Jayantilal Laxmishanker v. State Of Saurashtra

Chhatpar, J.:— (On behalf of himself and Shah, C.J:) This is an application under Article 226 of the Constitution of India for certain writs. The applicant claims to be the Ijardar of certain lands in the village known as Juvanpur, formerly under Kalavad Taluka in Nawanagar State, now in Halar District of the State of Saurashtra under a Lekh dated 4th of June 1936, executed in favour of his father Laxmishanker ochavji by His ??? the Jam Saheb of the former State of Nawanagar. The said Ijara was for a period of thirty years commencing from Samvat year 1992. Apart from the land covered by the Ijara, the applicant possessed by purchase other pieces of land in the same village of Juvanpur. It appears from the Lekh that the lands covered by it were in an undeveloped condition at the time; the applicant claims that through his incessant efforts and considerable investment he made the lands fertile and the Village prosperous.

2. In about the beginning of the year 1948, the Rulers of the major States of Kathiawar entered into a Covenant for the formation of the United State of Kathiawar, now known as the State of Saurashtra under the present Constitution of India integrating their territories and administrations, the minor States known as Talukas, Estates, Thanas, etc., similarly their territories and administrations into the United State of Kathiawar. Under the terms of the Covenant the new State took over the assets and liabilities of the Covenanting States. Clause 1(c) of Article VI of the Covenant runs as under:

“All the assets and liabilities of the Covenanting State shall be the assets and liabilities of the United State of Kathiawar.”

3. One of the States which joined in the formation of the United State of Kathiawar was the Nawanagar State and it is, claimed that the rights and liabilities under the aforesaid Lekh dated 4th June 1936 became the rights and liabilities of the United State of Kathiwar and now of the State of Saurashtra.

4. It is alleged that the Government of Saurashtra and their Officers interfered with the applicant's rights over the village of Juvanpur inasmuch as the applicant was restrained from exercising his rights as Ijardar under the Lekh as also in respect of his other lands to collect his crop share from his sub-lessees, cultivators as per terms and conditions agreed between him and the sub-lessees and cultivators. It appears that in exercise of powers under Ordinance No. XXVI of 1948, which was promulgated for the settlement of disputes about rent between jamindars and tenants, the Revenue authorities interfered and took possession of the crops grown on the lands of the applicant and for this purpose a manager was appointed.

5. The applicant alleges that such orders of the appointment of a Manager and taking over the crops were issued orally and all objections raised by the applicant were brushed aside. So that virtually his rights over his lands were, as he states, de facto confiscated.

6. Thereafter the Saurashtra Government Ordinance No. XLI of 1949 popularly now known as the Gharkhed Ordinance intended to provide for settlement of disputes between landholders and their tenants and other matters. Section 2 of this Ordinance defines a landholder in the following terms:

“‘Landholder’ means a Zam ndar, Jagirdar, Giras-dar, Talukdar, Bhayat, Bhagdar, Muigirasia, Bar-khalidar, Inamdar, Jiwaidar or any person who is a holder of land or who is interested in land and whom the Government has declared on account of the extent and value of the land or his interests therein to be a landholder for the purposes of this Ordinance.”

7. Section 35 of the Ordinance which is the most important piece of legislation to be considered in the present case reads as under:

“Notwithstanding any law for the time being in force, usage or custom or the terms of contract or grant, when the Government is satisfied that on account of the neglect of a landholder or disputes between him or his tenants, the cultivation of his estate has seriously suffered, or when. It appears to the Government that it is necessary for the purpose of improving the economic and social condition of peasants or ensuring the full and efficient use of the land for agriculture to assume management of any landholder's estate, a notification announcing such intention shall be published in the official gazette and the Collector shall cause notice of the substance of such notification to be given at convenient place in the locality where the estate is situated. Such notification shall be conclusive.”

8. The next section provides for the publication of the Notification under Section 35 and says that the estate in respect of which the Notification has been published shall, so long as the management continues, vest in the Government. It also provides for the appointment of a Manager to be in charge of the estate taken under management. The next Section 37 lays down the consequences of the publication of the Notification and ‘inter alia’ disable the holder of the estate taken under management from entering into any contract involving the estate in pecuniary liability, from mortgaging, charging, leasing or alienating the property under the management or any part thereof and collecting rents and profits arising therefrom. The Section declares that so long as the management continues, no person other than the Manager shall be competent to mortgage, charge, lease or alienate such estate or any part thereof. The succeeding Sections 38 to 51 lay down the powers of the Manager, and provide for costs of management, inviting of claims against the estate and determination of debts and liabilities with power to rank debts and fix interest and formation of schemes for liquidation, etc. Section 52 states that the Government, when it is of opinion that it is not necessary to continue the management of the estate, may by ??? published in the Official Gazette, direct that the said management shall be terminated. On the termination of the said ???, the estate is to be delivered into the possession of the holder, or if he is dead, to any person entitled to the said estate together with any balances which may be due to the credit of the said holder. All acts done or purporting to be done by the Manager during the continuance of the management of the estate are binding on the holder or any person to whom the possession of the estate is delivered. In short this Chapter of the Gharkhed Ordinance permits Government to take over the management of the estate of any landholder who either falls within the description specifically mentioned in the Ordinance or who is declared by the Government to be a landholder by an appropriate order under the powers reserved in the Act. The effect of the order of management is to deprive the landholder for the time being practically of all rights as an owner of the property lire Act makes no provision of giving any opportunity to the landholder of showing cause why his estate should not be taken under management, nor does an appeal from the decision of the Government lie to any Judicial or quasi-judicial tribunal. Further the ordinance specifically bars the Jurisdiction of Civil Courts.

9. In pursuance of powers vested in the preceding discussed provisions of the Gharkhed Ordinance the Government by two notifications, dated 7th of August 1950, declared the present applicant to be a landholder for the purposes of the Ordinance and issued an order of its intention to assume the management of the said village of Juvanpur and ordered that the management then subsisting over the village, which was presumably the management relating to the taking over of the crops under Ordinance No. XXVI of 1948, was to be continued with effect from the date of the notifications. These two notifications are reproduced below:

1. “Rajkot, 4th August 1950. No. RD/IV/6 WHEREAS the village Juvanpur in Kalawad Taluka is with Shri Jayantilal Laxmishanker Joshi as Ijardar under Lekh, dated 4th June 1936, passed by the former Nawanagar State and whereas it is expedient to regulate his status in his relations with the tenants of the village:

NOW, THEREFORE, in exercise of the powers conferred by the Clause (1) of Section 2 of the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance 1949 (XLI of 1949), the Government of Saurashtra is leased to declare the said Ijardar Shri Jayantilal Laxmishanker Joshi, on account of the extent and value of the lands comprised in the said village, to be a ‘landholder’ for the purposes of the said Ordinance.”

2. “No. RD/IV/6, WHEREAS, under Government Notification in the Revenue Department No. RD/IV/6, dated 4th August 1950, Shri jayan-tilal Laxmishanker Joshi, Ijardar of village Juvanpur under the Kalavad Taluka, has been declared to be a landholder (hereinafter referred to as the ‘said landholder’);

AND WHEREAS, it appears to the Government that it is necessary for ensuring the full and efficient use of the land in the village Juvanpur to assumemanagement of the village Juvanpur; NOW THEREFORE, in pursuance of Section 35 of the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, 1949 (XLI of 1949), the Government of Saurashtra is pleased to announce its intention to assume management of the said village and to order that the management at present subsisting over the village shall with effect from the date of this notification continue under Section 35 ibid.’

By order, etc.,

(Sd) T.L SHAH,

Secy. to Govt., of Saurashtra,

Revenue Department.”

10. On 26th of January 1950, the Union of India was formed into which was merged the State of Saurashtra. Part III of the Constitution of. India lays down fundamental rights. Article 13. Clause (1) of this Part states:

“All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the exent of such inconsistency, be void.”

11. Article 19, Clause (1)(f) confers on the citizens of India the fundamental right to acquire, hold and dispose of property and Clause (g) the right to-practice any profession or to carry on any occupation, trade or business. The fundamental rights can, however, be curtailed by any law imposing reasonable restrictions in the interest of the general public as laid down by Clauses 5 and 6 of Article 19.

12. The applicant claims that the provisions of the Gharkhed Ordinance, under which his estate has been taken under management by the two notifications reproduced above, are void ‘inter alia’ on the following grounds:

(a) That the Ordinance in question is bad for want of the assent of the President of India;

(b) That the relevant portions of the Ordinance and consequently the Notifications issued thereunder are in violation of the fundamental rights of the citizens guaranteed by the Constitution of India and they do not come within the permissible legislation providing reasonable restrictions in the interest of the general public;

(c) That the same are contrary to the terms of the Covenant entered into by the Rulers of the former States of Kathiawar for the formation of the State of Saurashtra which terms, the applicant alleges, are guaranteed by the Government under the Covenant and also-recognised under the Constitution of India;

(d) That the legislation in question is discriminatory and contravenes Article 14 of the-Constitution.

13. The applicant further contends that the definition, of the word “landholder” gives power to the executive authorities to declare a person owning land a landholder and this power is in the nature of legislative (function (?)) delegation of which to the executive is illegal. He also contends that the action of the Government in taking over management amounts to acquisition under Article 31(2) of the Constitution, as the applicant is deprived practically of all the rights of ownership over his estate such legislation without making any provision of compensation is void. The above in substance are the grounds of the application; the applicant prays for a declaration that the relevant portions of the Gharkhed Ordinance and the Notifications issued thereunder are void and for the consequent writs to the opponents restraining them from interfering with his fundamental rights over his property, etc.

14. We have heard the learned Advocate for the applicant as also the learned Advocate-General at length on all the aspects of the case and considered the elaborate arguments advanced before us. We are of the opinion that the particular portion of the Gharkhed Ordinance under which management has been assumed, is in violation of the fundamental rights guaranteed by the Constitution and does not come within the permissible legislation restricting the exercise of the fundamental rights. We do not think it necessary to consider other grounds of objections which are urged before us.

15. The Government have purported to act under that portion of Section 35 of the Gharkhed Ordinance which may be stated as under:

“Notwithstanding any law for the time being in force, usage or custom or the terms of contract or grant……….. when it appears to the Government that it is necessary for…………… ensuring the full and efficient use of the land for agriculture to assume management of any landholder's estate, a notification announcing such intention shall be published, etc.”

16. We will confine our decision as to the validity of this portion of Section 35 reproduced above under which the notification of the assumption of managements has been issued.

17. Now there is no doubt that the above provision of law is a violation of the fundamental right to hold property and to practice the occupation or business of a landholder inasmuch as under it a holder of a land can be deprived of ts management and incidentally of his occupation and business as an agriculturist. We have, however, to consider whether this law comes within Clauses 5 and 6 of Article 19 of the Constitution of India as prescribing reasonable restrictions in the interest of the general public. This question may be considered from two aspects firstly from the intrinsic or the substantive nature of the law and secondly whether the law imposing the restriction prescribes a procedure according to the natural principles of justice. The latter aspect has been laid down as a relevant consideration, more than once by the High Courts of India following the decision of the Supreme Court in the case of ‘Dr. N.B Khare (Dr.) v. State Of Delhi’, AIR (37) 1950 S.C 211, wherein Kania, C.J observed:

“Clause (5) of Article 19 must be given its full meaning. The question which the Court has to consider is whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not…………The law providing reasonable restrictions on the exercise of the right conferred by Article 19 may contain substantive provision as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law.”

18. As regards the first aspect, whether this piece of legislation could or could not be considered as reasonable restriction, I may refer to the case of ‘Brajnandan Sharma v. The State of Bihar’, AIR (37) 1950 Pat 322, where a Full Bench of the Patna High Court held:

“The Courts do not apply any subjective test. There can be an objective test of reasonableness, and that is what the Courts apply. They do not ask themselves, whether they as individuals, feel satisfied that the restrictions are reasonable. But, would that fictitious individual, “the reasonable man”, that is to say, the normal average man, regard them as reasonable? That is a well-recognised legal means of examining the question of reasonableness and it is essentially an objective test.”

19. Bearing these two principles in mind as regards the interpretation of the provision of law under consideration both from its suoslantive and procedural aspects, let me scrutinize what it purports to lay down. It says that when it appeal's to the Government that it is necessary for ensuring the full and efficient use of the and for agriculture to assume management of any landholder's estate, a notification announcing such intention shall be published and such notification shall be conclusive and shall have the effects which are summarised above. The Ordinance does not define what is ‘full and efficient use’ of the land for agriculture. No standard has been laid down in any part of the ordinance nor does the Ordinance prescribe the pre-existing circumstances of necessity compelling the exercise of the power of taking over management. A landholder may according to the ordinary notion be making full and efficient use of his land, nevertheless if it appears to the executive officer of the Government invested with powers in this behalf that it is necessary for ensuring full and efficient use of the land for agriculture, the landholder may be deprived of the management of the land and may be reduced to the position of a mere spectator as regards his property. The entire management devolves upon the manager and the landholder is disabled from entering into any contract in relation to his property or recovering rents and profits thereof. Further the law does not prescribe as a preliminary to assumption of management any inquiry whether the landholder has in fact failed to make the full and efficient use of his land or whether agriculture has suffered to any extent by any neglect on his part. The landholder may be maxing a reasonable, fair and efficient use of his land according to his means and circumstances in which he is placed. Yet he can be deprived of the enjoyment of his land for years, if the executive thinks it necessary to ensure the full and efficient use of the land for agriculture. The degree of full and efficient use may vary according to the circumstances of each case and even the fullest and most efficient use of the land according to the ordinary notions may still, be capable of fuller and more efficient use from a higher standard and it is left entirely to the executive officer of the Government to decide the necessity of ensuring the full and efficient use of land for agriculture.

20. Now I have to judge whether this piece of legislation should be considered as reasonable and in the interests of the public. In this connection, I may refer to the following remarks of Banerjee, J., in the case of ‘Subodh Gopal v. Behari Lal’, AIR (38) 1951 Cal 85 at p. 87:

“The right acquired by the subject of a Government under existing laws is sacred. The supreme duty of the Government is to protect it. Any needless interference with the right is a positive evil and injury……………………..

“The Legislature must have power to make such changes in the law as social or political condition requires. Any denial of such power would reduce us to a state of stagnation and immobility. Yet unless there is a compelling necessity, the Legislature cannot make any law mischievously affecting the rights acquired by the subjects. If the Legislature at its sweet will and pleasure could interfere with such right, people would have no incentive to acquire property or work for it. For, if a man cannot keep what he has rightly acquired, what should he work for, what should he strive for? Any needless act on the part of the Legislature produces a general sense of insecurity and consequent inactivity in individuals who compose the nation, leading ultimately to its degradation. The Government therefore must be very cautious in passing a law which takes away vested rights. If there is a compelling necessity, the Legislature can pass such law, but then it must be for doing the greatest good to the greatest number.”

21. It is in the interest of the general public that the citizen should have reasonable security to hold his property, so that he may develop it and make it profitable for himself and the society in general. Any legislation which denies him such security would neither be reasonable nor in the interests of the general public. The Supreme Court in the case of ‘Charanjitlal v. The Union of India’, 53 Bom L.R 499, cited before us considered the validity of an enactment to take over the administration of a Spinning and Weaving Mill belonging to a limited company qua the rights of a shareholder of the Company. Mukherjea, J., in delivering the judgment at page 518 of the Report observed:

“I do not think that there has been any restriction on the rights of a shareholder to hold, acquire or dispose of its share by reason of the impugned enactment and consequently Article 19(1)(f) of the Constitution is of no assistance to the petitioner. In this view, the other point does not arise for consideration, but I may state here that even if it is conceded for argument's sake that the disabilities imposed by the impugned legislation amount to restrictions on proprietary rights, they may very well be supported as reasonable restraints imposed in the interests of general public, viz., to secure the supply of a commodity essential to the community and to prevent a serious unemployment amongst a section of the people. They are, therefore, protected completely by Cl. (5) of Article 19.”

22. In the case of ‘Chintamanrao v. The State of Madhya Pradesh’, 1950 SCR 759, the Supreme Court had occasion to consider the validity of the Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes) Act, 1948, which authorised the Deputy Commissioner by notification to fix a period to be an agricultural season with respect to such villages as may be specified by him and by an order prohibit the manufacture of bidis during the agricultural season within the limits of such villages. The Act provided that no person residing in a village specified in such order should during the agricultural season engage himself in the manufacture of bidis, and no manufacturer should during the said season employ any person for the manufacture of bidis. Mahajan, J., in delivering the judgment observed:

“The phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the Interests of the public. The word ‘reasonable’ implies intelligent care and deliberation, that is, the choice of course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the sopial control permitted by Cl. (6) of Article 19, it must be held to be wanting in that quality.”

23. It was argued on behalf of the Government of Madhya Pradesh in that case that the proper judge of the reasonableness of the restrictions imposed by the statute, was the Legislature and that Legislature atone knew the conditions prevailing in the State; it alone coma say what kind of legislation could effectively achieve the end in view and would help in the grow more food campaign and would help for bringing in fallow land under the slough and that the Supreme Court could not judge by his own yardstick of reason whether the restrictions imposed in the circumstances of the case were reasonable or not. Repelling this argument, Mahajan, J., observed:

“This argument runs counter to the clear provisions of the Constitution. The determination by the legislature of what constitutes a reasonable restriction is not final or conclusive; it is subject to the supervision by this Court. In the matter of fundamental rights, the Supreme Court watches and guards the rights guaranteed by the constitution and in exercising its functions it has the power to set aside an Act of the Legislature if it is in violation of the freedoms guaranteed by the Constitution. We are therefore of opinion that the impugned statute does not stand the test of reasonableness and is therefore void.”

24. In the present legislation under consideration, no circumstances have been laid down from which a compelling necessity of depriving a person of his property can be spelled out. The law under which the executive can encroach upon the fundamental rights guaranteed by the Constitution so easily and for a purpose so vague and indefinite without laying down the circumstances of compelling necessity cannot be considered either as reasonable or in the interests of the general public. I may also refer to the case of ‘Brajnandan Sharma v. The State of Bihar’, AIR (37) 1950 Pat 322 (FB), wherein Meredith, C.J, observed as under:

“Turning now to the question of fact whether the impugned provision imposes only reasonable restrictions, the answer must, I think, be in the negative, for the power of restriction contained in the provision is based, not on any reasonable grounds, but upon the satisfaction of some individual who, so far as the wording of the Act is concerned, is completely amorphous; and the provision is in such terms that it is not open to the Court to examine the reasonableness or otherwise of orders passed. Upon the terms of the Act, all that the Court can inquire into is the existence of the satisfaction. Quite clearly, such a provision might conceivably be used merely to exclude political opponents, or as is suggested in the present case, (I do not mean to say I accept the suggestion. I am not considering it) to favour one of two rival Trade Unions and suppress the other. A law which enables such things to be done is not, in my judgment, a reasonable law. There can be no presumption that an executive official will always act reasonably. There may be presumption that he will act-bona fide; but that is a different thing. The test is, in my opinion, not what is actually done under the law, but what the law enables to be done. If the law enables orders to be passed which are unreasonable, and yet are consistent with its terms, then that cannot be called a law operating to impose only reasonable restrictions. I use the word ‘only’ advisedly because it appears to me that if the law enables unreasonable action in any case, then it cannot be saved by Article 19(5). In my opinion, a law to satisfy the criterion imposed by Article 19(5) must be so framed as to leave it open to the Courts to apply the objective test of reasonableness to its operation. This law is not so framed.”

25. Considering the procedural aspect of the law, there is no provision in the Ordinance of giving a landholder whose estate is to be taken under management any opportunity of being heard. The notification is declared to be conclusive. There is no provision for appeal over the action of the Government nor is there any remedy in a civil Court to challenge the order, as the jurisdiction of civil Courts is expressly barred by Section 76 of the Ordinance. In short, by a stroke of the pen of the executive stating that it is necessary for the full and efficient use of the land for agriculture, whatever it may mean in practice, and without any pre-requisite of an inquiry or any opportunity of being heard, a landholder can be deprived of his valuable fundamental right to hold property conferred by the Constitution. I, however, refrain from giving a definite decision on this aspect of the question whether by reason of the absence of any provision for inquiry or giving the land-holder any right of being heard before assumption of management or after, the law under consideration is bad. The procedural aspect would lead me to the consideration whether in dealing with property rights of the citizen to his prejudice the Legislature should provide some sort of an inquiry whether administrative, judicial or quasi-judicial as a reasonable safeguard of the abuse of the power by the executive. The question is not entirely free from controversy. The Bombay High Court in ‘In re; Shantabai Rani Benoor’, 53 Bom. L.R 142, held that as Section 9(1) of the Bombay Prevention of Prostitution Act, 1923, failed to provide for a reasonable opportunity being given to the person affected by it to be heard in his or her defence, it was void as it imposed an unreasonable restriction upon the fundamental rights of the citizen. The Madras High Court in ‘T.E. Ebrahim Saheb v. Regional Transport Authority, Tanjore, Tanjore’, AIR 1951 Mad 419, at p. 421 observed:

“Though it may be difficult to define exactly the principles of natural justice it is now firmly established that any order passed against a person that, is to say to his detriment, by any quasi judicial body contravenes the canons of natural justice if it was passed without notice to him.”

while the Orissa High Court in the case of ‘Ismail v. State of Orissa’, AIR 1951 Orissa 86 held:

“In considering the reasonableness of restrictions contemplated by Article 19(5) of the Constitution, a Court has to consider whether the fundamental principles of natural justice, which require that no party ought to be condemned or to have a decision given against him unless he has been given a reasonable opportunity of putting forward his case before an impartial tribunal, have been contravened.”

26. In that case Ray, C.J, observed:

“The essentials of procedure, in the minimum, are essentials of notice, opportunities to be beard and a tribunal. Essential of notice requires to apprise the victim of the cause against him in order to afford him sufficient opportunity to prepare and to make his answer. Opportunity to be heard is the second essential of procedure established by law. To condemn without hearing is repugnant to natural justice. Any procedure which does not guard against this requirement is no procedure by law. The essentials of such opportunities do not, however, consist in any particular form or method of hearing. All that is required is a reasonable opportunity to be heard. The opportunity does not guarantee a person a right to an appeal. One hearing is all that is required. Tribunal as the third essential of procedure, does not necessarily mean a judicial tribunal Any impartial will meet the requirement.”

27. The Supreme Court in the case of the ‘Province of Bombay v. Khushaldas S. Advani’, AIR (37) 1950 S.C 222, considered the powers of the High Court to issue a writ of certiorari and dealt with an order of requisition of land for a public purpose under the Bombay Land Requisition Ordinance of 1947 and held:

“Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari.”

28. A distinction was drawn in that case between administrative or ministerial orders on the one hand and judicial or quasi-judicial functions on the other. But the question of the validity of the Land Requisition Ordinance was not considered on the ground whether the law did or did not contain a procedure affording an opportunity to the person whose rights were prejudiced, to be heard.

29. It is not necessary for me, however, to give a decision on this aspect of the case, as I hold that the substantive nature of the impugned law imposing restriction on the fundamental rights cannot be considered reasonable or in the interests of the general public. I, however, venture to express my opinion that it cannot be laid down as an inflexible rule that every law which gives authority to the executive to encroach on a fundamental right must necessarily give an opportunity to the person concerned to be heard before any order is made to his prejudice. The question will depend on the nature of the legislation and the extent to which the fundamental right is contravened. A legislation providing for an emergency like a sudden outburst of an epidemic or a natural calamity like an earthquake or a flood may defeat its purpose if it lays down an elaborate enquiry with opportunity of being heard as a pre-requisite to taking action in the interests of the general public. On the other hand where there is no compelling necessity to act urgently, the legislation should ordinarily pi escribe a procedure observing the principles of natural justice which require that a person should not be condemned or deprived of his rights without an opportunity of being heard.

30. There is one further point to which I may refer. During the pendency of the application, the Constitution of India was amended by insertion of Article 31(A) and other Articles and such amendments have been given retrospective effect from the date of the coming into force of the Constitution. The applicant consequently craved leave to amend his petition not only challenging the validity of the amendments but also on the ground that the present impugned legislation did not come within the purview of Article 31(A), which reads as under:

“31A.: ‘Saving of laws providing for acquisition of Estate, etc.’ (1) Notwithstanding anything in the foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part:

Provided that where such law is a law made by the Legislature of a State, the Provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent,

(2) In this Article,

(a) the expression ‘estate’ shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that, area, and shall also include any ‘jagir, inam or muafi’ or other similar grant;

(b) the expression ‘rights’, in relation to an estate shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder or other intermediary and any lights or privileges in respect of land revenue.’

31. We did not pass any orders on this amendment application, but we did call upon the Advocate General to make his submission as to what he had to say. We heard both parties on the question. The learned Advocate General has frankly admitted that the impugned legislation does not come within the purview of Article 31(A) of the Constitution of India. Consequently, we have refrained from considering this question.

32. In conclusion, holding as I do that the impugned law, which is part of Section 35 of the Gharkhed Ordinance, contravenes the fundamental right of property guaranteed by the Constitution and does not come within the permissive legislation under Cl. (5) of Article 19 of the Constitution, I declare this provision of law to be void under Article 13(1) of the Constitution of India and issue a direction to the opponents prohibiting them and their officers from taking any action for enforcement of any order under that law and a further direction to restore management of the estate to the applicant. The applicant will have his costs of this application from the opponents, who will bear their own cost.

Baxi, J.:— I agree.

34. Application allowed.