1966 AIR (SC) 1571
With
Civil Appeal No.s 177, 181, 183, 186, 190, 191 and 194 of 1965
The Judgment was delivered by SATYANARAYANA RAJU, J
Per Satyanarayana Raju, JThese appeals, on certificate granted by the High
Court of Mysore, raise the question of the constitutional validity of the
Mysore Village Offices Abolition Act, 1961 (Act 14 of 1961).
By virtue of the provisions of the States Reorganisation Act, 1956, a new
State known as the State of Mysore was formed comprising the territories of
the then existing State of Mysore, certain districts in the then existing
States of Bombay and Hyderabad, South Kanara district in the State of
Madras except certain parts thereof and the then existing State of Coorg.
The legislature of the new State of Mysore enacted the Mysore Village
Offices Abolition Act, 1961 (Act 14 of 1961), hereinafter referred to as
the Act. It received the assent of the President on July 8, 1961. Sub-
section (3) of S. 1 authorized the State Government to fix a date for the
commencement of the Act. By notification, dated January 9, 1963, the
Government of Mysore notified that the said Act shall come into force with
effect from February 1, 1963. Immediately after the Act was assented to by
the President, the Governor of Mysore, in exercise of the powers vested in
him under proviso to Art. 309 of the Constitution and other powers enabling
him in that behalf, framed rules called
the Mysore General Services (Revenue Subordinate Branch) Village
Accountants (Cadre and Recruitment) Rules, 1961,
in order to make recruitment to the posts of village accountants. The rules
regulated the pay and other conditions of service of the village
accountants.
By a notification issued on 6 January 1963, the Government of Mysore
directed the Deputy Commissioners to appoint persons recruited under the
rules and relieve the then holders of their offices and if the number of
candidates fell short, to continue the existing holders in their posts.
There was a further direction that other village officers, viz., patels,
thoties and talaries, whose posts were also abolished under the Act, should
be continued in their present posts pending consideration by the Government
of the question as to whether they should be continued.The appellants have
filed petitions under Art. 226 of the Constitution in the High Court of
Mysore for the issue of writs of prohibition and certiorari declaring the
impugned Act to be illegal, unconstitutional and void. Among the
petitioners who are the village officers of the new State of Mysore are
shanbhogs, Patels and village karnams. In the writ petitions filed by them,
they have impugned the validity of the Act. The grounds raised are common
and the reliefs claimed are also identical. In the main the appellants
attack the validity of the Act on the ground that it is a piece of
colourable legislation. Paragraph 9 of the affidavit filed in Writ Petition
No. 393 of 1962, which is typical of the other writ petitions, states the
ground in the following terms :
... though the object of the Act is to abolish the offices which are held
hereditarily, in fact, what is being sought to be done is to extinguish the
right of the present incumbents and thereafter to appoint persons to be
recruited by the State Government. This is evident from the rules called
'the Mysore General Services Rules (Revenue Subordinate Branch) Village
Accountants (Cadre and Recruitment Rules of 1961 ), dated November 29,
1961. Thus, the posts are not being abolished but by a colourable exercise
of power, the respondent is seeking to remove the present incumbents to
enable it to appoint persons of his choice ... for this reason also, the
impugned Act and the rules are illegal, ultra vires and unconstitutional as
being a colourable exercise of power done with the mala fide intention of
depriving persons like me of our fundamental rights under the Constitution
.
We may now examine the provisions of the Act. The preamble reads :
"Whereas it is expedient in the public interest to abolish the village
offices which were held hereditarily before the commencement of the
Constitution and the emoluments appertaining thereto in the State of Mysore
and to provide for matters consequential and incidental thereto".Section
2(1)(e) defines" emoluments"
as meaning
(i) lands;
(ii) assignments of revenue payable in respect of lands;
(iii) fees in money of agricultural produce; and
(iv) money, salaries and all other kinds of remuneration granted or
continued in respect of, or annexed to, any village office, by the State.
Section 2(1)(g) defines "holder of a village office" or "holder" to be a
person having an interest in a village office under an existing law
relating to such office. Sub-clause (n) of S. 2(1) defines "village office"
as follows :
'village office' means every village office, to which emoluments have been
attached and which was held hereditarily before the commencement of the
Constitution under an existing law relating to a village office for the
performance of duties connected with the administration or collection of
the revenue or with the maintenance of order or with the settlement of
boundaries or other matter of civil administration of a village, whether
the services originally appertaining to the office continue or have ceased
to be performed or demanded and by whatsoever designation the office may be
locally known
.
Section 4 provides for the abolition of all village offices together with
the incidents thereof. Sub-section (1) of S. 4 provides that all village
offices shall be abolished; Sub-sec. (2), that all incidents appertaining
to the said village offices shall be extinguished; and Sub-sec. (3), that
all lands granted or continued in respect of or annexed to a village office
by the state shall be resumed and shall be subject to the payment of land
revenue as if it were an unalienated land or ryotwari land. Sections 5 and
6 provide for the regrant of those lands to the holders of the village
offices subject to the payment of occupancy price.Section 7 regulates the
eviction of unauthorized holders and regrant to them, in certain
circumstances, of land resumed under S. 4. Section 7 makes applicable the
existing tenancy laws to the lands regranted under Ss. 5. to 7. Section 9
provides for relief to the holders of village offices abolished under the
Act of payment of certain sums in such manner and in such instalments as
may be prescribed. Section 11 authorized the State Government to make rules
for the purpose of carrying out the provisions of the Act. Section 12
provides for the repeal of the enactments specified in Sch. I which are :
the Mysore Village Offices Act, 1908; the Madras Hereditary Village Offices
Act, 1895; the Bombay Hereditary Offices Act, 1874; the Bombay Hereditary
Offices (Amendments) Act, 1886; the Madras Proprietary Estates Village
Service Act, 1894; and the Madras Karnams Regulation, 1802.
As already stated, after the Act received the assent of the President on
July 8, 1961, the governor of Mysore, in exercise of the powers conferred
by the proviso to Art. 309 of the constitution and the powers vested in him
under the various Acts referred to in the notification, made rules entitled
the Mysore General Services (Revenue Subordinate Branch) Village
Accountants (Cadre and Recruitment) Rules, 1961. The rules provide for the
recruitment of village accountants and their conditions of service. They
provide for the creation of a cadre of village accountants which shall be
district wise. The village accountant is to be the ex officio panchayat
secretary. Provision is also made in the rules for the minimum
qualifications for recruitment, the method of recruitment of village
accountants and their training.
Now Sri Rama Jois and Sri R. B. Datar, learned counsel for the appellants,
have not questioned the legislative competence of the Mysore legislature to
enact the impugned Act. That being so, the petitioners can succeed only if
they can establish that the provisions of the Act constitute a piece of
colourable legislation. In K. C. Gajapati Narayan Deo v. State of Orissa
1953 AIR(SC) 375 ], it was contended that the Orissa Estates Abolition Act,
1952, was a piece of colourable legislation and as such void. Dealing with
this argument, Mukherjee, J. (as he then was), stated, at p. 379 as follows
.
It may be made clear at the outset that the doctrine of colourable
legislation does not involve any question of bona fides or mala fides on
the part of the legislature. The whole doctrine resolves itself into the
question of competency of a particular legislature to enact a particular
law. If the legislature is competent to pass a particular law, the motives
which impelled it to act are really irrelevant. On the other hand, if the
legislature lacks competency, the question of motive does not arise at all.
Whether a statute is constitutional or not is thus always a question of
power. A distinction, however, exists between a legislature which is
legally omnipotent like the British Parliament and the laws promulgated by
which could not be challenged on the ground of incompetency, and a
legislature which enjoys only a limited or a qualified jurisdiction. If the
Constitution of a State distributes the legislative powers amongst
different bodies, which have to act within their respective spheres marked
out by specific legislative entries, or if there are limitations on the
legislative authority in the shape of fundamental rights, questions do
arise as to whether the legislature in a particular case has or has not, in
respect to the subject-matter of the statute or in the method of enacting
it, transgressed the limits of its constitutional powers. Such
transgression may be patent, manifest or direct, but it may also be
disguised, covert and indirect and it is to this letter class of cases that
the expression 'colourable legislation' has been applied in certain
judicial pronouncement. The idea conveyed by the expression is that
although apparently a legislature in passing a statute purported to act
within the limits of its powers, yet in substance and in reality it
transgressed these powers, the transgression being veiled by what appears,
on proper examination, to be a mere pretence or disguise. As was said by
Duff, J., in Attorney-General for Ontario v. Reciprocal Insurers [1924]
A.C. 328 at 337] :'Where the law-making authority is of a limited or
qualified character, it may be necessary to examine with some strictness
the substance of the legislation for the purpose of determining what is
that the legislature is really doing.'
In other words, it is the substance of the Act that is material and not
merely the form or outward appearance, and if the subject-matter is
substance is something which is beyond the powers of that legislature to
legislate upon, the form in which the law is clothed would not save it from
condemnation. The legislature cannot violate the constitutional
prohibitions by employing an indirect method.
In G. Nageswara Rao v. Andhra Pradesh State Road Transport Corporation 1959
AIR(SC) 308 ], this Court at p. 316, after quoting the observations made by
Mukherjee, J., cited above, said as follows :
The legal position may be briefly stated thus : The legislature can only
make laws within its legislative competence. Its legislative field may be
circumscribed by specific legislative entries or limited by fundamental
rights created by the Constitution. The legislature cannot overstep the
field of its competency, directly or indirectly. The Court will scrutinize
the law to ascertain whether the legislature by device purports to make a
law which, though in form appears to be within its sphere, in effect and
substance, reaches beyond it. If, in fact, it has power to make the law,
its motives in making the law are irrelevant.
On an examination of the material provisions of the impugned Act it is
clear that its object and intendment is to abolish all the hereditary
village offices, viz., patels, shanbhogs, etc., which were held
hereditarily before the commencement of the Constitution and the emoluments
appurtenant thereto.In Dasaratha Rama Rao v. State of Andhra Pradesh 1961
AIR(SC) 564 ], this Court held that S.6(1) of the Madras Hereditary Village
Offices Act, 1895 3 of 1895, in so far as it makes discrimination on
grounds of descent only, is violative of the fundamental right under Art.
16(2) of the Constitution and is void. There, this Court pointed out that
the office of village munsif under the said Act was an office under the
State within the meaning of Cls. (1) and (2) of Art. 16. At p. 572 it was
observed as follows :
We are of the view that there is nothing in the nature of the office which
takes it out of the ambit of Cls. (1) and (2) of Art. 16 of the
Constitution. An office has its emoluments, and it would be wrong to hold
that though the office is an office under the State, it is not within the
ambit of Art. 16 because at a time prior to the Constitution, the law
recognized a custom by which there was a preferential right to the office
in the members of a particular family. The real question is : Is that
custom which is recognized and regulated by the Act consistent with the
fundamental right guaranteed by Art. 16 ? We do not agree with the learned
counsel for respondent 4 that the family had any pre-existing right to
property in the shape of the emoluments of the office independent or
irrespective of the office. If there was no such pre-existing right to
property apart from the office, then the answer must clearly be that Art.
16 applies and S.6(1) of the Act in so far as it makes a discrimination on
the ground of descent only, is violative of the fundamental right of the
petitioner
.
In the territories forming part of the present State of Mysore, in the
districts of South Kanara and Coorg the village offices were filled by
persons belonging to a particular family. They had a preferential right to
be appointed to those posts if they possessed the prescribed
qualifications. In Rao case 1961 AIR(SC) 564 ] (vide supra) this Court held
that a law which recognized the custom by which a preferential right to an
office vested in the members of a particular family was violative of the
fundamental right guaranteed by Art. 16. The Act, in abolishing all the
hereditary village offices, merely gave effect to the principle established
by the said decision.The learned counsel for the appellants has fairly
conceded that the Act is within the legislative competence of the State
legislature. But he has questioned the validity of the Act on the ground
that it is a piece of colourable legislation. It is stated that though the
declared object of the Act is to abolish the offices which were held
hereditarily, in fact what is sought to be done is to extinguish the right
of the present incumbents and thereafter appoint persons to be recruited by
the State Government. Relying upon the rules made under the Act as
purporting his contention, the learned counsel for the appellants has
argued that the posts are not being abolished but by colourable exercise of
power the State Government is seeking to remove the present incumbents to
enable it to appoint persons of its choice. We are unable to accede to this
contention.
As pointed out by this Court in Gajapati Narayan Deo case 1953 AIR(SC) 375
], (vide supra) the whole doctrine of colourable legislation resolves
itself into the question of competency of a particular legislature to enact
a particular law. If the legislature is competent to pass the particular
law, the motives which impel it to pass the law are really irrelevant. It
is open to the Court to scrutinize the law to ascertain whether the
legislature, by device, purports to make a law which, though in form
appears to be within its sphere, in effect and substance, reaches beyond
it.
Beyond attempting the argument that the impugned Act is a piece of
colourable legislation, the learned counsel for the appellant has not
succeeded in substantiating his contention that the Act and the rules made
thereunder are merely a device for removing the present incumbents from
their office. The provisions of the Act and the rules made thereunder
plainly provide for the abolition of hereditary village offices and make
those offices stipendiary posts. The Act makes no secret of its intention
to abolish the hereditary posts.It is argued that even after abolition, the
same posts are sought to be continued. It is no doubt true that the names
of the offices have not been changed but there is a basic structural
difference between the posts that have been abolished and the posts that
have been created. The posts created by the new Act are stipendiary posts.
They carry salaries according to the grades created by the rules. The
incumbents are transferable and their service is pensionable. Different
qualifications are prescribed for the new posts. From a consideration of
the incidents attaching to the new posts it is clear that the old posts
have been abolished and new posts have been created and that the whole
complexion of the posts has been changed.
The result is that in our opinion the impugned Act cannot be held to be a
piece of colourable legislation and as such invalid.
Now we may deal with Civil Appeal No. 190 of 1965. In the affidavit filed
in support of Writ Petition No. 177 of 1963 out of which the above civil
appeal arises it has been stated that the Madras Hereditary Village Offices
Act (Act 3 of 1895) does not in terms apply to the village offices of the
district of South Kanara, that its principles have been observed in common
practice by the revenue authorities, and that their appointments are
governed by the Standing Orders of the Madras Board of Revenue which have
not been repealed by the Act. The petitioners' case is that a consideration
of the Madras Revenue Board's Standing Orders would show that the post of
Karnam is a civil post coming within the ambit of Art. 311 and that,
therefore, the abolition of their posts in effect amounts to "removal"
within the meaning of that article.
It is no doubt true that the Madras Village Offices Act, 1895, does not
apply to South Kanara district, but the hereditary principle had been
applied to village offices in the South Kanara district in accordance with
the instructions contained in the Madras Revenue Board's Standing Orders
and the impugned Act has abolished the principle of heredity in making
appointments to the village offices. Learned counsel for the appellant has
argued, relying on the decision of the Privy Council in Musti Venkata
Jagannadha v. Musti Veerabhadrayya 1922 AIR(PC) 96 ] that the karnam under
the Madras Karnams Regulation is a personal appointee and that there is no
absolute right of hereditary succession to that office and that the
principle of heredity does not apply to that office. The correct position
with regard to karnams (shanbhogs) in South Kanara districts will be
evident from the following extracts :
"Proceedings of the Board of Revenue, Madras, dated 21 November 1868, read
as follows :"
The village offices in Canara are not hereditary by law but good policy
requires that the hereditary principle should be observed as far as the
efficiency of administration permits in order that the value of the office
may be enhanced as much as possible and that the services of men of good
social standing whom the emoluments of the office alone would not attract
may be procured
".
Standing order, dated 7 July 1883, of the Collector, South Kanara, reads :"
Subordinate revenue offices in the district are hereby directed to bear in
mind that in submitting nominations to the posts of village officials, the
principle to be invariably followed is that the heir of the last permanent
incumbent is the man entitled to the vacancy, unless he is clearly unfit to
hold it. In the case of a minor heir, or one disqualified for active
service by near relationship to a dismissed incumbent, someone should be
recommended to act during the minority of the heir of the lifetime or the
dismissed incumbent as the case may be
".
Standing order, dated 24 August 1882, of the Collector, South Kanara, reads
:"
(i) Succession to village offices will in future be regulated on the
principle set forth in the Collector's Standing Order of 1883, namely, that
the heir of the last permanent incumbent is the man entitled to the post,
unless he is already unfit to hold it.
(ii) The Collector takes the opportunity of directing that a register be
opened in each taluk in the annexed form showing the name and other
description of the permanent incumbent of each post at present. One whole
page should be left for each office to show the changes in the office-
holders from time to time. If the register is carefully maintained, it will
greatly facilitate the speedy and satisfactory disposal of claims to vacant
village offices, which, owing to want of such a register at present are
made the subject of lengthy enquiries." It is not, therefore, correct to
say that the principle of heredity does not apply to the appointments of
shanbhogs in the district of South Kanara. The fact that the Board's
Standing Orders have not been repealed in their application to the district
of South Kanara, which is now part of the State of Mysore, will not make
any difference since the Board's Standing Orders recognize the principle of
heredity underlying the Madras Hereditary Village Offices Act. The schedule
to the impugned Act specifically repealed the Madras Hereditary Village
Offices Act and the Madras Karnams Regulation.
The points raised by the appellants must, therefore, fail. The result is
that the appeals are dismissed with costs, one hearing fee.