Lakshmikanta Jha, C.J:— First Appeal no. 31 of 1947 arises out of Title Suit no. 62 of 1944 in which the plaintiffs seek recovery of 9.64 acres of land as 7 annas 13 gandas and odd co-sharer landlords. First Appeal no. 278 of 1948 arises out of Title Suit no. 61 of 1944 in which the plaintiffs seek recovery of 5.625 acres of land as 4 annas 10 gandas and odd co-sharer landlords. First Appeal no. 279 of 1948 arises out of Title Suit no. 188 of 1945 in which the plaintiffs seek recovery of 4.375 acres of land as 3 annaa 10 gandas and odd co-sharer landlords. Thus the total area in dispute in the three suits is a little less than 20 acres, and the plaintiffs in the three suits (hereinafter referred to as the plaintiffs) seek recovery of possession of it from the defendants first party in each suit (hereinafter referred to as the defendants) as the next reversioners of one Ramdhan Singh to whom the land in dispute originally belonged.
Ramdhan Singh died childless sometime in 1872, leaving behind two widows, Manrup Kuer and Pari Kuer. On his death the widows came in possession of his estate. Manrup Kuer died in 1923 and Pari Kuer in 1933. On the death of the latter succession opened and a dispute cropped up between two sets claimants. The plaintiffs set up their reversionary right as gotias, whereas two other persons, Gaya Prasad Singh and Phalgu Prasad Singh, claimed preferential right as Ramdhan's daughter's sons and set; up a deed of surrender in their own favour executed by Pari Kuer. There were litigations between these two sets of rival claimants in the criminal court under section 145, Code of Criminal Procedure, for possession of some land and in the revenue court for mutation of names in respect of the zamindari property. In those cases Gaya and Phalgu succeeded. The plaintiffs had, therefore, to institute title suits against them for declaration of title and recovery of possession in respect of the entire heritage. Those suits were tried analogously and were decreed on the 23rd June, 1937, and the plaintiffs recovered possession of the properties through court on the 28th September, 1937 and the 6th October, 1937.
The land in dispute, which forms part of the estate of Ramdhan and is situated in what is known as Barahiya Tal, was recorded as bakasht in 1910 in the finally published record-of-rights of the cadastral survey. It appears that at about the time when the plaintiffs, got delivery of possession a Kisan movement was started in respect of the Tal land in Barahiya and other neighbouring mauzas. The plaintiffs' case is that the defendants, taking advantage of the agrarian movement, falsely set up tenancy right in the lands in dispute under an oral settlement from Ramdhan's widows, alleged to have been made by them in the year 1328 Fasli (1921). A proceeding under section 144, Code of Criminal Procedure, was started on the 4th November, 1937, with respect to 4.89 acres of land, but it was dropped on the 3rd January, 1938 (vide exhibit E1).
The Kisan movement created a serious agrarian trouble. In order to put a stop to the movement, an award committee was appointed by the District Magistrate of Monghyr for settlement of the disputes between the zamindars and the kisans with respect to the bakasht land in Barahiya Tal and other neighbouring places. And, according to the plaintiffs, 15.11 acres of land mentioned in schedule A1 to the plaint, which is part of the land in dispute, were wrongly given to Bankey Singh (defendant no. 5) under the award of the arbitrators, although they had no semblance of title or possession over the said land, and notwithstanding the award, they continued in possession, but towards the end of the year 1940 Bankey Singh started interfering with their possession with respect to 4.89 acres of land, and a proceeding under section 145, Code of Criminal Procedure, was started between them which terminated in favour of the said Bankey Singh. The allegation of the plaintiffs is that they were completely dispossessed from the entire land in the three suits as a result of the award of the arbitrators and the decision in the proceedings under section 145, Code of Criminal Procedure. Accordingly they instituted these suits on the 9th December, 1944, for recovery of possession of the land in dispute with mesne profits on the ground that the defendants were trespassers.
The defendants contested the suits and their case, in short, is that the plaintiffs' story of possession and dispossession is false, that Deonath Singh, father of Bankey Singh (defendant no. 5) obtained settlement of the entire disputed land, along with some other land, from Manrup Kuer and Pari Kuer, widows of Ramdhan, in 1328 Fasli, and that since then they have been in possession as raiyats and have acquired occupancy right therein. The suits, according to them, are therefore not maintainable.
The trial court on a consideration of the entire evidence adduced by the parties, held that the defendants were trespassers and that they failed to prove their case of settlement. The suits were accordingly decreed on the 26th November, 1946, with mesne profits. Thereupon the defendants preferred these three appeals to this Court on the 7th February, 1947. During the pendency of the appeals here the plaintiffs took out execution of the decrees and got delivery of possession of the disputed land. But later on, after the passing of an Act known as “The Barahiya Tal Lands (Declaration of Possession) Act, 1950” (hereinafter referred to as the Act), the disputed land was put in the hands of a receiver and Kaushal Kishore, a plaintiff in one of the three suits, was appointed receiver by this Court and he is in possession of the land in dispute as such.
From the preamble to the Act it appears that there was, as already stated, an agrarian movement in certain areas of Barahaiya Tal which attracted the attention of Dr. Rajendra Prasad (now the President of the Indian Union). He intervened and settled the principles according to which the dispute between the zamindars and the kisans was to be decided. Notwithstanding his decision the trouble continued, whereupon there was a meeting of the representatives of the Congress, the kisans and the zamindars and at that meeting certain persons were appointed arbitrators to decide the dispute. They gave their decision in the matter on the 20th May, 1939, according to which the land of the Tal was given to a number of persons. It is admitted that none of the persons interested in the award applied to any court, having jurisdiction over the subject-matter of the award, for filing of the award according to the provisions of schedule II, rule 20(1), Code of Civil Procedure, which was then in force. Nor was the award registered under section 17 of the Indian Registration Act. Under the orders of the Government, however, the lands found in possession of the raiyats according to the decision of the arbitrators were demarcated and maps and khesras were prepared accordingly. But the zamindars, including the plaintiffs, did not accept the decision of the arbitrators and suits were instituted for recovery of possession of the lands from the persons to whom they had been given under the award.
It was brought to our notice in the course of hearing of these appeals that one case actually came to this Court for hearing before Reuben, J. (S.A no. 17 of 1943) who by his judgment dated the 22nd March, 1944, affirmed the decision of the court of appeal below decreeing the zamindars' suit for recovery of possession.
In the suits before us, the trial court held, as already stated, that the defendants are trespassers. The long title of the Act shows that it was passed “to declare the possession of certain raiyats on certain lands of Barahaiya Tal and to nullify decrees and orders inconsistent with such possession”.
The Act is a short one consisting of only three sections. Section 1 gives the short title, and sections 2 and 3 read as follows:—
“2. The persons described in column 3 of the schedule shall be deemed to have been in possession as raiyats on the twentieth day of May, 1939, of the lands described in the corresponding entries in columns 4 and 5 thereof and shown in the maps attested by Mr. M.M Philip, I.C.S, Collector of Monghyr, on the thirty-first day of March, 1940, and kept in the record room of the Collector at Monghyr.
3. No suit or other legal proceeding shall lie in any Court to question the possession declared under section 2 and any decrea or order passed for made before or after the twentieth day of May, 1939, that may be inconsistent with such possession or anything done in pursuance thereof shall be null and void.”
There is a long schedule to the Act in which the names of the landlords are given in column 2, the names and descriptions of raiyats in column 3, the survey plot numbers in column 4 and the areas in column 5. On an analysis of the schedule, it appears that 506.33 acres of land in 36 tauzis under 43 maliks and situated in seven mauzas were given to 261 tenants.
In respect of the land in the three suits the name of Biseswar Singh, predecessor-in-interest of the plaintiffs, finds place in the column of landlords and the name of Bankey Singh, father of the defendants, in the column of tenants. The three suits out of which these three appeals arise are confined to the land recorded in the name of Bankey Singh.
An examination of the provisions of the Act shows that it was passed (1) to confer title as raiyats on certain specified persons in respect of certain specific portions of the Tal land in the Barahaiya Tal and declare their possession as tenants, (2) to bar suits or other legal proceedings in respect of such land in any court questioning the possession of those tenants, and (3) to nullify any “decree or order passed or made before or after the twentieth day of May, 1939, that may be inconsistent with such possession or anything done in pursuance thereof”.
Mr. Lal Narain Sinha, appearing for the appellants and the State, contended, as a preliminary point, that the appeals are not maintainable because the power of this Court to hear the appeals has been taken away by section 3 of the Act. The contention of Dr. Sultan Ahmed, on behalf of the plaintiffs, on the other hand, was that the Act is ultra vires the State Legislature because it is not with respect to any of the matters enumerated either in List II or List III of the Seventh Schedule of the Constitution. He also contended that, even if there be legislative competence, the Act is void under Article 13(2) because it infringes the fundamental rights of the plaintiffs guaranteed under. Articles 14 and 19(1)(f) of the Constitution. In short, his point was that the Act is void because (1) it restricts the right of enjoyment of property and the restriction is not either in the interests of the general public or for the protection of the interests of any Scheduled Tribe and thus abridges the fundamental rights of the plaintiffs “to hold property”, (2) it is expropriatory, (3) it is in the nature of a legislative judgment, and (4) it denies the equal protection of laws.
The important question for decision is whether the Act is constitutional. In deciding the question of the validity of an enactment, it is well-settled that we must start with a presumption in favour of its constitutionality. I may quote here the observation of Fazl Ali, J., in the case of Charanjit Lal v. Union of India(1) which runs as follows:—
“It is the accepted doctrine of the American Courts, which I consider to be well-founded on principle, that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.”
Similar views were expressed by Gwyer, C.J in re, The Central Provinces and Berar Act no. XIV of 1938(2) and by Kania, C.J in A.K Gopalan v. State Of Madras.(3).
It is, therefore, the duty of the court to uphold an Act of the legislature, if it be possible without, doing any violence to the meaning of the words used therein, to bring it into harmony with any of the provisions of the Constitution. Dr. Sultan Ahmed contended that this presumption is rebutted in the present case because it is not possible, even on a most, liberal construction, to bring the provisions of the Act under any of the legislative matters enumerated either in List II or List III of the Seventh Schedule of the Constitution. Mr. Lal Narain Sinha contended that the Act is constitutional and his argument was that the enactment is a law relating to “Arbitration” and is covered by Entry 13 of List III of the Seventh Schedule of the Constitution and that there is no infringement of any of the fundamental rights guaranteed by the Constitution. Entry 13 of List III of the Seventh Schedule is in these terms:—
“13 Civil Procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration.”
In my view, there is no provision in the Act which can be said to be a law relating to “arbitration”.
The State Legislature is, no doubt, competent to legislate on the topic of “arbitration”. But an examination of the provisions of the Act does not show that any law relating to “arbitration” has been enacted. A reference has been no doubt, made to the date on which certain arbitrators gave their decision, but no reference has been made to the award or to the arbitration proceedings either in the Act or in the preamble. There is nothing in section 2 of the Act relating to arbitration. It simply declares that—
“persons described in column 3 of the Schedule shall be deemed to have been in possession, as raiyats on the twentieth day of May, 1939, of the lands described in the corresponding entries is columns 4 and 5 thereof”.
Nor is there anything in section 3 of the Act laying down any rule of law with respect to arbitration. The Act is not, in my opinion, either directly or indirectly, on a matter relating to “arbitration”. There is not a word in the Act having even a remote bearing on the law relating to “arbitration”. The argument of Mr. Lal Narain Sinha does not get any support from the words used in the Act. It would, therefore, be doing violence to the meaning of the words used in the Act if it be held that it is a law, either in form or in substance, with respect to “arbitration”. This contention of the appellants must, therefore, be rejected.
The alternative argument of Mr. Lal Narain Sinha was that even if the Act be not a law relating to “arbitration”, the enactment must be held to be valid and constitutional because the provisions of section 2 of the Act are wholly covered by Entry 18 and those of section 3 by Entry 65 of List II of the Seventh Schedule of the Constitution. These two entries run as follows:—
“18. Land, that is to say, rights in or over land, land tenures Including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land: land improvement and agricultural loans; colonisation.
65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List”.
It cannot be disputed that the Constitution has given a very wide power to the State Legislature, to legislate on the topic of “land” whether agricultural or not. The word “land” has been used in the Constitution in its generic sense without any qualification. The words that follow the word “land” are simply explanatory and illustrative and do not in any way restrict itsmeaning or cut down the ambit of the legislative field. Lord Wright in Megh Raj v. Allah Rakhia while interpreting item 21 of List II of the Government of India Act, 1935, which is textually identical with entry 18 of List II of the Seventh Schedule of the Constitution, so far as the relevant words are concerned, observed:—
“The key to item 21 is to be found in the opening word, “land”. That word is sufficient in itself to include every form of land, whether agricultural or not. Land, indeed, is primarily a matter of provincial concern. The land in each province may have its special characteristics in view of which it is necessary to legislate, and there are local customs and traditions in regard to land-holding and particular problems of provincial or local concern which require provincial consideration. It would be strange if the land in a province were to be broken up into separate portions, some within and some outside the legislative powers of the province. Such a conflict of jurisdiction is not to be expected. Item 21 is part of a constitution and would, on ordinary principles, receive the widest construction, unless for some reason it is cut down either by the terms of item 21 itself or by other parts of the Constitution, which has to be read as a whole. As to item 21, “land”, the governing word, is followed by the rest of the item, which goes on to say, “that is to say”. These words introduce the most general concept “rights in or over land”. “Rights in land” must include general rights like full ownership or lease hold or all such rights. “Rights over land” would include basements or other collateral rights, whatever form they might take. Then follow words which are not words of limitation but of explanation or illustration, giving instances which may furnish a clue for particular matters: thus there are the words “relation of landlord and tenant, and collection of rents”. These words are appropriate to lands which are not agricultural equally with agricultural lands. Rent is that which issues from the land. Then the next two sentences specifically refer to agricultural lands, and are to be read with items 7, 8 and 10 of List III. These deal with methods of transfer or alienation or devolution, which may be subject to federal legislation, but do not concern the land itself, a sphere in which the provincial and federal powers are concurrent, subject to the express exception of the specific head of agricultural land which is expressly reserved to the provinces. The remainder of item 21 specifies important matters of special consequence in India relating to land. The particular and limited specification of agricultural land proves that “land” is not used in item 21 with restricted reference to agricultural land but relates to land in general.”
Thus it is clear that the State Legislature is competent to legislate with regard to any interest in or over land of all classes whether agricultural or not and if any of the fundamental rights guaranteed by Part III of the Constitution is indirectly affected as a result of the operation of such legislation, the enactment cannot be said to be unconstitutional. The State Legislature can, therefore, in exercise of its power under the Constitution, create, extinguish, limit or even revive lost rights in respect of land generally. Entry 18 gives widest power to the legislature of the State in Part A or Part B of the First Schedule of the Constitution to regulate the relation of landlord and tenant in respect of any land by an appropriate legislation. But an examination of the provision of section 2 of the Act does not show that the State Legislature has enacted any law relating to land. The only purpose of the Act is to treat the possession of the persons mentioned in column 3 of the Schedule to the Act as raiyats on & particular date in respect of the lands mentioned against their names. The dominant purpose of the Act is really to give legislative recognition to the possession of those persons and treat them as raiyats of the persons mentioned in column 2 of the Schedule to the Act in respect of the land mentioned against their names in columns 4 and 5 thereof. Therefore, the enactment is concerning rights of persons but does not concern the land itself. In substance and spirit, the Act undertakes to take the property of the plaintiffs and transfer it to the defendants. A statute of this kind, therefore, in my judgment, cannot be said to be a law at all, much less a law relating to land. In Central Pacific R.R Co. v. Gallatin, Strong, J. in a dissenting judgment held that “a statute undertaking to take the property of A and transfer it to B is not legislation. It would not be a law”.
Even if the view that I have taken be not correct and the Act be held to be a law relating to land, creating relation of landlord and tenant, there is no escape from the conclusion that the enactment is a direct legislation with respect to the land belonging to the plaintiffs and other landlords and therefore, in my view, notwithstanding legislative competence the Act is unconstitutional because it directly infringes the plaintiffs' fundamental right guaranteed by Part III of the Constitution. The people of free India, who have given the Constitution, have, in the exercise of their Sovereign power, guaranteed to every citizen by Part III of the Constitution the right “to acquire, hold and dispose of property” and certain other rights which are sacred and inviolable and are inherent in the citizens of every free country. Article 13(1) provides that any existing law inconsistent with or in derogation of the fundamental rights so guaranteed shall, to the extent of such inconsistency, be void, and in clause (2) thereof it is provided that the State shall not make any law which takes away or abridges the rights conferred by Part III, and any law made in contravention thereof shall, to the extent of the contravention, be void.
Article 19 is important. It guarantees a number of rights, but we are concerned here only with right to property. By clause (1)(f) all citizens have been guaranteed “the right to acquire, hold and dispose of property”. But this right is not absolute. The State may impose “reasonable restrictions” on the exercise of the proprietary rights, provided such restrictions are necessary in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Article 19(5) provides:—
“Nothing in sub-clauses (d), (c) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe”.
The underlying principle of clause (5) of Article 19 is that the individual right of full enjoyment of proprietary interest may be restricted in the larger interests of the general public or for the protection of the interests of any Scheduled Tribe, provided the restrictions imposed are reasonable. If, therefore, a law imposes any restriction which is not in the interests of the general public or for the protection of the interests of any Scheduled Tribe, such a law must be held to be unconstitutional even if reasonable. Restriction, as held in Gopalan's case implies a partial control. Therefore, if a citizen holds a property, his right of enjoyment may be partially controlled in the larger interests of the general public or for the protection of the interests of the Scheduled Tribe.
It would not be out of place here to refer to Article 31 of the Constitution which also finds place in Part III thereof. The material portions of the Article, which are relevant for our purpose, are clauses (1), (2) and (5)(b) which are as follows:—
“31.(1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.
(5) Nothing in clause (2) shall affect—
(b) the provisions of any law which the State may hereafter-make—
(i) for the purpose of imposing or levying any lax or penalty, or
(ii) for the promotion of public health or the prevention of danger to life or property, or
(iii) ***
Thus it is clear that not only a person's right to hold property is subject to reasonable restrictions, but he may also be deprived of his property by authority of law, and the property of a person, movable or immovable, may be taken possession of or acquired by the State in exercise of the right of what is known in America as the right, of “eminent domain” for public purposes provided there is a law authorising the taking of such possession or such acquisition and the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which the compensation is so determined. Similarly, in exercise of what is known in America as the police power of the State, a person may be deprived of his property under the provisions of any statute law for the purpose of imposing or levying any tax or penalty, or for the promotion of public health or the prevention of danger to life or property, and in such a case provision for compensation is not necessary.
From an examination of the provisions of Article 19(1)(f), read with clause (5) thereof, and Article 31, clauses (1), (2) and (5), the following propositions are clearly established: (1) reasonable restraint can be imposed on the right of enjoyment either in the interests of the general public or for the protection of the interests of any, Scheduled, Tribe, (2) acquisition may be made or possession may be taken of any property, movable or immovable, of any person for public purposes in exercise of the right of “eminent domain” for compensation and (3) a person may be deprived of his property, by authority of law, by the State in exercise of “police power” for the purpose of imposing or levying any tax or penalty, or for the promotion of public health or the prevention of danger, to life or property even without compensation.
It is, therefore, clear that no property can be acquired or taken possession of, nor any restraint, reasonable or otherwise, imposed on the proprietary right of any person in the interest of any individual or individuals. In other words, the State cannot deprive a person of his proprietary right or impose a restraint (reasonable or not) on his right of enjoyment to benefit an individual or individuals. It follows, therefore, as a necessary corollary, that if by any legislative enactment property of A is transferred to B. such enactment cannot be said to be valid and constitutional and must be ignored as if it did not exist, because the Constitution does not empower the legislature to make such a law.
Article 245 of the Constitution imposes a limitation on the power of the legislature. It provides that the legislature of a State may make laws for the whole or any part of the State “subject to the provisions of the Constitution” which necessarily implies that the legislature can make laws subject to the provisions of Part III of the Constitution. Therefore, though generally the legislature has plenary power to legislate with respect to any matter within its own ambit, its enactment must be incompetent and void if in exercising that power it directly affects any right guaranteed by Part III of the Constitution and transgresses the limitations within which the legislation is permissible under the provisions of that Part. Kania, C.J, in A.K Gopalan v. State Of Madras. observed as follows:—
“If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peaceably and without arms, etc., the question whether that legislation is saved by the relevant saving clause of Article 19 will arise. If, however, the legislation is not directly in respect of any of these subjects, but as a result of the operation of other legislation, for instance for punitive or preventive detention, his right under any of these sub-clauses is abridged, the question of the application of Article 19 does not arise. The true approach is only to consider the directness of the legislation and not what will be the result of the detention otherwise valid, on the mode of the detenu's life”
(italics are mine).
Therefore, even if the legislation be with regard to land, it directly creates a relationship of landlord and tenant between the plaintiffs and the defendants in respect of the plaintiffs' bakasht land. It is a special enactment, the provisions of which impose a limitation on the proprietary right of the plaintiffs and other landlords mentioned in the Schedule to the Act. The plaintiffs' right to hold and enjoy their bakasht land as full owners thereof is abridged because restrictions have been imposed upon their proprietary right to enjoy their bakasht lands and these restrictions are not either in the interests of the general public or in the interests of any Scheduled Tribe as required by Article 19, clause (1)(5). The provisions of section 2 of the Act are not, therefore, within the limits imposed by Article 19, clause (5), of the Constitution because the plaintiffs' right of enjoyment of the rents and profits issuing from the bakasht lands has been directly curtailed and restricted by the legislature by creating a tenancy right to benefit the defendants who do not constitute a class. It may be mentioned here that Mr. Lal Narain Sinha conceded that it is not his case that under the Act the land in dispute has been acquired or taken possession of for, compensation, nor does the Act pretend to acquire the land in dispute from the plaintiffs or deprive them of their khas possession for compensation or otherwise. Therefore, even on the assumption that the Act is a legislation with respect to agricultural land, section 2 of the Act cannot be said to be constitutional because it offends the provisions of Article 19(1)(f), read with Article 19(5), of the Constitution and is in the nature of an exproprietary legislation.
Now the question for decision is whether section 3 of the Act is ultra vires the State Legislature. By the first part of the section the plaintiffs' right to sue in any court to question the possession of the defendants declared under section 2 of the Act has been taken away, and by the second part any decree or order of the court passed or made before or after the twentieth day of May, 1939, inconsistent with such possession of the defendants or anything done in pursuance thereof, has been nullified and declared void. Thus, the legislature has by this section not only taken away the jurisdiction of the courts but has also reversed their decisions.
The power of the State Legislature to take away the jurisdiction of the court by a legislative enactment cannot be questioned, but the legislature has no power to enact a law to nullify decree's or orders of court and declare them void because such a power is judicial in its nature. Entry 3 of List II of the Seventh Schedule empowers the legislature to legislate with respect to administration of justice, constitution and organisation of all courts, except the Supreme Court and the High Court. Entry 65 of List II empowers the legislature, to legislate with respect to jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in List II. Similarly, Entry 46 of List III empowers the State Legislature to legislate with respect to the jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in List III. Thus it is clear that the State Legislature has power to take away the jurisdiction and powers of all courts (including the High Court) except the Supreme Court, with-respect to any of the matters in List II or List III of the Seventh Schedule. The Supreme Court in the case of the State of Bombay v. Narottamdas Jethabhai has held that the State Legislature is competent to legislate, negatively as well as affirmatively, with regard to the jurisdiction of the courts with respect to the matters within its legislative ambit and that it can bar the jurisdiction of the courts in regard to those matters in respect of which it has power to make laws under List II or List III. Therefore, in view of the decision of the Supreme Court it must be held that it is within the competence of the State Legislature to take away the jurisdiction of courts. But the State legislature is not, in my opinion, competent to reverse the decisions and orders of courts and nullify their effect in exercise of such powers because the power to nullify the decrees and orders of a court is purely a judicial power and the Constitution does not appear to have given jurisdiction to the legislature, either expressly or by necessary intendment, to arrogate to itself the power to adjudicate—a power which is exclusively within the jurisdiction of the court.
Under the Constitution, the governmental powers are divided into legislative, executive and judicial. The legislative power has been delegated to the legislature and distributed between the Parliament and the legislature of the States in Parts A and B of the First Schedule of the Constitution under Article 246. The matters with respect to which the Parliament and the State Legislatures are competent to legislate have been enumerated in Lists I, II and III of the Seventh Schedule of the Constitution. The Parliament has exclusive jurisdiction to make laws with respect to any of the matters enumerated in List I. The legislature of any State specified in Part A or Part B of the First Schedule of the Constitution has exclusive jurisdiction to legislate with respect to any of the matters enumerated in List II and the Parliament and the legislature of any State specified in Part A or Part B of the First Schedule have concurrent jurisdiction to legislate with respect to any of the matters enumerated in List III subject to certain limitations. By Article 248 the Parliament has been given exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List. The residuary power of legislation is, therefore, vested exclusively in the Parliament.
The executive power of the Union is vested in the President by Article 53 of the Constitution, which is to be exercised by him either directly or through officers subordinate to him. Similarly, the executive power of the State is vested by Article 154 in the Governor and is to be exercised by him either directly or through officers subordinate to him.
Thus, it is clear that the Constitution defines and delimits the powers of the legislature and the executive and, although the existence of the judiciary is assumed and recognised under the Constitution and even establishment of additional courts provided for, its powers have not been defined. But it is well settled that when a department is created by the Constitution for the exercise of judicial authority, the Constitution contemplates the whole judicial power to be exercised by the judicial department alone with such exceptions only as the Constitution itself may make. Cooley in his treatise on Constitutional Limitations states the law thus:
“The different classes of power have been apportioned to different departments; and as all derive their authority from the same Instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others.”
(Cooley's Constitutional Limitations, Eighth Edition, Vol. I, page 175.)
And at page 177 he says:—
“The frame of the government, the grant of legislative power itself, the organisation of the executive authority, the erection of the principal courts of Justice, create implied limitations under the law making authority as strong as though a negative was expressed in each instance.”
The law in India is not different, for Spens, C.J observed in Piare Dusadh's case:—
“As a general proposition, it may be true enough to say that the legislative function belongs to the legislature and the judicial function to the judiciary. Such differentiation of functions and distribution of powers are in a sense part of the Indian law as of the American law.”
I have already stated that the preamble to the Act shows that there were disputes between the landlords and the tenants mentioned respectively in columns 2 and 3 of the Schedule to the Act in respect of the land fully set out in the Schedule. The Act purports to quiet title and give legislative finality to the decision of the arbitrators by making the matter non-justiciable. The effect of the enactment, however, is directly to reach the property of the plaintiffs by providing for transfer to the defendants, without trial and judgment in courts. Thus, by the Act, the legislature has passed the plaintiffs property to the defendants. Such a power has not been, as already stated, vested in the legislature by the Constitution. Willis states the law thus:—
“It may be stated that a legislature, has no power to reverse a judgment rendered by a court. Neither can it modify a judgment, nor impair the remedies by which it may be enforced. A legislature cannot directly adjudicate controversies.”
(Willis on Constitutional Law, page 159.)
Cooley puts the same point thus:—
“A legislative enactment to pass one man's property over to another would nevertheless be void. If the act proceeded upon the assumption that such other person was justly entitled to the estate, and therefore it was transferred, it would be void, because judicial in its nature; and if it proceeded without reasons, it would be equally void, as neither legislative nor judicial, but a mare arbitrary fiat.”
(Cooley's Constitutional Limitations, Eighth Edition, Volume I, page 357.)
And in the footnote of the same page he says:—
“It is now considered a universal and fundamental proposition in every well regulated and properly adminisiered government, whether embodied in a constitutional form or not, that private property cannot be taken for strictly private purposes at all, nor for public uses without a just compensation; and that the obligation of contracts cannot be abrogated or essentially impaired. These and other vested rights of the citizen are held sacred and inviolable, even against the plenitude of power of the legislative department.”
I may refer again to the observations of Strong, J. in Central Pacific R.R Co. v. Gallatin, who, while holding that the property of A cannot be transferred to B by a legislative enactment observed:—
“It would not be a law. It would be a decree or sentence, the right to declare which, if it exists at all, is in the judicial department of the government. The Act of Congress is little, if any more. It does not purport to be a general law. It does not apply to all Corporations or to all debtors of the government. It singles out two. Corporations, debtors of the government, by name and prescribes for them as debtors new duties to their creditors. It thus attempts to perform the functions of a court. This, I cannot but think, is outside of legislative action and power.”
Therefore, in my judgment, although the legislature has power to reopen past controversies and make laws, even retrospectively, or repeal a statute or modify it, or even to pass a validating Act, it has no power to reverse the decisions of any court because such a power, in its nature, is essentially judicial and has not been conferred on the legislature by the Constitution, either expressly or impliedly. The provision of section 3 of the Act must, therefore, be held to be void and ultra vires the State legislature.
Mr. Lal Narain Sinha strongly relied upon the decision in Piare Dusadh's case and contended on its authority that the State Legislature is competent not, only to take away the jurisdiction of the court but also to nullify the effect of decrees passed or orders made by any court and reopen a past controversy and set the controversy at rest by a legislative action. But I do not think the decision in Piare Dusadh's case supports the extreme contention of Mr. Lal Narain Sinha that the legislature is competent not only to nullify decrees or orders of court and reopen past controversies but also to set at rest such controversies by a legislative action. The law in America is that the legislative function belongs to the legislature and the judicial function belongs to the judiciary, and one result of the application of this rule in the United States has been to hold that “legislative action cannot be made to re-troact upon past controversies and to reverse decisions which the courts in the exercise of their undoubted authority have made”. Therefore, according to the American authorities, the legislature is incompetent to make retrospective laws because this would amount to usurpation of the functions of courts. Relying upon the American view it was contended before the Federal Court that the legislature in India is equally incompetent to legislate retrospectively. But this argument was repelled and it was held that making retrospective laws is not exercise of a judicial function. In repelling this argument Spens, C.J observed (at page 101-102):—
“In India, however, the legislature has more than once enacted laws providing that suits which had been dismissed on a particular view of the law must be restored and retried. Two well-known instances are section 31(2) of the Indian Limitation Act, 1908, which provided for the restoration of suits dismissed on the ground that the twelve years' period of limitation under Article 132 of the Limitation Act applied to suits, for sale by holders of simple mortgages and the Public Suits Validation Act (XI of 1932) which provided for the restoration of suits dismissed on a particular interpretation of section 93 of the Code of Civil Procedure. Again, debt relief legislation in the various provinces has provided even for the reopening of decrees passed inter partes. In view of the history of the rule in America, it is questionable whether it would be right to apply the same rule in this country. Further, the American authorities themselves show that, even in the United States, limitations had to be placed on the strict American rule and that it was not found possible to differentiate by a clear cut definition the exercise of legislative power from the exercise of judicial power. (See Willis' Constitutional Law of the United States, page 142.)”
The learned Chief Justice, relying upon the views of Isaacs and Starke, JJ. in Federal Commissioner of Taxation v. Munro as well as the legislative practice in India, held that making a law retrospective is not an exercise of the judicial power on the part of the legislature.
Another extreme contention raised was that what; the Ordinance had attempted to do amounted to exercise of judicial function. Again at another place the learned Chief Justice observed:—
“The legislature has not attempted to decide the question of the guilt or innocence of any of the accused. That question had as a matter of fact been decided by tribunals which were directed to follow a certain judicial procedure.”
(The italics are mine.)
Therefore, Piare Dusadh's case is an authority for the proposition that in India the legislature is competent to put an end to the finality of a decision of court and reopen a past controversy and even to pass validating Acts and that making such laws does not constitute exercise of judicial function; but it is not an authority for the proposition that, after the transaction is reopened and the finality is put an end to, the legislature can set at rest the controversy between the parties by a legislative pronouncement—a function which belongs exclusively to the court.
Even if it be assumed that Piare Dusadh's case is an authority for the proposition that the State Legislature is competent to nullify decrees or orders of court by a legislative enactment, the Act cannot, in my judgment, be held to be constitutional because the plaintiffs' right to hold property is restricted by the Act in derogation of the provisions of Article 19(5) of the Constitution. The land in dispute being admittedly bakasht, the plaintiffs have right of khas cultivation, but under the Act their right to khas possession has been taken away and the landlords are to remain in possession through certain tenants who shall be deemed to be raiyats under them. Thus a restriction has been imposed by the Act on their right of enjoyment. This restriction is not either in the interests of the general public or for the protection of the interests of any Scheduled. Tribe nor is the restriction reasonable. The Supreme Court has recently considered the question of reasonableness in the case of Chintamanrao v. The State of Madhya Pradesh and Mahajan, J. has held that “The word ‘reasonable’ implies intelligent care and deliberation, that is the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness”. Therefore, the Act must be held void and unconstitutional by reason of Article 19(5) of the Constitution.
A similar point came up for consideration before a bench of the Calcutta High Court in the case of Subodh Gopal v. Behari Lal and it was held by their Lordships that section 7 of the impugned Act—the constitutionality of which came up for consideration—was ultra vires Article 19(1)(f) read with Article 19(5) of the Constitution. The facts of that case were shortly these: One entire tauzi was sold at a revenue sale and purchased by the plaintiff of that suit. After purchase the plaintiff annulled the under-tenures and tenancies which he was entitled to avoid and annul 3 under section 37 of Act XI of 1859, as it stood at the date of the sale and at the date of the institution of the suit. After the annulment the purchaser instituted a suit for ejectment of the persons in possession of such tenures. The suit was contested by one of the defendants. The learned trial judge overruled the objections of the defendant and passed a decree in favour of the plaintiff by his judgment dated the 14th February, 1949. The defendant thereupon preferred an appeal on the 25th March, 1949, to the District Judge. During the pendency of the appeal the West Bengal Legislature passed an Act called. “The Bengal Land Revenue Sales (West Bengal Amendment) Act, 1950”, which received the assent of His Excellency the Governor on the 15th March, 1950, and was published in the Calcutta Gazette (Extraordinary) of that date. The defendant relied upon the Act and contended that the plaintiff's right to claim recovery of possession was barred by the provisions of section 7 of the Act. Thereupon, the plaintiff moved the High Court and contended that the Act was ultra vires.
The preamble of the Act is:
“Whereas it is expedient further to amend the Bengal Laud Revenue Sales Act, 1859, in its application to West Bengal, for the purposes and in the manner hereinafter appearing”.
By that Act section 37 of Act XI of 1859 was, replaced by section 4 of the amending Act of 1905. Section 4 of the amending Act provided that the purchaser is not entitled to annul tenure's and tenancies such as he could do under, section 37 of the Act of 1859. In the Act there was another important provision which is embodied in section 7 of the amending Act which is as follows:—
“7.(1)(a) Every suit or proceeding for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act, and
(b) every appeal or application for review or revision arising out of such suit or proceeding, pending at the date of commencement of this Act, shall, if the suit, proceeding, appeal or application could not have been validly instituted, preferred or made had this Act been in operation at the date of the institution, the preferring or the making thereof, abate.
(2) Every decree passed or order made, before the date of commencement of this Act, for the ejectment of any person from any land in pursuance of section 37 or section 52 of the said Act, shall, if the decree or order could not have been validly passed or made had this Act been in operation at the date of the passing or making thereof, be void:
Provided that nothing in this section shall affect any decree or order in execution whereof the possession of the land in respect of which the decree or order was passed or made, has already been delivered before the date of commencement of this Act.
(3) Whenever any suit, proceeding, appeal or application abates under sub-section (1) or any decree or order becomes void under sub-section (2), all fees paid under the Court-fees Act, 1870, shall be refunded to the parties by whom the same were respectively paid.”
It was contended, on behalf of the plaintiff, that section 7 violates the fundamental right assured to him by Article 19(1)(f) of the Constitution to acquire, hold and dispose of property and as such is void, under Article 13. Dealing with this part of the argument, Harries, C.J observed at page 441:—
“The right to hold property is the right to exercise and enforce all the rights which the ownership of property or of any interest therein involves. If any of these rights are taken away or prejudicially affected, the right to hold such property has to that extent been affected or restricted. Where any rights are taken away or abridged the owner of the property holds the property with restricted rights therein. His right of enjoyment has been curtailed or restricted and therefore it appears to me to be clear that section 7 of the amending Act does impose restrictions on the holding of property.”
Again at page 442 he observed:—
“Section 7 is prima facie unreasonable and prima facie does impose an unreasonable restriction on the petitioner's fundamental right to hold property.”
He accordingly held: “In my judgment section 7 of this amending Act is ultra vires Articles 19(1)(f) and 19(5) of the Constitution.”
The validity of section 3 of the Act was challenged by Dr. Sultan Ahmed also on the ground that it offends the provisions of Article 14 of the Constitution. I think there is much substance in this contention Article 14 provides that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. This Article is based on the last part of the Fourteenth Amendment to the Constitution of the United States of America which is in these terms: No State shall “deny to any person within its jurisdiction the equal protection of the laws”. The equality, clause of the Constitution does not forbid the State to classify the citizens into groups and legislate for them. But the classification must not be unreasonable and arbitrary. The law with regard to the equality clause is well settled in America. In Barbier v. Connolly, Field, J. in delivering the opinion of the Court, said “Class, legislation, discriminating against some and favouring others, is prohibited”. In Hayes v. Missouri the same learned Judge, relying upon that decision, stated the law thus:—
“The Fourteenth Amendment to the Constitution of the United States does not prohibit legislation which is limited either in the objects to which it is directed, or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.”
In the case of Gulf, C. & S.F.R Co. v. Ellis it was held:—
“Whether a statute be public or private, general or special in form, if it attempts to create distinction and classification between the citizens of this State, the basis of such Classification must be statural and not arbitrary. Arbitrary selection can never be justified by calling it classification.”
Willis has succinctly stated the law thus:—
“The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate.”
(Willis on Constitutional Law, page 579.)
The Supreme Court had to interpret Article 14 of the Constitution in the case of Charanjit Lal v. Union of India and Fazl Ali, J. held:—
“A proper classification must always rest upon some difference and must bear a reasonable and just relation to the things in respect of which it is proposed.”
In the same case Mukherjea, J. stated the law thus:—
Classification “must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect to which the classification is made; and classification made without any substantial basis should be regarded as invalid.”
Applying the tests laid down in the authorities noticed above, I think section 3 of the Act offends the provision of Article 14 of the Constitution. The Act does not pretend to make any classification, nor is there any rule of law laid down in the Act applicable to all alike. Individuals have been singled out as a special subject and discriminatory law has been passed against them. Even if it be assumed that those who subjected themselves to the jurisdiction of arbitrators constitute a class, the basis of the classification is not only unnatural and arbitrary but highly unreasonable. The Act makes differential treatment between the landlords and tenants for whose benefit it is intended. The landlords, including the plaintiffs, are forbidden to seek relief in court but there is no such limitation imposed upon the tenants, including the defendants, or any other landlord of the locality. Thus there is a complete denial of equality before the law to the landlords governed by the Act. In this connection it is apposite to quote the following passage from the judgment of Brewer, J. in Gulf, C. & S.F.R Co. v. Ellis:—
“It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the courts upon equal terms. They must pay attorneys' fees if wrong: they do not recover any if right and pay nothing if wrong. In the suits, therefore, to which they are parties they are discriminated against, and are not treated as others. They do not stand equal before the law. They do not receive its equal protection. All this is obvious from a mere inspection of the statute.”
Therefore, on a careful consideration of the points raised before us, I am of the opinion that the Act is not in conformity with the provisions of Articles 14, 19(1)(f) and 19(5) of the Constitution and must be declared ultra vires the State legislature.
Coming to the merits, the points for decision are: (1) whether the defendants have proved their case of settlement as alleged, and (2) whether the plaintiffs' suit is in time.
On a careful consideration of the documents relied upon by the defendants, I am of the view that the defendants have failed to prove their tenancy right and the judgment of the trial court cannot be interfered with.
The next question that arises for consideration is whether the suit is in time and the plaintiffs are entitled to recover possession of the land in dispute from the defendants. The learned Subordinate Judge has held that the defendants came into possession of the land in dispute during the life-time of the widows. It does not appear when the defendants trespassed on the land in dispute. But even if they came in possession in the life-time of the widows, limitation could not run against the plaintiffs until they became entitled to possession after the death of the widows.
Musammat Manrup Kuer died in 1923 and Musammat Pari Kuer in 1933. The present suits were instituted within twelve years of the death of Husammat Pari Kuer. The plaintiffs are, therefore, entitled to recover possession from the defendants who are trespassers. The suit must, therefore, be decreed with mesne profits.
I may mention that one Murli Singly who was the first cousin of Bankey Singh (defendant no. 5) was impleaded as defendant no. 6 in all the three suits and decrees were passed against him and others. In First Appeal no. 279 of 1948 he has been impleaded as respondent no. 7 but he has not been made party in the other two appeals. An application was made before us to add him as party in these two appeals. We were satisfied that no sufficient grounds have been made out to induce us to allow the prayer. We accordingly rejected the application. The prayer of the defendants having been rejected, First Appeals nos. 31 of 1947 and 278 of 1948 are incompetent and must be dismissed on the ground of defects of parties also because there is possibility of two inconsistent decrees.
There are three miscellaneous appeals also (Miscellaneous Appeals nos. 195 to 197 of 1947). After the decree was passed, the plaintiffs applied for delivery of possession. The defendants filed an objection and alleged that the plaintiffs were not entitled to get delivery of possession. The learned Subordinate Judge by his order, dated the 12th July, 1947, rejected the objection and passed an order for delivery of possession. These three Miscellaneous Appeals are directed against that order. The point urged before us by the defendants is that the decree is incapable of execution. I do not think there is any substance in this contention. The trial court has by its decree ordered recovery of possession of the land in dispute with mesne profits. Such an order is capable of execution; Whether the plaintiffs will get joint possession or symbolical possession or khas possession is a matter which may be determined in an appropriate proceeding between the landlords themselves. The defendants have no right to raise any objection on that ground. The learned Subordinate Judge is right in rejecting the objections of the, defendants. These appeals are accordingly dismissed.
So far as Title Suits nos. 33 and 34 of 1947 are concerned, these should now be sent back to the lower court for disposal, with a copy of this judgment, so far as it relates to the constitutional point involved, as required by section 228(2) of the Constitution.
Chatterji, J.:— I agree, except that so far as section 2 of the impugned Act is concerned, it cannot, in my opinion, be said to be a legislation not relating to “land” referred to in item no. 18 in list 2 of the Seventh Schedule to the Constitution. The main object of the Act, as its preamble shows, was to set at rest the dispute which was going on with regard to Barahiya Tal lands. On the one hand, the proprietors claimed the lands as bakasht, while, on the other, certain persons claimed them as their raiyati. Section 1 of the Act describes it as the “Barahiya Tal Lands (Declaration of Possession) Act”. By section 2, in substance, the raiyati rights of the persons mentioned in column 3 of the schedule to the Act are declared. It is true that the heading of the Act shows that it was an Act “To declare the possession of certain raiyats on certain lands of Barahiya Tal”. But truly speaking, the Act purports to declare raiyati rights over lands. The lands were the real cause of dispute, and if the Act was passed in order to put an end to that dispute, it is, in my opinion, difficult to told that it is not a legislation relating to “Land”.
Order accordingly.
S.H