this Court also to urge that there could not be many big landlords in Goa and therefore their deprivation of the lands cannot be deemed to be a step towards fair distribution.
It was contended that in many a case, a cultivating tenant in possession of lands under different landlords may be having far larger area of land than his landlords and there cannot be any justifica tion in clothing such a tenant with title to the land at the cost of his comparatively poor landlords.
The argument proceeded, that so far the holdings of the tenants are concerned.
a necessity of placing ceiling on the holdings cannot be denied in view of the affidavit filed on behalf of the State stating that further legislation for that purpose was in contemplation.
Mr. R.F. Nariman emphasized the fact that no such law has been 503 brought in force till now.
To the last part of the argument it was tightly pointed out by the learned counsel for the appellants that since the Amendment Act was struck down by the Judicial Commissioner 's Court as ultra vires, further amendment in the Act by way of introducing provisions for ceiling had to await this Court 's judgment in the present civil appeals.
Before proceeding with the main argument of Mr. R.F. Nariman and the cases relied upon by him, it may be useful to briefly refer to the nature of the right of the landlords and the tenants under the Act before the insertion of Chap ter IIA by the impugned Amendment Act.
The rights of a tenant were heritable and Sections 8 and 9 prohibited the termination of his tenancy and his eviction except where the himself surrendered his right to the landlord or where the landlord established one of the grounds specified in this regard.
By an Amendment in 1966.
the tenant was given, by section 13A, the first option to purchase the land in case the landlord proposed to sell it.
By Chapter III the landlord was permitted to resume the land, subject to the ceiling of an area of 2 hectares in case of paddy land and 4 hectares in other lands, on the ground of bona fide requirement for personal cultivation; but this right was also dependent on the fulfilment of certain conditions.
This Chapter was to come into force only on a notification for the purpose which was never issued.
By the impugned Amendment Act this Chapter was omitted from the Act.
In effect the right of resumption contemplated by the Act never vested in the landlords before it disappeared from the statute book.
It may be stated here that the 1964 Act is not under attack and the challenge is confined to its 5th Amendment whereby Chapter IIA has been included and Chapter III deleted.
The statement of objects and reasons was placed before us wherein it has been mentioned that there was a similar legislation in force in the neighbouring State of Maharash tra.
The reference obviously is to the Bombay Tenancy and Agricultural Lands (Amendment)Act, 1956, mentioned in para graph 2 above, introducing similar amendments in the Bombay Tenancy and Agricultural Lands Act,1948.
In Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp 1 SCR 489, the validity of the Act was upheld by a Constitution Bench of this Court.
It has been contended that the Maharashtra A mending Act including provisions fixing ceiling which effec tively prevented accumulation of large areas of land in possession of the tenants; and since there is no similar safeguard in the present 5th Amendment Act, the aforesaid decision does not come to its rescue 504 and leads to the conclusion that in absence of similar provi sions the Act cannot be sustained.
The learned counsel for the respondents relied upon the observation of several decisions of this Court in support of his contention that provisions regarding ceiling are essential for a statute enacted as a measure of agrarian reform and in their absence the same cannot claim pro tection of Article 31A of the Constitution.
Article 31A(1)(a) declares that no law providing for "the acquisition by the State of any estate or of any rights therein or the extinction or modification of any such rights", shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19.
The 5th Amend ment Act has received the assent of the President as re quired by the first proviso.
The expression 'estate ' is undisputedly applicable in the present case in view of the provisions of clause (2) of the said Article.
Although Article 31A(1)(a) does not by express language restrict its application to a particular nature of law, it is now well settled that the protection of the Article is limited to the laws which serve the purpose of agrarian reform, and Mr. R.F. Nariman is right in relying upon the observations at page 90IF of the judgment in Godavari Sugar Mills Ltd. and Others vs S.B. Kamble and Others, [1975] 3 SCR page 885.
The learned counsel has further urged that the other observa tions in this judgment support his main argument also that in absence of provisions for ceiling a statute cannot be held to be for agrarian reform.
We are unable to agree.
In that case the constitutional validity of the Act amending certain provisions of the Maharashtra Agricultural (Ceiling and Holdings) Act was under challenge and it was sought to be saved inter alia with the aid of Article 3 1A.
While discussing the scope of Article 3 1A, the Court at page 902F relied upon the decision in Balmadies Plantations Ltd. and Another vs State of Tamil Nadu, ; , in the following terms: "In the case of Balmadies Plantations Ltd. & Anr.
vs State of Tamil Nadu it was held while dealing with the provisions of Gudalur Janmam Estates (Abolition and Conver sion into Ryotwari) Act that the object and general scheme of the Act was to abolish intermediaries between the state and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the state.
The Act, as such, in its broad outlines was held to be a measure of agrarian reform and protected by article 31A." 505 At page 903H it was observed that in a sense agrarian reform is wider than land reform.
At page 905 the conclusion was summarised under 8 heads, and Mr. R.F. Nariman strongly relied on the last proposition stating, "(8) A provision fixing ceiling area and providing for the disposal of surplus land in accordance with the rules is a measure of agrarian reform.
" It cannot be denied that the appropriately enacted statutes having provisions for fixing ceiling of holdings do fall in the category of legislation for agrarian reform, but the proposition relied upon, does not say and cannot be inter preted as holding that it is such an essential feature of agrarian reform without which a law cannot be included in that category.
The observations at page 902F in respect of the judgment in Balmadies Plantations case, quoted earlier rather negative such an assumption.
The case of Sri Ram Ram Narain Medhi (supra) has not only been distinguished in the impugned judgment but has been relied upon for supporting the writ petitioner 's argu ment.
Reliance has been placed on the observations at page 495 of the reported judgment to the effect that the object of the Maharashtra Act, which was under consideration in that case.
was to bring about such distribution of the agricultural lands as best to subserve the common good and this object was sought to be achieved by fixing ceiling on areas of holdings.
It, however, does not follow that fixing ceiling area of land which can be held by a person is a basic and essential requirement of land reform.
Since the challenge against the Maharashtra Act was being directed to the provisions fixing ceiling it became necessary to consid er and decide the effect of those provisions pointedly.
But on a careful consideration of the entire judgment, there does not remain any element of doubt that a proper statute even without including provisions regarding ceiling may be entitled to the protection of Article 31A provided it is otherwise a measure of agrarian reform.
As mentioned earli er, the Court was deciding the question of constitutional validity of the 1956 Act which amended the Bombay Tenancy and Agricultural Lands Act enacted in 1948.
The original 1948 Act did not contain the provisions of ceiling which were later introduced by the impugned amendment.
If the stand of the respondents be assumed to be correct, the 1948 Act could not have been in absence of the provisions of ceiling, held to be a step in agrarian reform.
But the Court at page 492 stated that: 506 "The 1948 Act had been passed by the State Legislature as a measure of agrarian reform . " With respect to the 1956 Amendment Act, it was said at page 493 that, "With a view to achieve the objective of establish ing a socialistic pattern of society in the state within the meaning of Articles 38 and 39 of the Constitution, a further measure of agrarian reform was enacted by the State Legisla ture, being the impugned Act, hereinbefore referred to, which was designed to bring about such distribution of the ownership and control of agricultural lands as best to subserve the common goods thus eliminating concentration of wealth and means of production to the common detriment." (emphasis added) The use of the expression "further measure ' as mentioned above and the repetition of the said expression again at page 495 emphasise the fact that the original Act also was a measure of agrarian reform.
Thus the decision, instead of helping the respondents lends support to the appellants ' argument.
Mr. R.F. Nariman cited a number of other decisions dealing with the validity of provisions fixing ceiling and the Court upheld those provisions on the ground that they were measures of agrarian reform, but they do not support the reverse proposition as put forward on behalf of the respondents.
All these decisions are, therefore, clearly distinguishable and we will mention briefly some of them which were heavily relied on by Mr. Nariman.
In the case of Sonapur Tea Co. Ltd. vs Must.
Mazi runnessa; , , writ petitions were filed in the High Court challenging the validity of the Assam Fixation of Ceiling on Land Holding Act, 1957.
The High Court in dis missing the petitions held that the impugned Act was pro tected by Article 31A as it was a measure of agrarian re forms and imposed limits on lands to be held by persons in order to bring about its equitable distribution.
The main question which was canvassed before this Court was whether the expression "the rights in relation to an estate" in the Article could cover the impugned Act, and it was answered in the affirmative by holding that the said expression is of a very wide amplitude.
At page 729 this Court observed thus: 507 "This Article has been construed by this Court on several occasions in dealing with legislative measures of agrarian reforms.
The object of such reforms generally is to abolish the intermediaries between the State and the cultivator and to help the actual cultivator by giving him the status of direct relationship between himself and the State." The 5th Amendment Act impugned in the cases before us satis fies this test.
Similar was the position in Purushothaman Nambudiri y.
The state of Kerala, [1962] Supp. 1 SCR 753.
The case of Fida Ali and Others vs State of Jammu and Kash mir; , , was also considering a statute pro viding a scheme for agrarian reform which included provi sions in respect of ceiling.
While upholding the Act the provisions fixing ceiling were upheld but the other observa tions in the judgment clearly indicate that the same cannot be assumed to be a condition precedent.
Personal cultivation by the holder of land was emphasised as an important aspect in the following words at page 345G: "The golden web, throughout the warp and woof of the Act, is the feature of personal cultivation of the land.
The expression 'personal cultivation ' which runs through sections 3, 4, 5, 7 and 8 is defined with care under section 2(7) in a detailed manner with a proviso and six explana tions.
From a review of the foregoing provisions it is obvious that the Act contains a clear programme of agrarian reforms intaking stock of the land in the State which is not in personal cultivation (section 3) and which though in personal cultivation is in excess of the ceiling area (section 4).
" In the ultimate paragraph of the judgment it was pointed that for framing a scheme for agrarian reforms it is not necessary or feasible to follow a set pattern in different parts of the country.
It was observed, "On the other hand, the predominant object under lying the provisions of the Act is agrarian reforms.
Agrar ian reforms naturally cannot take the same pattern through out the country.
Besides the availability of land for the purpose, limited in scope in the nature of things, the scheme has to fit in with the local conditions, variability of climate, rainfall, peculiarity of terrain, suitability and profitability of multiple crop patterns, vulnerability of floods and so 508 many other factors in formulating a scheme of agrarian reforms suitable to a particular State".
The decision, therefore, indicates that a flexible approach has to be adopted in deciding as to the nature of agrarian reform to be taken, rather than laying down a strait jacket rule for universal application.
The observations in Datta traya Govind Mahajan and Others vs State of Maharashtra and Another, ; , were also made while examining an Act fixing ceiling of holdings and in justification of the impugned provisions it was observed that the policy in this regard was initiated following the report of the Agricultur al Labour Inquiry conducted in the 1960s and in implementa tion of this policy the Act under consideration was passed.
The implication is that the fixation of ceiling was not essentially involved in agrarian reform but it had to be resorted to in the State of Maharashtra following the con clusion arrived at in the Agricultural Labour Inquiry. 13.
The learned counsel for the respondents also placed two cases wherein Article 31A was held to be inapplicable.
In K.K. Kochuni and Others vs The State of Madras and Oth ers, , the question of Article 31A did arise but in absolutely different context.
The immediate predeces sor of the petitioner K.K. Kochini was the sthanee of the properties attached to the various sthanee held by him.
On his death in 1925, the petitioner being the senior member became the sthanee and the respondents No. 2 to 17 being the junior members of the tarwad did not get any interest in the properties.
In an earlier litigation which was commenced following the passing of an Act in 1932, the petitioners ' exclusive right was established up to the Privy Council stage.
It was held that the Members of the tarwad had no interest therein.
After the title of the sthanee was thus established, the Madras Legislature passed the impugned Act in 1955, which declared that every sthanam satisfying cer tain conditions mentioned in the Act would be deemed and would always be deemed to have properties belonging to the tarwad.
The petitioner K.K. Kochuni challenged the Act as ultra vires before this Court by an application under Arti cle 32 of the Constitution.
Two other petitions were also filed, one by his wife and daughters with respect to certain other properties gifted to them and the other by his son.
In support of the constitutional validity of the Act it was argued on behalf of the respondents that the petitioner 's sthanam was an estate within the meaning of Article 31A and, therefore, enjoyed the protection under that Article.
The argument was that a law relating inter se the rights "of a proprietor in his estate and the junior members of his family was also covered by the wide 509 pharseology used in clause (2)(b) of Article 31A.
This Court rejected the plea, holding that: "The definition of "estate" refers to an existing law relat ing to land tenures in a particular area indicating thereby that the Article is concerned only with the land tenure described as an "estate".
The inclusive definition of the rights of such an estate also enumerates the rights vested in the proprietor and his subordinate tenure holders.
The last clause in that definition, viz., that those rights also include the rights or privileges in respect of land revenue, emphasizes the fact that the Article is concerned with land tenure.
It is, therefore, manifest that the said Article deals with a tenure called "estate" and provides for its acquisition or the extinguishment or modification of the rights of the land holders or the various subordinate ten ure holders in respect of their rights in relation to the estate.
The contrary view would enable the State to divest a proprietor of his estate and vest it in another without reference to any agrarian reform.
It would also enable the state to compel a proprietor to divide his properties, though self acquired, between himself and other members of his family or create interest therein in favour of persons other than tenants who had none before." The Court, thus held that Article 31A (1)(a) will not apply to an Act which does not contemplate or see to regulate the fights inter se between the landlords and tenants leaving all their characteristics intact.
The Court further consid ered the judgment in Sri Ram Ram Narain 's case (supra) and distinguished it on the ground that under the Bombay Act certain fights were conferred on the tenants in respect of their tenements which they did not have before.
The other case of San jeer Coke Manufacturing Company vs Bharat Coking Coal Ltd. and Another, ; , relied upon by Mr. Nariman is also of no help as the same was dealing with certain legislation in regard to mines and minerals.
The question of interpreting Article 31A (1)(a) did not arise there at all.
As has been discussed above.
the title to the land shall vest in the tiller and the landlord shall get the compensation.
Earlier also his right to resume the land for personal cultivation was considerably restricted by the provisions of the 1964 Act.
As a result of the impugned Amendment Act he has been divested of this limited right 510 for a price, and the tiller shall no more be under a threat of dispossession.
The impugned provisions must therefore be accepted as a measure of land reform.
We reject the argument of the respondents that in absence of provisions fixing ceiling on the area of land which can be held by a person a statute cannot be accepted as a measure of land reform.
The 5th Amendment Act is, therefore, entitled to the protection of Article 3 IA and it cannot be struck down on the ground of violation of Articles 14 and 19 of the Constitution.
The judgment of the Judicial Commissioner declaring the Act as ultra vires is accordingly set aside and the writ petitions filed by the respondents are dismissed.
Consequently it is not necessary to deal with the writ petition (W.P. No. 864 of 1988) filed in this Court under Article 32 challenging the inclusion of the impugned Act in the 9th Schedule of the Constitution and the same is rejected.
In the result, Civil Appeals No. 1314 1318 of 1979 are allowed, but, in the circumstances, the parties are directed to bear their own costs throughout.
R.S.S. Appeals allowed Petition dismissed.

summary/full:
The respondents in the civil appeals and the petitioner in the writ petition were landlords in Goa, whose lands were in the possession of the cultivating tenants.
Prior to the enactment of the Goa, Daman and Diu Agricultural Tenancy (5th Amendment) Act, 1976 the nature of the rights of the landlords and tenants were governed by the Goa.
Daman and Diu Agricultural Tenancy Act, 1964.
By Chapter III of the 1964 Act the landlord was permitted to resume his land for bona fide personal cultivation, subject to a ceiling.
Chap ter III, however, was to come into force only on a notifica tion for the purpose, which was never issued.
The impugned 5th Amendment omitted Chapter III from the 1964 Act and in its place included Chapter IIA.
By the provisions of section 18A of Chapter IIA the land belonging to a landlord not in his cultivating possession on the tiller 's day got trans ferred to the tenant in possession for a price to be paid to the landlord.
The respondents filed writ applications in the Court of the Judicial Commissioner challenging the validity of the 5th Amendment Act.
The writ petitions were allowed by the Judicial Commissioner who held that the Amendment Act vio lated Articles 14 and 19 of the Constitution and that the protection of Article 31A was not available as the scheme of the Amendment Act did not constitute agrarian reform.
498 During the pendency of the present appeals the impugned Amendment Act along with the main Act were included in the 9th Schedule of the Constitution.
The writ petition filed in this Court under Article 32 has challenged this constitu tional amendment as illegal and ultra vires.
Before this Court it was contended on behalf of the respondentslandlords that fixation of ceiling was the heart and soul of agrarian reform; that provisions regarding ceiling were essential for a statute enacted as a measure of agrarian reform and in their absence the same could not claim protection of Article 31A of the Constitution; that in the absence of provisions for ceiling the impugned Amendment Act had bestowed undeserved benefit on the tenants at the cost of the landlords, without reference to the respective areas in their possession.
In this connection it was submit ted that in many a case, a cultivating tenant in possession of lands under different landlords might be having far larger area of land than his landlords and there could not be any preference to clothing such a tenant with title to the land at the cost of his comparatively poor landlords.
Allowing the appeals and dismissing the writ petition this Court, HELD: (1) It is well settled that the protection of Article 31A is limited to the laws which serve the purpose of agrarian reform.
[504D] (2) It cannot be denied that the appropriately enacted statutes having provisions for fixing ceiling of holdings do fall in the category of legislation for agrarian reform, but that proposition does not say and cannot be interpreted as holding that fixing ceiling areas is a basis and essential feature of agrarian reform without which a law cannot be included in the category.
A proper statute even without including provisions regarding ceiling may be entitled to the protection of Article 31A provided it is otherwise a measure of agrarian reform.
[505C, F] Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 SCR 489; Godavari Sugar Mills Ltd. vs S.B. Kamble & Ors., ; and Balmadies Plantations Ltd. & Ant.
vs State of Tamil Nadu; , , referred to.
(3) The title to the land shall vest in the tiller and the landlord shall get the compensation.
Earlier also his right to resume the land for personal cultivation was con siderably restricted by the provisions of the 1964 Act.
As a result of the impugned 5th Amendment Act he has been 499 divested of this limited right for a price, and the tiller shall no more be under a threat of dispossession.
The im pugned provisions must therefore be accepted as a measure of land reform.
[509G H; 510A] (4) The argument of the respondents that in absence of provisions fixing ceiling on the area of land which can be held by a person a statute cannot be accepted as a measure of land reform is, accordingly, rejected.
The 5th Amendment Act is.
therefore, entitled to the protection of Article 31A and it cannot be struck down on the ground of violation of Articles 14 and 19 of the Constitution.
[510A B] Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 SCR 489; Sonapur Tea Co. Ltd. vs Must.
Mazirunnes sa; , ; Purushothaman Nambudiri vs The State of Kerala, [1962] Supp. 1 SCR 753; Fida Ali & Ors.
vs State of Jammu & Kashmir, ; ; Dattatraya Govind Mahajan vs State of Maharashtra, ; ; K.K. Kochuni vs The State of Madras, and Sanjeev Coke Manufacturing Company vs Bharat Coking Coal Ltd. & Anr., ; , distinguished.


judgement:
ivil Appeal No. 3492 of 1990.
From the Judgment and Order dated 3.8.1988 of the Jammu & Kashmir High Court in L.P.A. No. 110 of 1988.
N.S. Mathut, Ramesh C. Pathak, G. Venkatesh Rao and Baby Lal for the Appellant.
E.C. Agarwala, Ms. Purnima Bhatt, V.K. Pandita and Atul Sharma, for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Special leave granted.
The School of Buddhist Philosophy, Leh (hereinafter called the 'School ') is an affiliate institution of the Sampurnanand Sanskrit University, Banaras.
The management of the School is in the hands of a society called Central Institute of Buddhist Studies, Leh which is registered under the Jammu and Kashmir Registration of Societies Act.
Ap pointments to various posts in the School are regulated by the rules framed by the Board of management in the year 1973.
The academic and other qualifications for the post of Principal under the rules, are as under: 517 "Academic Qualification At least Master 's Degree in Humanities or Social Sciences, with knowledge of Rules and Regulations, procedures and Accounts.
Experience Minimum experience of 7 years, out of which at least 2 years should be in administration such as administrative Asstt.
and not less than 3 years in teaching in Higher Secondary and/or Degree classes.
" The qualifications for the post of Administrative Officer under the 1973 rules are identical.
M.L. Mattoo (Respondent No. 1), who was functioning as the Administrative Officer, was given the additional charge of the post of Principal by an order dated March 26, 1973 issued by the Ministry of Education and Social Welfare, Government of India, New Delhi.
The Board of Management in its meeting held on August 22, 1978 decided that apart from the qualifications pre scribed under the Rules, the person selected for the post of Principal should have a thorough academic background in Buddhist Philosophy.
Pursuance to the said decision the qualifications/experience for the post of Principal pre scribed under the Rules were revised as under: "Essential: (a) A consistently good academic record possessing eminent scholarship in Buddhist Philosophy as a subject of specialisation at M.A. or Doctoral level.
or Acharya Degree with research experience to Buddhist Philoso phy or equivalent.
or An equivalent degree of traditional monastic education in Buddhism.
518 (b) Evidence of research work and/or public work in the field.
Desirable: (a) 5 years teaching experience in Buddhist Philosophy and allied subject at the degree level.
(b) 5 years of administrative experience.
" The Board of Management constituted a selection commit tee to appoint a suitable person as Principal of the School.
By an order dated January 9, 1979 one Shri Tashi Pal jot, who fulfilled the revised qualifications, was appointed as Principal of the School.
Aggrieved by the said appointment M.L. Mattoo filed Civil Writ Petition No. 256 of 1979 in the High Court of Jammu and Kashmir on the ground that he was removed from the additional charge without affording an opportunity of heating to him and further that he was not considered by the selection committee.
He contended that selection was liable to be quashed being violative of Arti cle 16 of the Constitution of India.
The writ petition was resisted by the Management on the ground that it was not a 'State ' under Article 12 of the Constitution of India and as such the writ petition was not competent.
At the hearing of the writ petition the counsel for the Management conceded that the society was a 'State ' within Article 12 of the Constitution of India and as such the writ petition could not be dismissed on that ground.
The High Court rejected the contention of M.L. Mattoo that he was entitled to an oppor tunity of hearing or Article 311 was attracted.
The High Court, however, allowed the writ petition on the ground that the petitioner was not considered for the post of Principal and as such his right under Article 16 of the Constitution of India stood infringed The operative part of the High Court judgment is as under: "Mr. V.K. Gupta has on the authority of Ajay Hasia 's case (supra) frankly conceded that the society being an instru mentality or agency of Government of India, was 'state ' for the purpose of Part III of the Constitution as such, the petitioner had a fundamental right to be considered for the post alongwith the third respondent.
He not having been so considered, and it also being admitted that he possessed the requisite qualifications, the rule of equality enshrined in Articles 14 and 16 of the Constitution stood clearly violat ed.
That being so, as in fact it is, the impugned order 519 passed by the second respondent appointing the third re spondent as the Principal of the School has to be quashed.
" Thereafter the Management advertised the post of Princi pal to be filled by direct recruitment on the basis of revised qualifications.
The advertisement was published in the 'Kashmir Times ' of January 5, 1982.
M.L. Mattoo filed another writ petition being Civil Writ Petition No. 29 of 1982 challenging the advertisement on the ground that the revised qualifications had not been validly prescribed and as such the post of Principal could only be filled on the basis of the pre revised qualifications.
According to him the revised qualifications were advertised only to make him ineligible for the post.
The main thrust of Mattoo 's argument was that his earlier writ petition was decided by the High Court on October 29, 1981 wherein the counsel for the Management conceded that he possessed the requisite qualifications for the post of Principal.
Admit tedly Matto does not possess the revised qualifications.
According to him the earlier writ petition was filed in the year 1979 and had the qualifications been revised by amend ing the rules in 1978, the counsel for the management would have certainly brought the same to the notice of the Court and since it was not done there was factually no amendment to the rules.
The High Court accepted the contention of Mattoo and allowed the writ petition by its judgment dated June 9, 1988 on the following reasoning: "It is stated in para No. 13 of their counter that qualifi cations were changed in August, 1978 with the approval of the Govt.
of India.
This statement is not accepted for two reasons one, that this was not the defence of the respond ents in writ petition No. 256/1979 in which petitioner 's eligibility was granted by the High Court for the post of Principal; and second, that after the decision of the High Court granting eligibility to the petitioner for the post of Principal in writ petition No. 256/1979, the respondents plea on the basis of some policy or note whereby qualifica tions were changed in 1978 prior to the filing of the writ petition No. 256/1979 cannot be now pressed into service nor would be permitted to be made because same will be barred by doctrine of constructive res judicata.
" The High Court quashed the advertisement dated January 5, 520 1982 and restrained the management from filling the post of Principal on the basis of the impugned advertisement.
The management has come up to this Court in appeal against the above said judgment of the High Court of Jammu and Kashmir.
The learned counsel for the appellant has invited our attention to the proceedings of the meeting of the manage ment of the School held on August 22, 1978.
It was decided in the said meeting that the person selected for the. post of Principal of the School must have academic background in Buddhist Philosophy in addition to the qualifications pre scribed under the Rules.
Thereafter the amended qualifica tions which have been reproduced above were prescribed by the Board of Management.
3 It is not disputed that the recruitment Rules could be altered by the Board of Management at any time with the sanction of the Government of India.
Mr. E.C. Agarwala appearing for the respondent M.L. Mattoo has, however, contended that the recruitment rules were never amended and in any case there was no sanction of the Government of India regarding the amended Rules.
Learned counsel for the appellant has invited our atten tion to the affidavit of Dr. (Mrs.) Kapila Vatsyayan, Chair man, Board of Management of the School filed before the High Court.
Dr. Kapila Vatsyayan is the Additional Secretary to Government of India in the Ministry of Education and Cul ture.
Para 13 of the affidavit is as under: "When in the year 1978, the question of appointment of a Principal of the school on regular basis was under the consideration of the Board of Management, it was held that keeping in view the objects of the school being a research Institution to propogate Buddhist Philosophy a thorough academic background in Buddhist Philosophy was considered as one of the essential qualifications for the post of Princi pal of the School as will be evident from the extract from brief note on Agenda item I considered in the meeting of the Board of Management held on 22nd August, 1978 Annexure IV.
Shri Tashi Paljore was appointed as Principal as stated in para No. 5 of the petition as he possessed this qualifica tion and was selected by a duly appointed Selection Commit tee.
The contention of the petitioner that this qualifica tion has been added now after the decision of writ petition No. 256 of 1979 is incorrect.
As 521 stated above, the qualifications were changed in August 1978 with the approval of Govt.
of India.
These qualifications are obviously very necessary for the fulfilling of the objectives of the Schools of Buddhist Philosophy, Leh (Ladakh).
In the absence of these qualifications, the very object for which the Institution exists is bound to be defeated.
The qualification has been provided the interest of the Institution and for the attain ment of the object for which it exists, namely imparting and propagating Buddhist Philosophy.
The Recruitment Rules of 1975, Annexure 'D ' to the petition were framed by the Board at that time.
Under the Rules and Regulations of the Board, the Board of Management is competent to amend the same. ' ' it is obvious from the affidavit of Dr. Kapila Vatsyayan reproduced above that the qualifications for the post of Principal were revised by amending the Rules and the revised qualifications were approved by the Government of India.
No. 1 rejoinder was filed by M.L. Mattoo to the above affidavit, The High Court was not justified in disbelieving the contents of the affidavit.
The rules are not statutory.
The Board of Management is fully competent to alter or amend the rules in any manner and at any time.
The affidavit by the Chairman of the Board of Management who is additional Secre tary to Government of India to the effect that the rules were amended in 1978 with the approval of the Government of India, should have put an end to the controversy.
We have no hesitation in holding that the qualifications for the post of Principal of the School stood validly revised by the amendment of the Rules in August, 1978.
Since respondent No. 1 Shri M.L. Mattoo does not possess the revised qualifica tions, he is not eligible to be considered for the said post.
In the earlier writ petition No. 256/1979 the question as to whether the qualifications for the post of Principal had been revised was not before the High Court.
The main contention of the Management, before the High Court, was that the Management society was not a 'State ' under Article 12 and as such no writ petition was competent.
At the hear ing the counsel for the management, however, conceded that the society was a 'State ' under Article 12 of the Constitu tion of India.
It is no doubt that the High Court has men tioned that it 522 was admitted by the counsel for the Management that Mattoo possessed the requisite qualifications for the post but we do not understand how in the face of categoric affidavit of Dr. Kapila Vatsyayan such a statement could be made before the High Court.
We, therefore, hold that the qualifications/experience for the post of Principal were validly revised by amending the Rules in August, 1978.
The advertisement issued on January 5, 1982 was in accordance with the Rules and the High Court was not justified in quashing the same.
We, therefore, allow the appeal, set aside the judgment of the High Court and dismiss the writ petition filed by M.L. Mattoo before the High Court.
There shall be no order as to costs.
Y. Lal Petition dismissed.

dataset_name: IN-Abs

summary/full:
Appointments to various posts in School of Budhist Philosophy, Leh, were governed by the Rules framed by the Board of management in the year 1973.
According to the said rules, the qualifications prescribed for the post of Princi pal as also for the Administrative Officer were identical.
In March 1973, one M.L. Mattoo, Respondent No. 1, who at that time was working as the Administrative Officer of the School was given the additional charge of the post of Prin cipal.
Thereafter the Board of management at its meeting held on 22.8.1978, decided that qualifications prescribed for the post of Principal should be revised, so as to make it obligatory for the Principal to have a thorough academic knowledge of Buddhist Philosophy the primary object of the institution being research and propagation of Budhist phi losophy.
A selection committee was constituted by the Board of management to appoint a suitable person as Principal of the school and one Tashi Paljor, was appointed as Principal.
Being aggrieved by the said appointment, Respondent No. 1, filed a writ petition in the High Court contending that he was removed from the additional charge without affording him an opportunity of being heard and further that he was not considered by the selection committee.
The High Court re jected the first contention but allowed the writ petition on the ground that he was not considered for the post of Prin cipal and thus his right under Article 16 was infringed.
Thereupon the management advertised the post of Principal to be filed by direct recruitment on the basis of the revised qualifications.
Respondent Mattoo challenged the advertise ment by means of a writ petition on the ground that the revised qualifications were not validly prescribed and as such the post of Principal could only be filled in on the basis of the pre revised qualifications.
He based his con tention on the concession made by the counsel for the man agement, when his earlier petition was heard, that the petitioner possessed the requisite qualifications.
According to him the rules have not been amended.
The High Court accepted the contention of Mattoo 516 and allowed the writ petition, quashed the impugned adver tisement and directed the management not to make appointment on the basis of the advertisement in question.
Hence this appeal by the Board of management of the school.
Allowing the appeal, this Court, HELD: The Board of management is fully competent to alter or amend the rules in any manner and at any time.
[521E] The qualifications/experience for the post of Principal were validly revised by amending the rules in August 1978.
The advertisement issued on January 5, 1982, was in accord ance with the Rules and the High Court was not justified in quashing the same.
[522B] Since respondent No. 1 does not possess the revised qualifications, he is not eligible to be considered for the said post.
[521F]