Sarwar Ali, A.C.J:— in this writ application the petitioners challenge the vires of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (the ‘Act’). But before dealing with the contentions raised, I may state the relevant facts leading to the filing of this writ application. I would also indicate the relevant statutory provisions.
2. The facts
3. The petitioners filed Title Suit No. 103 of 1966. The suit was pending in the court of the Additional Subordinate Judge, Muzaffarpur, when the impugned order contained in Annexure 5 was passed., in the suit the petitioners-plaintiffs alleged that certain alienation made by defendant first party in favour of defendant second party were not binding on the plaintiffs. It was therefore, prayed that the said alienation be set aside and the plaintiffs be put in possession of the properties mentioned in Schedule I to the plaint. The properties in the suit are situate in several villages. In all these villages according to the finding of the learned Additional Subordinate Judge, consolidation proceedings are going on. An application was filed on behalf of the defendants stating that consolidation operation had commenced in all the village where the lands involved in the suit are situate. It was, therefore prayed that it should be held that the suit has abated under the provisions of Section 4(c) of the Act. A rejoinder was filed to this application. After hearing the parties, the suit has abated. The order of the learned Subordinate Judge is contained in Annexure 5. It is this annexure, which the petitioners pray, be quashed.
4. Statutory Provisions:—
5. The long title itself and the preamble of the Act clearly reflect the purpose of the Act. It is to provide for consolidation of holdings and to prevent fragmentation of land. Section 3 of the Act empowers the State Government to declare by notification in the official gazette its Intention to make a scheme for consolidation of holdings in the area mentioned in the notification. Section 4 of the Act deals with the effect of notification aforesaid. Section 4 of the Act reads as follows:—
“4. Effect of notification under Section 3(1) of the Act:—
Upon the publication of the notification under Sub-section (1) of Section 3 in the official gazette the consequences, as hereinafter set forth, shall subject to the provisions of this Act, from the date specified in the notification till the close of the consolidation operation, ensue in the area to which the notification relates, namely—
(a) the district or part thereof, as the case may be, shall be deemed to be under consolidation operations and duty of preparing and maintaining the record of rights and the village map of each village shall be performed by the Director of Consolidation, who shall prepare or maintain them, as the case may be, in the manner prescribed;
(b) no suit or other legal proceeding, in respect of any land in such areas shall be entertained in any court, and in calculating period of limitation applicable to such suits and proceedings such period shall not be counted:
Provided that nothing in this clause shall apply to any proceeding under Section 48(E) of the Bihar Tenancy Act, 1885 (Act 8, 1885) and to the proceedings relating to the recording of the titles of Bataidars:
(c) every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area or for declaring adjudication of any other right in regard to which proceedings can or ought to betaken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated,:
Provided that if the State Government empowers any other officer appointed under this Act to dispose of any proceeding relating to survey settlement operations under the provisions of Chapter X of the Bihar Tenancy Act, 1885 (Bihar Act VIII of 1885), or Chapter 12 of Chotanagpur Tenancy Act, 1908 (Bengal Act 6, 1908) or Santhal Parganas Settlement Manual, 1872 (Manual 3, 1872) and transfer such proceeding to such Officer for disposal, then the proceeding shall not abate or shall not be considered to have been abated:
Provided also that no such order shall be passed without giving to the parties notice by post or in any other manner that may be convenient and after giving them an opportunity of being heard:
Provided further that such abatement shall be without prejudice to the rights of the persons affected to agitate the right or interest in dispute in the said suits or proceedings before the appropriate consolidation authorities under and in accordance with the provisions of this Act and the rules made thereunder:
Provided that the State Government may, by notification in the Official gazette, exempt any such proceeding, suit, appeal, reference or revision, or any class of them, if in its opinion their abatement is not in public interest, and is not necessary for the purposes of this Act:
Provided further that nothing in this section shall apply to any proceedings under Chapter XI and XII of the Code of Criminal Procedure, 1898 (Act V of 1898), Section 48E of the Bihar Tenancy Act (Act VIII of 1885) and the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Act XII of 1962).”
6. Section 7 of the Act envisages constitution of Village Advisory Committee. Section 8 of the Act requires preparation of upto date record-of-rights before consolidation. Section 8A enjoines partition of joint holdings. Section 9 of the Act relates to preparation of register of lands. Section 9A deals with preparation of statement of principles. Section 10 envisages publication of register of lands and statement of principles and objections thereon. Section 11 lays down the manner in which draft scheme is to be prepared. Section 12 requires publication of draft scheme. Section 12A relates to disposal of objections and is as follows:—
“12A Disposal of objections: (1) All objections received by the Assistant Consolidation Officer shall, as soon as may be, after the expiry of the period specified in Section 12 be submitted by him to the Consolidation Officer who shall dispose of the same, in the manner hereinafter laid down, after notice is given to the parties concerned and the Village Advisory Committee.
(2) Any person aggrieved by the order of Consolidation Officer under Sub-section (1) may, within thirty days of the date of the order, file an appeal before the Assistant Director of Consolidation whose decision shall, except as otherwise provided by or under this Act, be final.
(3) The Consolidation Officer shall, before deciding the objection and the Assistant Director of Consolidation may, before deciding any appeal, make local inspection of the plots in dispute after giving notice to the parties concerned and the Village Advisory Committee.”
7. Section 12B authorises revision of draft consolidation scheme in the circumstances mentioned therein. Section 13 of the Act deals with the confirmation of the draft consolidation scheme. Section 14 of the Act is consequential to the confirmation of the draft consolidation scheme, and deals with the consequence of the confirmation of the scheme., Section 15 is as follows:—
“15. Certificate of transfer (1) The Consolidation Officer shall grant to every raiyat to whom a holding has been allotted in pursuance of a scheme of consolidation a certificate in the prescribed form containing the prescribed particulars. Such certificate shall be conclusive proof of the title of such raiyat to such holding and he shall be liable for payment of such rent as may be specified in the certificate.
(2) A similar certificate of transfer shall be granted to every under-raiyat, whether having a right of occupancy or not in any land allotted to him in pursuance of the scheme and the certificate shall be conclusive proof of the title of such under-ralyat to such land and he shall be liable to payment of such rent and to such person as may be specified in the certificate.”
8. Section 16 states that the confirmed scheme is to be treated as finally published record of right. Section 26A empowers the State Government to issue notification in the official gazette stating that the consolidation operations have been closed in a particular area. Section 37 creates bar for jurisdiction of Civil Courts. It is as follows:—
“Bar of jurisdiction of Civil Courts:— No Civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act.”
9. Section 40 empowers the State Government to make rules for carrying out the purposes of the Act.
10. Vires of Acts.
11. The main attack on the vires of the Act and more particularly Sections 12A and 37 and 4(c) of the Act was on the ground that the Act and the aforesaid sections were discriminatory. It was contended that in the scheme of the Act Assistant Director of Consolidation and Consolidation Officer were entitled to finally determine questions of title. Their determination in that regard could not be challenged in civil suit. It was contended that the officers aforesaid had no judicial training and were ill-equipped to decide questions of title, which required consideration of intricate questions of facts and law. Whereas the door of the courts were open for the general public, it was shut for those who were covered by the Act. Thus whenever consolidation proceedings had commenced the raiyats and under-raiyats had no option but to have their title determined by untrained hands. This was discriminatory and had no rational basis. The purpose of the Act, it was conceded, was laudable. But in order to achieve that purpose the ouster of jurisdiction of the civil courts was neither necessary nor desirable.
12. Learned Advocate General appearing on behalf of the State contended that all those covered by the Act were treated equally. There was thus no scope for applicability of Article 14 of the Constitution. Alternatively, it was contended that in order to achieve the object of the Act, namely, consolidation of holdings it was necessary that power of deciding objections be vested in the authorities created under the Act. The mere fact that special forum has been created was not sufficient to show that there has been discrimination. In fact, there are numerous laws which envisage the creation of special forum for determining the rights of the parties. Thus it was contended that the classifications in this case was based on reasonable classifications and conformed to the tests laid down by the Supreme Court.
13. Learned Advocate General is, in my view, right in contending that the mere fact that law creates special forum will not make the law suffer from the vice of discrimination. Indeed there are various laws enacted from time to time which create special forums. They are invested with the jurisdiction to decide the questions affecting the rights of the parties. House Control Legislation in several states, Land Encroachment Act, Debt Redemption Laws and Labour Welfare Legislation are some of such legislations. Particular reference must be made to the Evacuee Property Act which twitted the authorities under the Act to decide questions of title. It is well settled now that in order to pass the tests of permissible classification it has to be seen whether (a) the classification is founded on an intelligible differentia which distinguishes those that are grouped together from others left out of the group, and (b) the differentia has a rational relation to the object sought to be achieved by the Statute in question. Are these tests fulfilled in the present Statute? So far as the first test is concerned, it is patently clear that those whose, lands have to be consolidated constitute a class by themselves. There is an intelligible differentia between them and those who are out of that class. Where a law is applicable to well defined class, it is not obnoxious and it is not open to the charge of denial of equal protections on the ground that it does not apply to other person. (1) The State of Bombay v. V.F.N Balsare (1951 S.C.R 682 at 708, 709).
14. The second test also, in my view, in fulfilled in this case. But it is not without some hesitation that I have come to this conclusion. In order to achieve the object of the legislation the legislature in its wisdom and experience thought that even the questions of title should be determined by the authorities under the Act. Then only could the purpose of the legislation be achieved, in examining this question it has to be borne in mind that the opinion of the legislature has to be given great weight. Just because a more perfect or satisfactory legislation could be enacted would not bring constitutional infirmity in the legislation. See (2) Kangshari Halder v. The State of West Bengal (A.I.R 1960 S.C.A 57, paragraph (9). It is from this point of view that I have approached the problem posed in this case.
15. The view of the legislature appears to be that the scheme of consolidation would be inordinately delayed, if not set at naught, if ordinary Civil Courts are to decide the questions of title relating to lands which are subject matter of, the consolidation proceeding. It cannot be said that this view is unreasonable. It is well known that civil litigation at least in this State, usually takes such a long time that the litigants feel completely desperate. In such a situation to invest authorities under the Act with the power to determine questions of title could not be said to be either unreasonable or having no nexus with the objects sought to be achieved, namely, speedy consolidation of agricultural lands.
16. I may usefully refer to what was said by Agarwala, J. in (3) Mukhtar Singh v. State of U.P (A.I.R 1957 Allahabad 297 at 302) while dealing with U.P Consolidation of Holdings Act 1953:
“Now the differentiation of tenure holders where consolidation proceedings are taking place from tenure holders who are not subjected to such proceedings is based upon an Intelligible differentia. Where an area is declared to be under consolidation proceedings it is necessary that the proceedings should terminate within a reasonable time. There may be hundreds of cases relating to title, boundaries and possession over the holdings or plots contained in those holdings. If the tenure-holders were left to the process of the ordinary law nobody can say when the litigation would terminate and when matters of dispute would be finally decided after having passed through the stage of original, appellate end revisional Courts. It is well known that the ordinary procedure takes a long time to come to an end. If this were to be permitted, consolidation proceedings might be held up for an Indefinite period. It is therefore necessary that, such cases be treated differently from cases where consolidation proceedings are not taking place.”
17. And finally what was said by Venkateram Aiyar, J. in (4) Lachhman Dass v. State of Punjab (A.I.R 1963 S.C 222 (233);
“It is then contended that Section 11 of the Act bars the jurisdiction of the Civil Courts with reference to the disputes triable under the Act, and that is unreasonable. It is too late in the day to contend that provisions in statutes creating a special jurisdiction and taking away the jurisdiction of Civil Courts in respect of matters falling within that jurisdiction are unreasonable or opposed to rules of natural justice. It has only to be remembered that provision excluding the jurisdiction of Civil Courts in such case do not affect the jurisdiction of either the High Court under Article 226 or of this Court under Article 32 or Article 136 to interfere where grounds therefore, are established.”
18. Although, I am of the view that the strict standard required for getting the law declared as discriminatory and thus invalid has not been made out in the case, yet a little more reflection could have brought out such changes in the law as would have perhaps satisfied the critics This is a matter to which I propose to make a reference at the end of the judgment, as the law in question is of far-reaching significance and consequence to the agriculturists in this State who form between 80 to 90 per cent of the population of this State.
19. Learned counsel for the petitioners placed reliance in support of his contention on the Full Bench decision of this court in (5) Nand Kumar Rai v. State of Bihar (A.I.R 1974 Patna 164) and contended that the impugned provisions were discriminatory in matters of procedure and violative of Article 14 of the Constitution. In my view, however, the case is distinguishable. In the aforesaid case the difference between Section 106 (as amended by amending Act 6 of 1970) and Section, 109 was highlighted. It was pointed out that whereas Section 106 provided for two appeals only one appeal was provided in Section 109(3) of the Bihar Tenancy Act. The next difference between the two type of suits was that while the decision of revenue officer in a suit under Section 106 had the force of a decree and was executable as a decree such was not the position in relation to decisions under Section 109 of the said Act. Thus the wide and striking difference, pointed out earlier, led the Bench to hold that Section 109 aforesaid was invalid. Such is not the position here. All those who are covered under the Act are governed by the same procedure in relation to the determination of questions of their right or interest. It is not that some people covered by the consolidation proceeding will have their rights determined under one procedure and others under another.
20. Reliance was also placed on the decision of the Supreme Court in (6) Magan Lal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay (A.I.R 1974 S.C 2009). But I do not see how the principles laid down in the aforesaid decision came to the assistance of the petitioners. As in Magan Lal Chhagganlal's case, so here also objections have to be decided after notice to the parties, with the right of appeal or revision. The authorities have power and privileges as vested in a Civil Court (as mentioned in Section 37B of the Act). They have power of enforcing the attendance of witnesses, examining them on oath and affirmation or otherwise compelling any person for production of any document and the like. This is clear from the provision of Section 37B of the Act which is as follows:—
“37B Authorities under this Act to have powers and privileges as are vested in a Civil Court in certain matter—(1) The Director of Consolidation, the Deputy Director of Consolidation, the Assistant Director of Consolidation, the Consolidation Officer and the Assistant Consolidation Officer shall have all such powers, rights and privileges while hearing any matter in dispute as are vested in a Civil Court in respect of the following matters, namely:—
(a) the enforcing of the attendance of witnesses and examining them on oath, affirmation or otherwise and the issuing a commission to examine witnesses,
(b) compelling any person for the production of any document;
(c) punishing the persons guilty of contempt.
(d) A summon signed by such officer may be substituted for and shall be equivalent to any formal process capable of being issued in any action by a Civil Court for enforcing the attendance of witnesses and compelling the production of any document.”
21. Of course the provision for appeal as pointed out in Chhaggan Lal's case was to the principal Judge of a City Civil Courts or a District Judge. Here there is no such provision of appeal. But the mere fact that appeal is not so provided does not mean that the procedure is so unconscionable as to attract the vice of discrimination.
22. The next important contention that has been raised by the learned counsel for the petitioners is that Section 4(c) of the Act is ultra vires, as it not only affects the rights in respect of lands subject matter of consolidation proceedings but also rights determined in a suit where composite decrees are passed. To illustrate, it was pointed out that if there is a decree for recovery of possession and mesne profit the result of the abatement of the suit would be that the decree for mesne profits would also disappear. Several other Illustrations were given during the course of argument to show that the consequence of the abatement would be to affect the right to property. The abatement of suit in respect of such matters had thus no nexus with the object of the Act. It was further contended that such a provision was not necessary to achieve the avowed object of the Act. The learned Advocate General contended, as a matter of construction of Section 4 of the Act, that there is no statement of the suits for all times to come but suits or proceedings abate only so long as the consolidation operation does not come to a close. It was further contended that Section 4(c) has to be read with qualification. In other words the limiting words “so far as the rights or interest in land concerned” has to be read after the words stated.
23. In my view, both the contentions of the learned Advocate General are fit to be accepted. The opening words of Section 4 state clearly that the consequence, as mentioned therein, shall ensue “from the date specified in the notification till the close of the consolidation operation.” The consolidation operation closes by issue of notification as envisaged in Section 26A of the Act. The language being clear and explicit effect has to be given to the words used. When the section says that the ensuing consequences are till the close of the consolidation operation, we cannot nullify the words aforesaid by, saying that the consequences are for all times to come. It is obvious, therefore, that on the close of consolidation operation in a village or area the abated suits would revive. But the revival of those suits would not create any problem as suits will have to be decided in conformity with the decisions arrived at in the consolidation proceedings in so far as the rights of interest in any land covered by the consolidation proceedings is concerned. If this interpretation is accepted it would be seen that the suggested harshness or injustice disappears. In the illustration already given, if a party succeeds in establishing its title, after the close of the consolidation proceeding, it would be open to it not only to have its title declared accordingly but also to have a decree for mesne profits.”
24. It was contended by the learned counsel for the petitioners that there may be composite suits where two reliefs, namely, one relating to title to land and some other independent relief may be prayed for. In those cases also the abatement of suit would lead to clear injustice. Such abatement would have neither any nexus with the object of the Act nor amount to a reasonable restriction on the right to property. It would thus be violative of the right to property as guaranteed under the Constitution. This argument is on the assumption that there is the abatement as a whole of a suit of this nature. In my view, such is not the position. Controversy in a suit may relate to right and title in land and certain reliefs dependent on the determination of the aforesaid title. Only in such a situation, in my opinion; the suit abates not only in relation to ancillary or dependent reliefs. But the position is different where independent relief or reliefs, unconnected with the declaration and determination of title to land are Involved in a suit. In such a situation the suit does not abate in relation to such control versies. It is perfectly legitimate as a rule of construction, to give a restricted meaning to the words used if the context so requires. See (7) Attorney General v. H.R.H Prince Earnest Augustus of Hanover-1957 AC 436, 461. More so where the effect of giving a wider meaning may render the provisions constitutionally invalid. It is trite law that where a provision can be read in two ways; one of which makes it constitutional and the other unconstitutional, it should be so read and Interpreted that it does not become invalid. In my view, therefore, the second contention of the learned Advocate General is also sound.
25. It would be appropriate here to clarify that there are certain class of cases which are not covered by Section 4(c) of the Act. An illustration is provided by the observations in the case (8) Gorakh Nath Dube v. Hari Narain Singh (A.I.R 1973 S.C 2451). There the claim of the plains tiff was that the sale of his half share by his uncle was Invalid, Inoperative and void. In the suit the plaintiff had prayed for cancellation of the sale-deed executed by his uncle to the extent of his half share. It was held that the suit was covered by the relevant provision of the U.P Consolidation of Holdings Act and the claim had to be adjudicated upon by the consolidation courts. It was, however, pointed out that there is a distinction between cases where a document is wholly or partially Invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. The latter class of cases were held to be outside the scope of the provision relating to abatement of suits.
26. Learned counsel for the petitioners contended that the provision relating to piecemeal applicability of the law conferred unguided power on the State Government to Initiate proceedings in villages of its choice. This power was drastic and arbitrary. It is not possible to accept this argument also. So far as the guidance is concerned it is available both from the preamble and general scheme of the Act. It is patently clear that a law of this nature cannot be applied throughout the State at the same time. There are various administrative and financial constraints. The more fact that consolidation operations are not undertaken simultaneously throughout the district or State does not bring any infirmity in the law. See (9) Ram Chandra Palal v. State of Orissa—(A.I.R 1956 S.C.R 28). This very aspect has been emphasised in the case of (10) Shyam Sunder v. Siya Ram (1973 A.I.J 53). It has been held by this Court in relation to other statutes, that piecemeal application of law is not Illegal or ultra vires. [See (11) Nasibun Nisa v. State of Bihar C.W.J.C 670 of 1978 decided on 27.6.1978]. In view of the interpretation that I have put on Section 4(c) of the Act, I am of the view that the challenge to the validity of the provisions of the Act on the grounds urged in the course of argument cannot be accepted.
27. Conflict between Sections 15 and 16 of the Act:
28. Learned counsel for the petitioners contended that there is conflict between Section 15 and 16 of the Act. Whereas Section 15 makes the certificate issued under the said sections as conclusive, the effect of the confirmed scheme being treated as finally published record of rights is that the same has only a presumptive value. In my view, there is no conflict. Section 15 only relates to proof of title and that is conclusive. But in respect of matters not covered by Section 15, the confirmed scheme shall have only a presumptive value. In any event; even if there be a conflict Section 15; being clear and ???, has to prevail.
29. The scope of the instant suit (T.S 103/1966)
30. It was contended that present suit is not covered by Section 4(c) of the Act. It was a suit under Section 72 of the Bihar Hindu Religious Trust Act. The plaintiff was claiming that the sale deed executed by defendant first party was not binding on him. Thus the avoidance of the sale deed was necessary. In my opinion, the contention cannot be accepted. Section 72 of the Bihar Hindu Religious Trust Act makes special provision for suits for recovery of immovable property. The filing of the suit under this provision does not affect the true effect of the reliefs claimed in the suit. A perusal of the plaint, gist whereof has been given, makes it abundantly clear that the suit is in respect of declaration of right and interest in lands which are subject matter of consolidation proceedings. The deed executed by the first party in favour of the second party, according to the claim in the suit, is not binding on the plaintiff. It is not a Court of competent jurisdiction. The present suit is a suit of the first category, and not the second category mentioned in Gorakh Nath Dubey's case (supra). The learned Additional Subordinate Judge was, therefore, right in holding that the suit is covered by Section 4(c) of the Act and has, thus, abated.
31. General observations:
32. Before I conclude, I must refer to the feeling of dissatisfaction and apprehension which was expressed in course of argument. This was because the determination even in respect of question of title is left in the hands of administrative authorities untrained in law. Of course, the determination of the authorities can be challenged by way of writ. But the challenge, as is well known, is restricted challenge. There cannot be challenge to erroneous determination on questions of fact. This could have been; obviously; obviated, if in relation to question of title, at least an appellate forum was provided before a court, say, the District Judge. The apprehension that there would be delay could very well be eliminated by laying down a time limit in the law for disposal of such appeals. I have, no doubt, in my mind that the High Court would have made appropriate arrangements for the early disposal of such matters. Indeed, even in the High Court, cases relating to acquisition of surplus lands under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act are taken up and decided with utmost speed. Rule in cases, which are admitted, is usually made returnable between five weeks to eight weeks and that too to enable the State to be adequately prepared at the time of hearing and file counter affidavits, if necessary. If this can be done in the High Court, I do not see any reason why adequate administrative arrangement could not be made in the District Courts for disposal of cases which require utmost priority.
33. It would not perhaps be Inappropriate to point out that if we had a Law Commission in the State many of the problems that arise either as a result of inartistic drafting or failure to appreciate the consequence and impact of legislations, would have been avoided. We have a Law Commission at the Centre. If one is constituted in the State many of the local problems that do arise may be avoided. In that context I have expressed my views in the article “What is wrong with the law?” Which has been printed in the souvenir published on the occasion of the Diamond Jubilee celebration of this High Court. Therein I have tried to explain why the constitution of State Law commission is necessary; and the extent of its utility to the State. I may only mention here that such a Commission, if constituted, has to have a statutory status. Some times back Law Commission was constituted under administrative order in this State. As for as I know ??? made many useful suggestions. But those have only adorned the archives of the Secretariat. Had there been a statutory constitution of the Commission this might not have been the result.
34. These are the matters which I hope would receive serious consideration of the State Government.
35. Conclusion:
36. So far as the merits of the case is concerned as already held, the writ application cannot succeed and it is accordingly dismissed, but in the circumstances without costs.
37. Uday Sinha, J.:— I agree.
38. Birendra Prasad Sinha, J.:— I have also come to the conclusion that this writ petition should be dismissed. A full and elaborate judgment has been written by the learned Acting Chief Justice and I only wish to supplement by stating briefly my views on some of the crucial points arising in this case.
39. The Consolidation Act received the assent of the President on 6th September, 1956. Independent India Inherited some legacies of the British misrule. Cornwalia's permanent settlement had created certain vested interests in land. The agriculture was in great chaos and immediate land reform measures were too necessary. Coming in the wake of Zamindary abolition, the Consolidation Act was aimed at providing consolidation of holdings and preventing fragmentation of land. Without this agriculture could not get a boost and come to the succour of hungry millions. Needless to emphasise that better and economic agricultural management depended largely upon bringing together fragmented land holdings of the farmer. This laudable object of the Act was not disputed and rightly so. The main thrust of the argument of Mr. Kailash Roy is against the procedural aspect of the legislation.
40. Procedural laws are of recent origin. Towards the close of the Seventeenth century vigorous new policy of imperial discipline paved the way to the adoption of common law practice of the Kings' court from Biblicism and local customary English law. It resulted into carrying appeals from provincial courts to King in Council. The growth of propertied class created a market for the service of lawyers specially in common law. The rise of the propertied class was of great Importance in the reception of the common law also in America since the class Influence was exerted to maintain stability and conservatism. Rapid growth of commercial enterprises necessitated the resort to more technical system of the English common law. Law can never remain static. It is nothing more than a superstructure—the reflection of a certain economic structure. It is unscientific and contrary to all reasons to ignore the bond of fundamental importance uniting the law and economy and to fasten on resemblances or differences which are purely formal. By putting into effect new social ideas, the liberal democracies have profoundly changed their legal systems in the 20th century. Krishna Iyer, J. In the case of Basti Sugar Mills Co. Ltd. v. State of U.P (A.I.R 1979 Supreme Court 262 at page 264) observes:
“We touch these chords because the roots of jurisprudence lie in the soil of society's urges, and its bloom in the nourishment from the humanity it serves. To petrify statutory construction by pedantic impediments and to forget the law of all laws, viz., the welfare of the people, is to bid farewell to the grammar of our constitutional order.”
41. The learned Judge further observes in Paragraph 26 at page 270:
“..Confronted by escalating disorder, the wise ruler cannot afford to wait for lethargic legal justice to deliver its verdict but armed with crisis powers and anxious to arrest a blow-up, adopts administrative nostrums which give quick relief but do not frustrate ultimate justice. Prophylactic processes are not the enemy of normative law. Socially-oriented prompt action tranquillises where drift, vacillation and Inaction may traumetise”
42. The lethargic legal procedures involving inordinate delays could hardly meet the challenges of the new social order. If the country was to attain new heights in the field of agriculture, quick acting procedures were only too necessary. Any Government with economic justice and welfare of its people at heart could not afford to ignore this hard reality. Only the vested interest wants to maintain the status quo. The problem, therefore, must be approached from this angle. Only because this law brought about a change in procedure—that too from a lethargic to a quick-acting one—it cannot be said that it strikes at the constitution.
43. The question is whether it discriminates between persons on whom this is to operate. The immediate answer must be in the negative. It has been found by the learned Acting Chief Justice that classification is founded on reasonable basis having regard to the object to be obtained and is not arbitrary. I fully agree with this view. Every departure from the normal procedure cannot be regarded as Involving hostile discrimination. The mere fact that the questions involving title have been left to be decided by the persons not fully trained in law cannot mean that it was intended to be exercised in an arbitrary manner without reference to the declared object of the Act. “Legislature are ultimate guardians of the liberties and welfare of the people and act as a great degree as the courts” [Kolmes J. in Musouri v. May (1880) 101 U.S 22]. Competent legislatures, therefore, are entitled to alter procedural law in such a way as it considers proper. Great weight must be attached to the fact that the elected representatives of the people who made the law did not think that the law was palpably discriminatory. Of course that is not conclusive. I would do better to quote the observations of Villis, J. quoted in paragraph no. 71 in the case of the State Of West Bengal v. Anwar Ali Sarkar, (A.I.R 1952 S.C 75):
“The guarantee 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 prohibits 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 subject to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed. The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. It does not take from the States the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis”.
44. In my opinion, the petitioners have not discharged the burden of showing that the classification in the present legislation does not rest upon a reasonable basis.
45. While parting I would like to make certain observations. More than 22 years have passed since the passing of this law. As stated above, this law was Intended to be a tranquilliser and by a quick acting process the legislature thought that the object will be achieved quickly. It is only unfortunate that the sharp edges of this law have been made blunt and the quick acting procedure set at naught by lethargic and slow moving powerful bureaucracy. At the time of hearing a chart showing progress of consolidation proceedings in several districts of the State was shown to us by the learned Advocate General, but that shows a dismal picture necessitating vigorous steps in the matter.
Application dismissed.