Input:
etition (Criminal) No. 5 37 of 1988.
(Under Article 32 of the Constitution of India.) Dr. Y.S. Chitale, M.K. Pandit, P.H. Parekh, J.H. Pare kh and M.N. Sompal for the Petitioner.
45 P.S. Poti, Mrs. H. Wahi and M.N. Shroff for the Respondent section The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This is a petition under Artic le 32 of the Constitution of India challenging the legality a nd validity of the order of detention dated 17.9.1988 passed by the detaining authority (the Commissioner of Police, Ahmed a bad City) clamping upon the petitioner (the detenu herei n) the impugned order of detention under Sub section (2) of Section 3 of the Gujarat Prevention of Anti Social Activ i ties Act, 1985 on the ground that he on the materials plac ed before him was satisfied that it was necessary to make th is order of detention with a view to preventing the detenu fr om acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad City and directed t he detenu to be detained in Sabarmati Central Prison.
In purs u ance of the said order, the detenu has been detained in t he aforesaid prison.
The Government approved the order of detention on 21.9.1988.
The detenu submitted his representation dat ed 22.9.1988 to the Ist respondent who by his order dat ed 30.9.1988 rejected the same.
Hence this Writ Petition.
Before adverting to the arguments advanced by Dr. Ch i tale, on behalf of the detenu; we would like to produce t he relevant portion of the grounds of detention which rea ds thus: " .
As such you are a dangerous person as defined in section 2(c) of the said Act, and known as dangerous perso n.
As you with the aid of your Associates create dangero us atmosphere in the said vicinity you disturb public peac e, maintenance and as such following offences were register ed against you with Police Records, and in which you we re arrested.
Plice Offence Section Decision No. Station Regd.
No. 1.
Sabarmati 140/81 324, 114 Compro IPC mised 16.2.82 2.
Sherkotda 411/82 332,323, P.T. 114 IPC 46 3.
Sherkotda 412/82 PIC 147, 148 P.T. 149,307 BP Act 135(1) 4.
Sherkotda 452/85 IPC 302, Not 109,3 proved 5.
Sabarmati 346/87 IPC 302, In the 109,34 Court While considering complaints, in the above cases, Identif i cation (Chehra Nissan) Register, and charge sheets co n tents carefully, it is found that you, with the aid of yo ur associates, in the said area, give threats to innoce nt people, and cause injuries to them by showing dangero us weapons that like Acid, Knife, sharp weapons.
As such y ou commit offences punishable for causing injuries to hum an body and which are punishable in Indian Pen al Code . . " Dr. Chitale, the learned counsel for the petition er took us through the grounds of detention and the oth er relevant records, particularly the copies of the statemen ts of witnesses on the basis of which the detaining authori ty has claimed to have drawn his subjective satisfaction f or passing this impugned order of detention and raised vario us contentions inter alia contending; (1) The material a nd vital fact, namely, the acquittal of the detenu in the cas es registered in Crime Nos.
411 and 412 of 1982 of Sherkot da Police Station as shown at Serial Nos. 2 and 3 in the tab le appended to grounds of detention which fact would ha ve influenced the minds of the detaining authority one way or the other on the question whether or not to make the dete n tion order, has not been placed before the detaining autho r ity and this non placing and the consequent non consider a tion of the said material likely to influence the minds of the detaining authority vitiates the subjective satisfacti on and invalidates the detention order; (2) Leave apart, t he non disclosure of the names of the witnesses on whose stat e ments the detaining authority placed reliance to draw h is subjective satisfaction, claiming privilege under Secti on 9(2) of the Act, the grounds of detention otherwise a re vague or deficient and lacking details with regards to t he names of the 'associates ', for the disclosure of which no privilege could be claimed and hence it was not possible f or the detenu in the absence of the names of the so call ed 'associates ' to make an effective representation against t he order of detention, the deprivation of which amounts to an infringement of the 47 constitutional safeguard provided under Article 22(5) of t he Constitution of India; (3) Though the authority has me n tioned in more than one place the words 'your associate s ' which fact evidently should have influenced the mind of t he detaining authority in making this impugned order, the nam es of the associates are nowhere disclosed which fact wou ld show either the authority did not know as to who the assoc i ates were or knowing the names of the associates, he h as refrained from furnishing it to the detenu thereby disabli ng the detenu to make his effective representation; and (4) T he materials placed before the detaining authority were hard ly sufficient to draw any conclusion that the alleged activ i ties of the detenu were detrimental to the ' ' maintenan ce of public order. ' ' A plethora of decisions were cited by Dr. Chitale.
T he learned counsel for the respondent, Mr. Poti vehement ly urged that the contentions urged by Dr. Chitale do not mer it consideration and the detaining authority in the prese nt case is justified in passing this order of detention.
M r. Poti also cited number of decisions in support of his su b missions.
We shall now examine these contentions in seriatim.
In the grounds of detention five cases register ed against the detenu in respect of which he had been arrest ed are taken into consideration by the detaining authority to draw his subjective satisfaction that the detenu was di s turbing the maintenance of public order.
Out of the fi ve cases, two cases mentioned under Serial Nos. 2 and 3 a re shown as 'P.T. ', that is pending trial.
In other words on 17.9.88 i.e. the date of passing the order of detention, t he detaining authority was of the opinion that the trials of both the cases were not over, though actually the detenu h ad been acquitted even on 26.8.1988 in the case relating to Crime No. 411 of 1982 and on 5.6.88 in the case relating to Crime No. 412/82.
Though the acquittal of both the cases a re admitted, the date of acquittal of Crime No. 411/82 is giv en as 6.7.88 in the counter.
In the Writ Petition two grou nd Nos. 10 and 11 are with reference to these cases.
They re ad as follows: "10.
The petitioner states that in the grounds of detenti on the detaining authority has mentioned erroneously that Ca se No. 411 of 1982 is pending.
In fact, the said Case w as decided by the Court on 26.8.1988 and the petitioner w as acquitted by the judgment dated 26.9.1988 delivered by t he Metropolitan Magistrate, Court No. 7, Ahmedabad.
When 48 grounds of detention were passed and when the detenti on order was passed in September, 1988, the detaining authori ty has taken a non existing fact into account that the sa id case was pending trial.
The detention is liable to be quashed on this ground also.
Likewise, the grounds of detention mention ed that Case No. 412 of 1982 is pending which is erroneous.
T he said case was decided on 5.6.1988 and the petitioner w as acquitted.
The detention is liable to be quashed for taki ng this non existing ground.
" These two grounds are answered by the detaining author i ty in paragraphs 12 and 13 of his affidavit in reply swo rn in December 1988 which read thus: "12.
With reference to the averments made in para 10 of t he petition, I say that the same are not true ' and deni ed hereby.
I say that the petitioner was acquitted in Crime N o. 411 of 1982 by the Metropolitan Magistrate, Court No. 7, Ahmedabad by an order dated 6.7.1988.
However, it is submi t ted that each activity of the petitioner is a separa te ground of detention against the petitioner and, therefor e, even if the petitioner is acquitted in the said Crimin al Case, the detention order is not vitiated on that count.
With reference to the averments made in para 11 of t he petitioner, I say that the same are not true and deni ed hereby.
I say that it is true that in the Criminal Case N o. 412/82 the petitioner was acquitted by the Sessions Cou rt No. 20, Ahmedabad on 5.6.1984.
However, as submitted here i nabove, each activity of the petitioner is a separate grou nd for detention of the petitioner, and, therefore, the fa ct that the petitioner was acquitted in Criminal Case No. 4 11 (Sec 412) of 1982 has no bearing on the detention order a nd the detention order cannot be said to be vitiated on th at count." Though as per Section 6 of the Act the grounds of dete n tion are severable and the order of detention shall not be deemed to be invalid or inoperative if one ground or some of the grounds are invalid, the question that arises for co n sideration is whether the detaining authority was real ly aware of the acquittal of the detenu in those two cases 49 mentioned under Serial Nos. 2 and 3 on the date of passi ng the impugned order.
It is surprising that the detaini ng authority who has specifically mentioned in the grounds of detention that the petitioner 's cases 2 and 3 were pendi ng trial on the date of passing the order of detention has co me forward with a sworn statement in reply, filed nearly thr ee months after signing the grounds of detention, that he kn ew that the accused had been acquitted in both the cases.
T he averments made in paragraphs 12 and 13 in the affidavit in reply are not clear at what point of time the detaini ng authority came to know of the acquittal of the detenu in both the cases.
At any rate, it is not his specific ca se that the fact of acquittal was placed before him for consi d eration at the time of passing the impugned order.
But wh at the authority repeatedly states is that "each activity of the petitioner is a separate ground of detention" and ad ds further that "the fact that the petitioner was acquitted in Criminal Case No. 411/82 and 412/82 is of no consequence ".
We are unable to comprehend the explanation given by t he detaining authority.
It has been admited by Mr. Poti th at the sponsoring authority initiated the proceedings a nd placed all the materials before the detaining authority on 14.9.1988 by which date the petitioner had already be en acquitted in the above said two cases.
Thus it is clear th at either the sponsoring authority was not aware of the acqui t tals of those two cases or even having been aware of t he acquittals had not placed that material before the detaini ng authority.
So at the time of signing the order of detentio n, the authority should have been ignorant of the acquittal section Evidently to get over the plea of the detenu in the wr it petition in this regard for the first time in the counte r, the detaining authority is giving a varying statement as if he knew about the acquittal of the detenu in both the case section As ruled by this Court in Shiv Ratan Makim vs Union of Ind ia & Ors., [1985] Supp.
(3) SCR 843 at page 848 "even if a criminal prosecution fails and an order of detention is th en made, it would not invalidate the order of detention" b e cause as pointed out by this Court in Subharta vs State of West Bengal, ; "the purpose of preventi ve detention being different from conviction and punishment a nd subjective satisfaction being necessary in the former whi le proof beyond reasonable doubt being necessary in t he latter", the order of detention would not be bad mere ly because the criminal prosecution has failed.
In the prese nt case, we would make stress, not on the question of acquitt al but on the question of non placing of the material and vit al fact of acquittal which if had been placed, would ha ve influenced the minds of the detaining authority one way or the other.
Similar questions arose in Sk.
Nizamuddin vs State of West Bengal; , in which the dete n tion order was passed under the provisions of Maintenance of 50 Internal Security Act.
In that case the ground of detenti on was rounded on a solitary incident of theft of alumini um wire alleged to have been committed by the detenu therei n.
In respect of that incident a criminal case was filed whi ch was ultimately dropped.
It appeared on 'record that t he history sheet of the detenu which was before the detainin g. authority did not make any reference to the criminal ca se launched against the petitioner, much less to the fact th at the prosecution had been dropped or the date when the pet i tioner was discharged from the case.
In connection with th is aspect this Court observed as follows: "We should have thought that the fact that a criminal ca se is pending against the person who is sought to be proceed ed against by way of preventive detention is a very materi al circumstance which ought to be placed before the Distri ct Magistrate.
That circumstance might quite possible have an impact on his decision whether or not to make an order of detention.
It is not altogether unlikely that the Distri ct Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for t he present, but the criminal case should be allowed to run i ts full course and only if it fails to result in convictio n, then preventive detention should be resorted to.
It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to t he District Magistrate.
" It is true that the detention order in that case was s et aside on other grounds but the observation extracted abo ve is quite significant.
The above observation was subsequent ly approved by this Court in Suresh Mahato vs The Distri ct Magistrate, Burdwan and Others, AIR 1975 SC 720 and in As ha Devi vs Additional Chief Secretary to the Government of Gujarat & Ant., ; In the latter case (i. e. Asha Devi), it has been pointed out: " . . if material or vital facts which would infl u ence the minds of the detaining authority one way of t he other on the question whether or not to make the detenti on order, are not placed before or are not considered by t he detaining authority it would vitiate its subjective sati s faction rendering the detention order illegal.
" 51 In Sita Ram Somani vs State of Rajasthan and Other s, certain documents which were claimed to ha ve been placed before the Screening Committee in the fir st instance were not placed before the detaining authority a nd consequently there was no occasion for the detaining autho r ity to apply its mind to the relevant material.
In t he circumstances of that case, a principal point was rais ed before this Court that there was no application of mind by the detaining authority to those vital materials which we re with held.
This Court, while answering that contenti on observed thus: "No one can dispute the right of the detaining authority to make an order of detention if on a consideration of t he relevant material, the detaining authority came to t he conclusion that it was necessary to detain t he appellant. 'But the question was whether the detaining a u thority applied its mind to relevant considerations.
If it did not, the appellant would be entitled to be released.
" From the above decisions it emerges that the requisi te subjective satisfaction.
the formation of which is a cond i tion precedent to passing of a detention order will g et vitiated if material or vital facts which would have beari ng on the issue and weighed the satisfaction of the detaini ng authority one way or the other and influenced his mind a re either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority befo re issuing the detention order.
It is clear to our mind that in the case on hand, at the time when the detaining authori ty passed the detention order this vital fact, namely, t he acquittals of the detenu in case Nos.
mentioned at seri al Nos. 2 and 3 have not been brought to his notice and on t he other hand they were withheld and the detaining authori ty was given to understand that the trial of those cases we re pending.
The explanation given by the learned counsel f or the respondents, as we have already pointed out, cannot be accepted for a moment.
The result is that the nonplacing of the material fact namely the acquittal of detenu in t he above said two cases resulting in non application of min ds of the detaining authority to the said fact has vitiated t he requisite subjective satisfaction, rendering the impugn ed detention order invalid.
Since we have now come to the conclusion that the ord er of detention is to be set aside on the first ground itsel f, we are not inclined to traverse on other grounds.
In t he premises, the impugned order is set aside and the Wr it Petition is allowed.
We direct that the detenu be set at liberty forthwith.
P.S.S. Petition allowed.

Output:
The petitioner was detained under an order dated 17 th September, 1988 made by the detaining authority under sub section (2) of section 3 of the Gujarat Prevention of Anti Social Activ i ties Act, 1985 with a view to prevent him from acting in a ny manner prejudicial to the maintenance of public order.
T he grounds of detention mentioned five offences register ed against him with police records, out of which the first o ne under section 324 IPC was stated to have been compromised, t he second under section 332 IPC and the third under sections 148 and 3 07 IPC respectively were stated to be pending trial, the four th under section 302 IPC was stated not proved, while the fif th under section 302 IPC was stated to be in the court.
The Government approved the said order on 21st Septe m ber, 1988.
The detenu submitted his representation dat ed 22nd September, 1988 to the first respondent who by h is order dated 30th September, 1988 rejected the same.
He thereupon, filed this petition under Article 32 of t he Constitution.
It was contended for the petitioner that he has be en acquitted even on 26th August, 1988 in the case shown at serial No. 2 in the Table appended to the grounds of dete n tion, and on 6th June, 1988 in the case shown at Serial N o. 3, that this material and vital fact of his acquittal in t he said cases had not been placed before the detaining author i ty and this non placing and the consequent non considerati on of the said material likely to influence the mind of t he detaining authority vitiates the subjective satisfaction a nd invalidates the detention order, that the names of his s o called associates were nowhere disclosed which fact wou ld show either the authority did not know as to who the se associates were or knowing their names has refrained fr om furnishing it to the detenu thereby disabling him to ma ke his effective representation, and 44 that the grounds of detention otherwise were vague or def i cient.
For the respondent it was contended that each activ i ty of the petitioner was a separate ground of detention a nd that the fact that the petitioner was acquitted in the sa id cases was of no consequence.
Allowing the writ petition, HELD: The requisite subjective satisfaction, the form a tion of which is a condition precedent to passing of a detention order, will get vitiated if material or vit al facts which would have bearing on the issue and weighed t he satisfaction of the detaining authority one way or the oth er and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention orde r. [51D E] In the instant case, at the time when the detaini ng authority passed the detention order the vital fact of acquittal of the detenu in cases mentioned at serial Nos. 2 and 3 had not been brought to his notice and on the oth er hand it was withheld and the detaining authority was giv en to understand that the trial of those cases was pendin g.
This non placing of the material fact resulting in no n application of the mind of the detaining authority to t he said fact has vitiated the requisite subjective satisfa c tion, rendering the impugned detention order invalid.
T he same is, therefore, set aside.
The detenu be set at liber ty forthwith.
[51E, F, G, H] S.K. Nizamuddin vs State of West Bengal, ; ; Suresh Mahato vs The District Magistrate, Burdwan Ors., AIR 1975 SC 728; Asha Devi vs Additional Secretary to the Government of Gujarat & Anr., ; and Si ta Ram Somani vs State of Rajasthan & Ors., referred to.
Shiv Rattan Makim vs Union of India & Ors., [1985] Sup p. (3) SCR 843 and Subharta vs State of West Bengal , distinguished.


Input:
ivil Appeal Nos.
14 32, 902, 879, 1130 32, 1121, 1172, 1215, 1201, 1127, 1128, 1222, 1224, 1223, 1275, 1129, 1523, 1539, 1280, 863, 1361, 1323, 1375, 1621, 1374, 1410, 1628, 2117, 1961, 1917, 1918, 1919, 1920 & 2290 of 1978 3447 3450/79.
Appeals by Special Leave from the Judgments and order dated 13.10.1977 etc.
Of the Andhra Pradesh High Court in Writ Petition No. 1872/77 etc.
AND WRIT PETITION Nos: 3973, 3998, 3836, 4198, 4199, 4200, 4210, 4263, 4317, 4318, 4414, 4256, 4537 and 4500 of 1978.
F. section Nariman, K. Krishna Rao and K. Rajendra Choudhary far the Appellants in CA Nos.
14 to 23, 25 29, 1223 1224 1628/78, 3447 and 3449/79.
A. Subba Rao for the Appellants in CA No. 1126 & WP Nos.
3973, 4198, 4199, 4200, 4317, 4318 4210/78.
A. V. V. Nair for the Appellants in CA Nos.
1215, 1361, 2117, 1286 and W.P. No. 1374/78.
G. section Rama Rao for the Appellants in CA No. 1121 & Petitioners in WP Nos. 4256 and 3836/78.
Vepa Sarathi and B. Ranta Rao for the Appellants/Petitioners in CA Nos. 24, 30, 32, 1172, 1127, 1128, 1129, 1261, 1323 1275/ 78 and WP Nos.
4263, 4500 4537/78.
section Venkata Reddy and G. Narsimulu for the Appellants in CA Nos. 31, 902, 879, 1130 32, 1410, 1621, 1917 20, 1961/78 & 1373/78.
A. K. Ganguli for the Appellants in CAs 1222 and 863/78.
R A. V. Rangam for the Petitioners in WP No. 3998/78.
section Balakrishan for the Petitioners in WP 4414/78.
V.S. Desai and A. Subba Rao for the Applicant/Intervener.
1147 K. K. Venugopal Addl.
, Ram Chandra Reddy Adv.
A Genl.
A. P. and B. Parthasarthy for the appearing respondents.
BHAGWATI, J.
These appeals by special leave and the writ petitions represent a last but desperate attempt by the; class of land holders in Andhra Pradesh to defeat an agrarian reform legislation enacted by the State or the benefit of the weaker sections of community.
It is indeed a matter of regret that a statute intended to strike at concentration of land in the hands of a few and to act as a great equaliser by reducing inequality in holding of land between the haves and the have nots should have practically remained unimplemented for a period of over seven years.
Unfortunately, this is the common fate of much of our social welfare legislation.
We can boast of some of the finest legislative measures calculated to ameliorate the socio economic conditions of the poor and the deprived and to reach social and economic justice to them, but regret ably, a large part of such legislation has remained merely on paper, and the benefits of such legislation have not reached the common man to any appreciable extent.
The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act 1 of 1973 (hereinafter referred to as the Andhra Pradesh Act) which is challenged in the present appeals was enacted by the Andhra Pradesh Legislature on 1st January 1973.
Soon after its enactment, the constitutional validity of the Andhra Pradesh Act was challenged before the Andhra Pradesh High Court on various grounds, but a full Bench of the High Court negatived the challenge and held the Andhra Pradesh Act to be constitutionally valid.
Though this judgment was delivered by the High Court as early as 11th April, 1973, no effective steps for implementation of the Andhra Pradesh Act could be taken, since the Andhra Pradesh Act merely remained on the statute book and for some inexplicable reason, it was.
not brought into force until 1st January 1975.
Even after the Andhra Pradesh Act was brought into force, not much enthusiasm was shown be the Government in implementing its provisions and in the mean while, it was found necessary to amend the legislation and hence the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Amendment Act 1977 was enacted with retrospective effect from 1st January 1975 and by this amending Act certain amendments were made which included inter alia the introduction of section 41A.
We shall presently refer to the relevant provisions of the amended Andhra Pradesh Act, but before we do so, it is necessary to point out that as soon as the amending Act was passed, another round 1148 of litigation was started by the landholders by filing writ petitions in the High Court challenging once again the constitutional validity of the Andhra Pradesh Act.
There were several grounds on which the constitutional validity was challenged but the main ground was that by reason of the enactment of the Urban Land (Ceiling Regulation) Act 1976 (hereinafter referred to as the Central Act), the Andhra Pradesh Act had become void and inoperative.
Certain other questions involving the interpretation of the provisions of the Andhra Pradesh Act were also raised in some of the writ petitions, but they too need not be mentioned here, because in the course of the hearing we made it clear to the parties that we would examine only the constitutional validity of the Andhra Pradesh Act and other questions could be agitated by the landholders in the appeals filed by them against the orders determining surplus land.
It was pointed out to us that some of the landholders had not filed appeals within the prescribed time and grave injustice would therefore result to them if these question, were not decided by us.
But the learned Additional Solicitor General appearing on behalf of the State family stated before us that if appeals have been filed beyond time or are filed within a month of disposal of these appeals, the delay in filing the appeals would be condoned.
Turning to the constitutional challenge which in those days was required to be decided by a full Bench of 5 Judges of the High Court, it was held that the enactment of the Central Act did not have the effect of invalidating the whole of the Andhra Pradesh Act, but since the provisions of the Andhra Pradesh Act were repugnant to the provisions of the Central Act so far as concerned land satisfying both the definition of "land" in the Andhra Pradesh Act and the definition of "vacant land" in the Central Act, the Andhra Pradesh Act was held not applicable to "vacant land" falling within the ambit of the Central Act.
The High Court accordingly granted a declaration to this effect to the landholders, but save for this limited relief, dismissed the writ petitions in all other respects, since in the opinion of the High Court there was no substance in any of the other contentions raised on behalf of the landholders.
The landholders thereupon preferred the present appeals after obtaining special leave from this Court.
The principal contention urged on behalf of the landholders in support of the appeals was that the Andhra Pradesh Act was ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature.
This contention was based on two resolutions, one dated 7th April 1972 passed by the Andhra Pradesh Legislative Council and the other dated 8th April 1972 passed by the Andhra Pradesh Legislative Assembly under clause (1) of Article 1149 252 of the Constitution.
This Article carves out an exception derogating from the normal distribution of legislative powers between the Union and the States under Article 246 and is in the following terms: article 252(1) : If it appears to the legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in Articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State be which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.
(2) An Act so passed by Parliament may be amend ed or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.
" The effect of passing of resolutions be the Houses of Legislature of two or more States under this constitutional provision is that Parliament which has otherwise power to legislate with respect to a matter, except as provided in Articles 249 and 250, becomes entitled to legislate with respect to such matter and the State Legislatures passing the resolutions cease to have power to make law relating to.
that matter.
The resolutions operate as abdication or surrender of the powers of the State Legislatures with respect to the matter which is the subject of the resolutions and such matter is placed entirely in the hands of Parliament and Parliament alone can then legislate with respect to it.
It is as if such matter is lifted out of List II and placed in List I of the Seventh Schedule to the Constitution.
This would seem to be quite clear on a plain natural construction of the language of clauses (1) and (2) of Article 252 and no authority.
is necessary in support of it, but if any was wanted, it may be found in the decision of a Full Bench of five Judges of this Court in Union of India vs V. V. Chaudhary in fact the same Bench as the present one where an identical view has been taken.
It was in pursuance of clause (l) of this Article that a Resolution 1150 was passed by the Andhra Pradesh Legislative Council on 7th April 1972 to the effect that "the imposition of a ceiling on urban immovable property and acquisition of such property in excess of the ceiling and all matters connected therewith or ancillary and incidental thereto should be regulated in the State of Madhya Pradesh by Parliament by law and an identical resolution in the same terms was passed on the next day by the Andhra Pradesh Legislature Assembly.
Similar resolutions were also passed by the Houses of Legislature of some other States, though there is no material to show as to when they were passed.
It was however common ground that at best some of these resolutions were passed prior to the enactment of the Andhra Pradesh Act.
The result was that at the date when the Andhra Pradesh Act was enacted, Parliament alone was competent to legislate with respect to ceiling on urban immovable property and acquisition of such property in excess of the ceiling and all connected, ancillary or incidental matters, and the Andhra Pradesh Legislature stood denuded of its power to legislate on that subject.
Now the Andhra Pradesh Act, as its long title shows, was enacted to consolidate and damned the law relating to the fixation of ceiling on agricultural holdings and taking over of surplus land and matter connected therewith.
On its plain terms, it applies to land situate in any part of Andhra Pradesh.
Section 3(f) creates an artificial unit called 'family unit ' by defining it as follows: "Sec. 3(f) "family unit" means (i) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and their unmarried minor daughters; if any; (ii) in the case of an individual who has no spouse such individual and his or her minor sons and unmarried minor daughters; (iii) in the case of an individual who is a divorced husband and who has not remarried, such individual and his minor sons and unmarried minor daughters, whether in his custody or not; and (iv) where an individual and his or her spouse are both dead, their minor sons and unmarried minor daughters.
Explanation Where a minor son is married, his wife and their offspring, if any, shall also be deemed to be members of the family unit of which the minor son is a member: 1151 The term "land" is defined in section 3(j) to mean "land which A is used or is capable of being used for purposes of agriculture, or for purposes ancillary thereto, including horticulture, forest land, pasture land, waste land, plantation and tope; and includes land deemed to be agricultural land under this Act".
Explanation I to this definition enacts a rebuttable presumption that land held under Ryotwari settlement shall, unless the contrary is proved, be deemed to be 'land ' under the Andhra Pradesh Act.
Section 3(o) defines 'person ' as including inter alia an individual and a family unit.
Section 10 is the key section which imposes ceiling on the holding of land by providing that if the extent of the holding of a person is in excess of the ceiling area, the person shall be liable to surrender the land held in excess.
If therefore an individual or a family unit holds land in excess of the ceiling area, the excess would have to be surrendered to the State Government.
But the question then arises, what is the ceiling area above which a person cannot hold land.
The answer is provided by section 4 which reads as follows: "Sec.
4(1) The ceiling area in the case of a family unit consisting of not more than five members shall be an & extent of land equal to one standard holding.
(2) The ceiling area in the case of a family unit consisting of more than five members shall be an extent of land equal to one standard holding plus an additional extent of one fifth of one standard holding for every such member in excess of five, so however that the ceiling area shall not exceed two standard holdings.
(3) The ceiling area in the case of every individual who is not a member of a family unit, and in the case of any other person shall be an extent of land equal to one standard holding.
Explanation: In the case of a family unit, the ceiling area shall be applied to the aggregate of the lands held by all the members of the family unit".
It will thus be seen that the ceiling area in the case of an individual who is not a member of a family unit is equivalent to one standard holding and so also in the case of a family unit with not more than five members, the ceiling area is the same, but if the family unit consists of more than five members, the ceiling area would stand increased by one fifth of one standard holding for every additional member of the family unit, subject however to the maximum limit of 2 standard holdings.
When the ceiling area is applied to the holding of a 1152 family unit, the Explanation requires that the lands held by all the members of the family unit shall be aggregated for the purpose of computing, the holding of the family unit.
Where, therefore, there in a family unit consisting of father, mother and three minor sons or daughters, the lands held by all these persons would have to be clubbed together and then the ceiling area applied to the aggregate holding.
There is no distinction made in the definition of 'family unit ' between a divided minor son and an undivided minor son.
Both stand on the same footing and a divided minor son is as much a member of the family unit as an undivided minor son, and consequently the lands held by a divided minor son would have to be included in the holding of the family unit for the purpose of application of the ceiling area.
Section 7 invalidates certain transfers of land and provides for inclusion of such lands in the holding of an individual or a family unit.
Then there is a provision in section 8 for furnishing a declaration in respect of his holding by every person whose land exceeds the ceiling area and the Tribunal is required by section 9 to hold an enquiry.
and pass an order determining the land held in excess of the ceiling area.
Such land has to be surrendered by the person holding the land and on such surrender, the Revenue Divisional officer is empowered under section 11 to take possession of the land which thereupon vests in the State Government free from all encumbrances.
Section 14 provides inter alia that the land vested in the State Government shall be allotted for use as house sites for agricultural labourers.
village artisans or other poor persons owning no houses or house sites or transferred to the weaker sections of the people dependent on agriculture for purposes of agriculture/or for purposes ancillary thereto in such manner as may be prescribed by the Rules, subject to a proviso that as far as practicable not less than one half of the total extent of land so allotted or transferred shall be allotted or transferred to the members of the Scheduled Castes and the Scheduled Tribes.
Section 15 enacts a provision for payment of compensation for land vested in the State Government at the rates specified in the Second Schedule.
These are the only relevant provisions of the Andhra Pradesh Act which need to be referred to for the purpose of the present appeals.
We may now turn to examine the relevant provisions of the Central Act.
This Act was enacted by Parliament pursuant to the authority conferred upon it by the resolutions passed by the Houses of legislature of several States including the State of Andhra Pradesh under clause (1) of Article 252.
It received the assent of the President on 17th February 1 976 and as its long title and recital shows it was enacted to provide for the imposition of a ceiling on vacant 1153 land is urban agglomerations for the acquisition of such land in excess of the ceiling limit, to regulate the construction of buildings on such land and for matters connected therewith, with a view to preventing the concentration of urban land in the hands of a few persons and speculation and profiteering therein and with a view to bringing about an equitable distribution of land in urban agglomerations to sub serve the common good.
We shall refer to a few material provisions of this Act.
Section 2(a) (i) defines "appointed day" to mean in relation to any State to which this Act applies in the first instance which includes the State of Andhra Pradesh the date of introduction of the Urban Land (Ceiling and Regulation) Bill, 1976 in Parliament.
This was the Bill which culminated in the Act and it was introduced in Parliament on 28th January 1976.
Consequently, this date would be the 'appointed day ' for the purpose of applicability of the Act to the State of Andhra Pradesh.
The definition of "family" in section 2 (f) is materially in the same terms as the definition of "family unit" in the Andhra Pradesh Act.
Then follow two important definitions which needed to be set out in extenso.
The word "person" is defined in section 2(i) as including inter alia an 'individual ' and the 'family '.
Section 2(n) defines "urban agglomeration" in the following terms: "Sec.2(n) (A) in relation to any State of Union territory specified in column (1) of Schedule 1, means (i) the urban agglomeration specified in the corresponding entry in column (2) thereof and includes the peripheral area specified in the corresponding entry in column (3) thereof; and (ii) any other area which the State Government may, with the previous approval of the Central Government, having regard to its location, population (population being more than one lakh) and such other relevant factors as the circumstance of the case may require, by notification in the official Gazette, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in that Schedule and the peripheral area there for shall be one kilometre; (B) xx xx xx xx xx" The term 'urban land ' is defined in section 2(o) to mean: Sec.
2(o)(i): any land situated within the limits of an urban agglomeration and referred to as such in the master plan; or 1154 (ii) in a case where there is no master plan, or where the master plan does not refer to any land as urban land, any land within the limits of an urban agglomeration and situated in any area included within the local limits of a municipality (by whatever name called), a notified area committee, a town area committee, a city and town committee, a small town Committee, a cantonment board or a panchayat, but does not include any such land which is mainly used for the purpose of agriculture.
Explanation: For the purpose of this clause and clause (q), (A) "agriculture" includes horticulture, but does not include (i) raising of grass, (ii) dairy farming, (iii) poultry farming, (iv) breeding of live stock, and (v) such cultivation, or the growing of such plant, as may be prescribed.
(B) land shall not be deemed to be used mainly for the purpose of agriculture, if such land is not entered in the revenue or land records before the appointed day as for the purpose of agriculture; (C) notwithstanding anything contained in clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the master plan for a purpose other than agriculture; " Section 2(q) gives a definition of "vacant land" by providing that "vacant land" means, subject to certain exceptions which are not material, land not being land mainly used for the purpose of agriculture, in an urban agglomeration.
Section 3 is the rebuttal section which imposes ceiling on holding of 'vacant land ' by providing that: "Sec. 3.
Except as otherwise provided in this Act, on and from the commencement of this Act, no person shall be n entitled to hold any vacant land in excess of the ceiling limit in the territories to which this Act applies under sub section (2) of section 1." 1155 Section 4 divides urban agglomeration into categories A, B, C and D lays down different ceiling limits for these different categories.
Then there is a provision in section 5 invalidating in certain circumstances the transfer of vacant land made at any time during the period commencing on the appointed day and ending with the commencement of the Act.
The procedure for determining "vacant land" held in excess of the ceiling limit is laid down in sections 6 to 9 and section 10 enacts a provision for acquisition of such land held in excess of such limit.
Section 23 provides for disposal of vacant land acquired under the Act and it empowers the State Government to allot such vacant land to "any person for any purpose relating to or in connection with any industry or for providing residential accommodation of such type as may be approved by the State Government to the employees of any industry.
It will thus be seen that the Central Act imposes a ceiling on holding of land in urban agglomeration other than land which is mainly used for the purpose of agriculture and agriculture in this connection includes horticulture, but does not include raising of grass, dairy farming, poultry farming, breeding live stock and cultivation or the growing of such plants as may be prescribed by the Rules, and, moreover, in order to fall within the exclusion, the land must be entered in the revenue or land record before the appointed day as for the purpose of agriculture and must also not have been specified in the master plan for a purpose other than agriculture.
Now, as we have already pointed out above, the Andhra Pradesh Legislature had, at the time when the Andhra Pradesh Act was enacted, no power to legislate with respect to ceiling on urban immovable property.
That power stood transferred to parliament and as a first step towards the eventual imposition of ceiling on immovable property of every other description, the Parliament enacted the Central Act with a view to imposing ceiling on vacant land, other than land mainly used for the purpose of agriculture, in an urban agglomeration.
The argument of the landholders was that the Andhra Pradesh Act sought to impose ceiling on land in the whole of Andhra Pradesh including land situate in urban agglomeration and since the concept of agglomeration defined in section ' 2(n) of the Central Act was an expensive concept and any area with an existing or future population of more than one lakh could be notified to be an urban agglomeration, the whole of the Andhra Pradesh Act was ultra vires and void as being outside the legislative competence of the Andhra Pradesh Legislature.
This argument plausible though it may seem, in our opinion, is unsustainable.
It is no doubt true that if the Andhra Pradesh Act seeks to impose ceiling on land falling within an urban agglomeration, it would be outside the area of its legislative competence, because it 1156 cannot provide for imposition of ceiling on urban immovable property.
But the only urban agglomerations in the State of Andhra Pradesh recognised in the Central Act were those referred to in section 2(n) (A) (ii) and there can be no doubt that so far as these urban agglomerations are concerned, it was not within the legislative competence of the Andhra Pradesh Legislature to provide for imposition of ceiling on land situate within these urban agglomerations.
It is, however, difficult to see how the Andhra Pradesh Act could be said to be outside the legislative competence of the Andhra Pradesh Legislature in so far as land situate in the other areas of the State of Andhra Pradesh is concerned.
We accept that any other area in the State of Andhra Pradesh with a population of more than one lakh could be notified as an urban agglomeration under section 2(n)(A)(ii) of the Central Act but until it is so notified it would not be an urban agglomeration and the Andhra Pradesh Legislature would have legislative competence to provide for imposition of ceiling on land situate within such area.
No sooner such area is notified to be an urban agglomeration, the Central Act would apply in relation to land situate within such area, but until that happens the Andhra Pradesh Act would continue to be applicable to determine the ceiling on holding of land.
It may be noticed that the Andhra Pradesh Act came into force on 1st January 1975 and it was with reference to this date the surplus holding of land in excess of the ceiling area was required to be determined and if there was any surplus it was to be surrendered to the State Government It must therefore follow that in an area other than that comprised in the urban agglomerations referred to in section 2(n) (A) (i), land held by a person in excess of the ceiling area would be liable to be determined as on 1st January 1975 under the Andhra Pradesh Act and only land within the ceiling area will be allowed to remain with him.
It is only in respect of land remaining with a person whether an individual or a family after the operation of the Andhra Pradesh Act, that the Central Act would apply if and when the area in question is notified to be an urban agglomeration under section 2(n)(A)(ii) of the Central Act.
We fail to see how it can at all be contended that merely because an area may possibly in the future be notified as an urban agglomeration under section 2(n)(A)(ii) of the Central Act, the Andhra Pradesh Legislature would cease to have competence to legislate with respect to ceiling on land situate in such area even though it is not an urban agglomeration at the date of the enactment of the Andhra Pradesh Act.
Undoubtedly, when an area is notified as an urban agglomeration under section 2(n)(A)(ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have application but by that time the Andhra Pradesh 1157 Act would have already operated to determine the ceiling on holding of land falling within the definition in section 3(j) of that Act and situate within such area.
It is therefore not possible to uphold the contention of the landholders that the whole of the Andhra Pradesh Act is ultra vires and void as being outside the area of legislative competence of the Andhra Pradesh Legislature.
It is only in respect of land situate within the urban agglomerations referred to in section 2(n) (A) (i) of the Central Act that the Andhra Pradesh Act would not apply but it would be fully applicable in respect of land situate in all the other areas of the State of Andhra Pradesh.
The next contention urged on behalf of the landholders was that on a proper construction of the relevant provisions of the Andhra Pradesh Act, a divided minor son was not liable to be included in "family unit" as defined in section 3(f) of that Act.
The argument was that sub section (2) of section 7 did not invalidate all partitions of joint family property but struck only against partitions effected on or before 2nd May 1972 and thus by necessary implication recognised the validity of partitions affected prior to that date.
If therefore a partition was effected prior to 2nd May 1972 and under that partition a minor son become divided from his father and mother, the divided minor son could not be included in the family unit and his property could not be clubbed with that of his father and mother, because otherwise it would amount to invalidation of the partition though section 7, sub section (2) clearly recognised such partition as valid.
This argument is clearly fallacious in that it fails to give due effect to the definition of family unit in section 3(f) and the provisions of section 4.
It is undoubtedly true that a partition effected prior to 2nd May 1972 is not invalidated by the Andhra Pradesh Act and therefore any property which comes to the share of a divided minor son would in law belong to him and would not be liable to be required as part of joint family property.
But under the definition of family unit in section 3(f) the divided minor son would clearly be included in the family unit and by reason of section 4 his land whether self acquired or obtained on partition would be liable to be clubbed with the land held by the other members of the family unit.
The land obtained by the divided minor son on partition would be liable to be aggregated with the lands of other members of the family unit not because the partition is invalid but because the land held by him howsoever acquired is liable to be clubbed together with the lands of others for the purpose of applying the ceiling area to the family unit.
We do not therefore see how a divided minor son can be excluded from the family unit.
That would be flying in the face of sections 3(f) and 4 of the Andhra Pradesh Act.
1158 Then a contention was advanced on behalf of the landholders that the definition of "family unit" was violative of Article 14, of the Constitution in that it made unjust discrimination between a minor son and the major son by including minor son in the "family unit" while excluding a major son from it.
This contention has already been dealt with by learned brother Tulzapurkar, J. in the judgment delivered by him today in the Haryana Land Ceiling matters and we need not repeat what he had already stated there while repelling this contention.
Moreover, this contention isl no longer open to the landholders since the Andhra Pradesh Act is admittedly an agrarian reform legislation and it is protected against challenge on the ground of infraction of Articles 14, 19 and 31 by the protective umbrella of Article 31A.
We do not therefore see any substance in the contentions urged on behalf of the landholders and we accordingly dismiss the appeals and the writ petitions with costs.
S.R. Appeals & Petitions dismissed.

Output:
The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act I of 1973 was enacted on 1st of January 1973.
Though a Full Bench of the High Court of Andhra Pradesh when challenged by some of the land holders held by its judgment dated 11th April, 1973, the Act to be constitutionally valid; yet the said Act was not brought into force till 1st January 1975.
In ]977, the Act was amended with retrospective effect from 1st January 1975 by the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Amendment Act 1977.
As soon ns the Amending Act was passed, the land holders once again filed writ petitions in the High Court, challenging the constitutional validity of the Andhra Pradesh Act.
The main ground, inter alia, was that by reason of the enactment of the Urban Land (Ceiling & Regulation) Central Act, 1976, the Andhra Prdesh Act had become void and inoperative.
A Full Bench of five judges of the High Court held that the enactment of the Central Act did not have the effect of invalidating the whole of the Andhra Pradesh Act, but since the provisions of the Andhra Pradesh Act were repugnant to the provisions of the Central Act so far as concerned land satisfying both the definition of "land" in the Andhra Pradesh Act and the definition of "vacant land", in the Central Act, the Andhra Pradesh Act was held not applicable to "vacant lands" falling within the ambit of the Central Act.
ave for this limited relief, the High Court dismissed the writ petitions in all other respects.
Hence the appeals by the land holders after obtaining special leave from this Court.
Writ Petitions were also filed directly in this Court by some of the land holders.
Dismissing the appeals, and writ petitions, the Court ^ HELD :1.
Article 246 of the Constitution of India carves out an exception derogating from the normal distribution of legislative powers between the Union and the States.
The effect of passing of resolutions by the Houses of Legislature of two or more States under this constitutional provision is that Parliament which has otherwise no power to legislate with respect to a matter, 1144 except as provided in Articles 249 and 250, becomes entitled to legislate with regard to such matter and the State Legislature passing the resolutions cease to have power to make law relating to that matter.
The resolutions operate as abdication or surrender of the powers of the State Legislatures with respect to the matter which is the subject of the resolutions and such matter is placed entirely in the hands of Parliament and Parliament alone can then legislate with respect to each.
It is as if such matter is lifted out of list II and placed in List I of the Seventh Schedule to the Constitution.
A plain natural construction of the language of Clauses (1) and (2) of Article 252 makes this position clear.
It was in pursuance of clause (1) of Article 352 that a resolution was passed by the Andhra Pradesh Legislative Council on 7th April, 1972 to the effect that "the imposition of ceiling of urban immovable property and acquisition of such property in excess of the ceiling and all matters concerned therewith or ancillary and incidental thereto should be regulated in the State or Andhra Pradesh by Parliament by law" and on identical resolution in the same terms was passed on the next day by the Andhra Pradesh Legislative Assembly.
The result was that at the date when the Andhra Pradesh Act was enacted, Parliament alone was competent to legislate with respect to ceiling on urban immovable property and acquisition of such property in excess of the ceiling and all connected, ancillary or incidental matters, and the Andhra Pradesh Legislature stood denuded of its power to legislate on that subject.
[1149 A, E H, 1150 A C] Union of India vs V. B. Choudhary, 19791 3 SCR 802; followed.
Under the powers thus transferred Parliament enacted the Central Act with a view to imposing ceiling on vacant land, other land mainly used for the purpose of agriculture, in an urban.
agglomeration.
The Central Act imposes a ceiling on holding of land in urban agglomeration other than land which is mainly used for the purpose of agriculture and agriculture in this connection includes horticulture, but does not include raising of grass, daily farming, poultry farming, breeding live stock and such cultivation or the growing of such plants as may be prescribed by the Rules, and, moreover, in order to fall within the exclusion, the land must be entered in the revenue cr land record before the appointed day as for the purpose of agriculture and must also not have been specified in the master plan for a purpose other than agriculture.
[119 C F] 3.
It is no doubt true that if the Andhra Pradesh Act seeks to impose ceiling on land falling within an urban agglomeration, it would be outside rh art of its legislative competence, because it cannot provide for imposition of ceiling on urban immovable property.
But the only urban agglomerations in the State of Andhra Pradesh recognised in the Central Act were those referred to in Section 2(n) (A) (i) and there can be no doubt that so far as these urban agglomerations are concerned, it was not within the legislative competence of the Andhra Pradesh Legislature to provide for imposition of ceiling on land situate within these urban agglomerations.
But, the Andhra Pradesh Act is not out side the legislative competence of the Andhra Pradesh Legislative in so far as lands situate in the other areas of the State of Andhra Pradesh are concerned.
Any other area in the State of Andhra Pradesh with a population of more than one lakh could be notified as an urban agglomeration under section 2(n) (A) (ii) of the Central Act but until it is so notified would not be an urban agglomeration and the Andhra Pradesh Legislature would have legislative competence to provide for imposition of ceiling on 1145 land situate within such area.
No sooner such area is notified to be an urban agglomeration, the Central Act would apply in relation to land situate within such area, but until that happens the Andhra Pradesh Act would continue to be applicable to determine the ceiling on holding of land.
The Andhra Pradesh Act came into force on 1st January 1975 and it was with reference to this date that the surplus holding of land in excess of the ceiling area was required to be determined and if there was any surplus it was to be surrendered to the State Government.
Therefore, in an area other than that comprised in the urban agglomerations referred to in section 2(n)(A) (i), land held by a person in excess of the ceiling area would be liable to be determined as on 1st January 1975 under the Andhra Pradesh Act and only land within the ceiling area will be allowed to remain with him.
It is only in respect of land remaining with a person whether an individual or a family after the operation of the Andhra Pradesh Act, that the Central Act would apply if and when the area in question is notified to be an urban agglomeration under section 2(n)(A)(ii) of the Central Act.
[1155 G H, 1156 A G] Merely because an area may possibly in the future be notified as an urban agglomeration under section 2(n) (A) (ii) of the Central Act, the Andhra Pradesh Legislature would not cease to have competence to legislate with respect to ceiling on land situate in such area even though it is not an urban agglomeration at the date of the enactment of the Andhra Pradesh Act.
Undoubtedly, when an area is notified as an urban agglomeration under section 2(n) (A) (ii), the Central Act would apply to land situate in such area and the Andhra Pradesh Act would cease to have application but by that time the Andhra Pradesh Act would have already operated to determine the ceiling on holding of land falling within the definition in section 3(j) of that Act and situate within such area.
Therefore, the whole of the Andhra Pradesh Act is neither ultravires nor void as being outside the area of legislative competence of the Andhra Pradesh Legislature.
It is only in respect of land situate within the urban agglomerations referred to in section 2(n) (A)(i) of the Central Act that the Andhra Pradesh Act would not apply but it would be fully applicable in respect of land situate in all the other areas of the State of Andhra Pradesh.
[1156 G X 1157 A B] 4.
A divided minor cannot be excluded from the 'family unit ' as defined in section 3(f) of the Andhra Pradesh Act.
That would be flying in the face of sections 3(f) and 4 of the Andhra Pradesh Act.
It is true that a partition affected prior to 2nd May 1972 is not invalidated by the Andhra Pradesh Act and therefore any property which comes to the share of a divided minor son would in law belong to him and would not be liable to be regarded as part of joint family property.
But under the definition of family unit in section 2(f) the divided minor son would clearly be included in the family unit and by reason of section 4 his land whether self acquired or obtained on partition would be liable to be clubbed with the land held by the other members of the family unit.
The land obtained by the divided minor son on partition would be liable to be aggregated with the lands of other members of the family unit not because the partition is invalid but because the land held by him howsoever acquired is liable to be clubbed together with the lands of others for the purpose of applying the ceiling area to the family unit.
[1157 C, F HI 14 610 SCI/80 1146 5.
The Andhra Pradesh Act is admittedly an agrarian reform legislation and it is protected against challenge on the ground of infraction of Article 14, 19 and 31 by the protective umbrella of Article 31A. [1158 B C] 6.
The definition of 'family unit ' is nor violative of Article 14 of the Constitution by including ' a minor son in the family unit while excluding a major son from it.
[1158 A] Seth Nand Lal vs State of Haryana.
[1980] 3 SCR p. 1181 followed.


Input:
Civil Appeals Nos. 1741 and 1742 of 1981.
From the Judgment and order dated 12.3.1981 of the Punjab and Haryana High Court in R.S.A. No. 1822 of 1978.
Harbans Lal and Balmukand Goel for the Appellants.
Anil Dev Singh, N.D. Garg and Rajiv Garg for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
How far an order directing eviction of a person by the Revenue Court under section 77(3) of the Punjab Tenancy Act, 1887 (hereinafter called 'the Act ') operates as res judicata for a title suit filed by a person claiming to be a mortgagee and not a tenant of the alleged landlord, is the question that arises in this appeal by special leave from the Full Bench decision of the High Court of Punjab and Haryana dated 12th March, 1981 in second appeal.
By the impugned order and judgment the High Court has dismissed the appeal of the appellants and affirmed the judgment and order dated 7th September, 1978 of the Additional District Judge, Gurgaon reversing the judgment and order of Sub Judge 1st Class, Ballabgarh dated 4th of November, 1977 dismissing the suit of the respondent.
It appears that the appellants filed proceedings in the Court of Assistant Collector, 1st Grade, Ballabgarh seeking ejectment of the respondent from his lands on 29th July, 1975 under section 77(3) proviso 2(e) of the Act on the ground that the respondent tenant had H 96 defaulted in the payment of rent.
The suit was decreed on 29th October, 1976.
In execution of the decree the respondent was ejected from the suit land.
No appeal though provided under the said Act was filed by the respondent from the said decree.
The resondent, however filed a suit in the civil court against the appellants alleging that he fact was a mortgagee in possession of the suit land and not a tenant and that the decree of ejectment dated 29th of October, 1976 by the Revenue Court was without jurisdiction and, therefore, a nullity.
The respondent claimed to be restored the possession of the suit land from which he had been wrongly ousted by the Revenue Court.
The suit was dismissed by the learned Subordinate Judge on 4th November, 1977 holding that the claim of the respondent to be a mortgagee in possession of the suit land was wrong and that the order of the Revenue Court was perfectly in order and was within that court 's jurisdictional competence.
It was alleged that it was of binding nature on the respondent and was not capable to challenge the same in subsequent proceedings.
The claim, it was asserted, by the respondent in the subsequent suit, was barred by the principles of res judicata.
The respondent lost.
He filed an appeal against the said order of the learned Subordinate Judge.
The learned Additional District Judge, Gurgaon vide his order dated 7th September, 1978 reversed the findings of the trial court and decreed the suit of the respondent.
Against the said order of the learned Additional District Judge the appellants filed Regular Second Appeals which were placed for disposal before one of the learned Judges of the High Court of Punjab and Haryana at Chandigarh.
After hearing counsel for the parties the learned Judge was of the view that there were conflicting judgments on the points for determination in the case which were of importance and the matter was referred to the Hon 'ble the Chief Justice of the said High Court for the constitution of a larger bench for the determination of the points in controversy.
The question referred to a larger bench was whether, the decision of Rent Controller under the Rent Control Laws or a Revenue Court under section 77 of the Punjab Tenancy Act upon the relationship of landlord and tenant between the parties operates as res judicata and is not open to challenge in a subsequent suit or in other collateral proceedings between the parties.
The learned Chief Justice constituted a Full Bench of three learned Judges for resolving the conflict pointed out in the referring order.
The three learned Judges of the Full Bench have given three separate judgment and ultimately the case came to be decided in accordance with the majority view.
The order of the Full Bench was that in accordance with the majority view it was held that the decision of the Revenue Court under 97 Section 77 of the Punjab Tenancy Act upon the relationship of landlord and tenant between the parties would not operate as res judicata and it would be open to challenge in a subsequent suit or any other collateral proceedings between the parties.
The Full Bench thereafter directed the matter to go back to the learned single Judge for disposal in accordance with the decision of the Full Bench.
Aggrieved by the aforesaid order and decision the appellants have come up in appeal before this Court.
It may be mentioned that of the three learned Judges, Sandhawalia, CJ.
was of the view that it was to operate as res judicata, but the other two learned judges, namely, J.V. Gupta, J. and S.P. Goyal, J. held contrary views.
It is the propriety and the validity of the majority view of the Full Bench which calls for an examination in this appeal.
C In order to appreciate the controversy in appeal it is necessary to refer to the relevant provisions of the said Act.
The preamble of the Act states that it was an Act to amend the law relating to the tenancy of land in Punjab.
These provinces of Punjab had the distinction between the occupancy tenants and tenants at will with the rest of its early revenue Code from the United Provinces.
The possession of a right to fixity of tenure by many cultivators in northern India was early recognised.
Indeed the fact that in Lower Bengal the connection of persons whom were recognised as proprietors with the land was often far more recent than that of the cultivators inevitably suggested that the latter had rights in the soil that required protection.
Fixity of tenure of resident cultivators at rents determined by authority was prominent feature of the Bengal settlement as originally planned.
Regulation XXVIII of 1803 professed to extend the Bengal system to the North Western Provinces, but it left the subject of tenant right in a vague and uncertain condition.
The provisions of Regulation VII of 1922 were more definite.
By its 9th section Settlement officers were required not only to prepare a record of "persons enjoying the possession and property of the soil, or vested with any heritable or transferable interest" in it, that is to say, of proprietors, but also of "the rates per bigha . demandable from the resident cultivators not claiming any transferable property in the soil whether possessing the right of hereditary occupancy or not".
It is not necessary to trace the history of these settlement laws which can be found in Douie 's Settlement Manual, 4th Edition.
Twelve years ' uninterrupted possession of a holding at the same rate of rent was considered as a sufficient proof of occupancy right in the United Provinces.
The twelve years ' rule was very generally adopted in early Punjab settlements, though the best H 98 revenue officers held that it should not be regarded as the sole criterion, and that the quality, as well as the length of occupation should be considered.
The Act in question was passed to amend the law of tenancy in Punjab which was later the object of the Act to protect the tenants from the exactions of the landlords The tenants as usual in other parts of the world were in many cases peculiarly liable to oppression or duress from their landlords and in order to protect them quite effectively from the possibility of any such oppression or duress the Act was passed.
The overall scheme of the Act is to provide speedy remedies with regard to disputes between the landlords and tenants and also under what circumstances that relationship comes to an end.
It is appropriate to bear in mind the whole basic question involved in this appeal is whether the courts created by this Act have limited power and jurisdiction or plenary powers and jurisdiction.
In this appeal we are concerned with the amplitude of the jurisdiction of the courts under section 77 of the Act which deals with Courts and suits cognizable by them.
Relevant portion of section 77 of the Act provides as follows: "77.
Revenue Courts and suits cognizable by them. (1) When a Revenue officer is exercising jurisdiction with respect to any such suit as is described in sub section (3), or with respect to an appeal or other proceeding arising out of any such suit, he shall be called a Revenue Court.
(2) . . . . . . . . (3) The following suits shall be instituted in, and heard and determined by, Revenue Courts, and no other Court shall take cognizance of any dispute or matter with respect to which any such suit might be instituted: Provided that (1) . . . . . . . . (2) . . . . . . . .
FIRST GROUP . .
SECOND GROUP . . 99 (e) suit by a landlord to eject a tenant;" A The controversy with which we are concerned in this appeal is a type of suits indicated in second group under clause (e), namely, suits by a landlord to eject a tenant The question of res judicata was analysed in the background of land acquisition proceedings by this Court in Raj Lakshmi Dasi and others vs Banamali Sen and others, There this Court observed that the right to receive compensation for property acquired in land acquisition proceedings as between rival claimants depended on the title to the property acquired and the dispute as to title was raised by the parties and had to be decided by the Land Acquisition Judge after contest, so this decision as to title operates as res judicata in a subsequent suit between the same parties on the question of title The binding force of a judgment delivered under the Land Acquisition Act depended on general principles of law and not on section 11 of the Civil Procedure Code, and the decision of a Land Acquisition Judge would operate as res judicata even though he was not competent to try the subsequent suit.
It has to be emphasised, however that the right to compensation depended upon the title, but here in the instant case the right to ejectment existed only if the relationship of landlord and tenant existed.
The Revenue Court did not have jurisdiction whether the claimant was the landlord to be entitled to eject the tenant.
Our attention was drawn by Sree Harbans Lal, learned counsel appearing for the appellants to section 98 of the Act, as to the power of the Revenue Court to refer to the Civil Court a decision by the Revenue Court if it thought proper and also to section 99, where there is power to refer to High Court question as to jurisdiction.
These provisions in our opinion, do not in any way affect the question whether the decision of the Revenue Court under the Revenue Act can operate as res judicata in certain cases like the present.
The limits of the jurisdiction would be apparent by the fact that in all suits by a landlord to reject a tenant, do not encompass suits to decide whether a person is a tenant or not or whether the plaintiff is a landlord or not.
The question was answered by this Court in Om Prakash Gupta vs Rattan Singh and another, l 19641 1 S.C.R. 259 where Sinha, C.J. dealing with the Delhi Rent Control Act observed at pages 264 and 265 as follows: "The most important question that arises for determination 100 in this case is whether or not the Rent Control authorities had jurisdiction in the matter in controversy in this case ordinarily it is for the Civil Courts to determine whether and, if so, what jural relationship exists between the litigating parties But the Act has been enacted to provide for the control of rents and evictions of tenants, avowedly for their benefit and protection.
The Act postulates the relationship of landlord and tenant which must be a pre existing relationship.
The Act is directed to control some of the terms and incidents of that relationship.
Hence, there is no express provision in the Act empowering the Controller, or the Tribunal, to determine whether or not there is a relationship of landlord and tenant.
In most cases such a question would not arise for determination by the authorities under the Act.
A landlord must be very ill advised to start proceedings under the Act, if there is no such relationship of landlord and tenant.
If a person in possession of the premises is not a tenant, the owner of the premises would be entitled to institute a suit for ejectment in the Civil Courts, untrammelled by the provisions of the Act.
It is only when he happens to be the tenant of premises in an urban area that the provisions of the Act are attracted." (Emphasis supplied. ) In Shri Raja Durga Singh of Solan vs Tholu, [19631 2 S.C.R. 693, this Court had occasion to consider the question of res judicata in the background of the jurisdiction of the Court.
That was a case under section 77 of the Punjab Tenancy Act.
In that case the appellant had filed a suit before the Civil Court for the ejectment of the respondent therein on the ground that they were licensees.
The respondents claimed that they were occupancy tenants and contended that under section 77 of the Punjab Tenancy Act, 1887, the suit was triable by a revenue court only and not by the civil court.
The trial court and the first appellate court decreed the suit holding that the respondents were not tenants.
On second appeal the Judicial Commissioner held that the respondents were occupancy tenants and that the civil court had no jurisdiction to entertain the suit.
It was held by this Court that the civil court had jurisdiction to entertain the suit and section 77 of the Punjab Tenancy Act was applicable "only to suits between landlord and tenants where there was no dispute that the person cultivating the land was a tenant".
But where the status of the defendant as a tenant was not admitted by the landlord, section 77 did not bar a suit in a civil court.
This Court held that it would, therefore, be reasonable to infer 101 that the legislature barred only those suits which form the cognizance of a civil court where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant.
This is precisely what has been held in the two decisions of the Lahore High Court where there was reference at pages 698 699 of the report.
In the first of these two cases.
Tek Chand J. had observed: "It is obvious that the bar under clause (4) is applicable to those cases only in which the relationship of landlord and tenant is admitted and the object of the suit is to determine the nature of the tenancy i.e. whether the status of the tenant falls under section 5, 6, 7 or 8 of the Act.
In that case the suit was instituted by someone claiming to succeed to the tenancy of certain land on the death of the occupancy tenant.
The learned Judge observed: 'In a suit like the one before us the point for decision is not the nature of the tenancy, but whether the defendant is related to the deceased tenant and if so whether their common ancestor had occupied the land.
If these facts are established, the claimant, ipso facto succeeds to the occupancy tenancy.
But if they are found against him, he is not a tenant at all. ' As these facts were not established the High Court held that the landlord was entitled to sue the defendant who had entered on the land asserting a claim to be a collateral of the deceased tenant but who failed to substantiate his claim.
This view was affirmed by a Full Bench consisting of five Judges in the other Lahore case.
In Daya Ram vs Jagir Singh, A.I.R 1956 H.P. 61 the same Judicial Commissioner who decided the appeal before us has expressed the view that where in a suit for ejectment the existence of the relationship of landlord and tenant is not admitted by the parties the Civil Court had jurisdiction to try the suit and that such a suit did not fall under section 77(3) of the Act.
In Magiti Sasamal vs Pandab Bissoi, [1962] 3 S.C.R. 673 this Court was considering the provisions of section 17(1) of the Orissa Tenants Protection Act, 1948 (3 of 1948).
The provisions of that section run thus: 'Any dispute between the tenant and the landlord as re 102 gards, (a) tenant 's possession of the land on the 1st day of September, 1947 and his right to the benefits under this Act, or (b) misuse of the land by tenant, or (c) failure of the tenant to cultivate the land properly, or (d) failure of the tenant to deliver to the landlord the rent accrued due within two months from the date on which it becomes pay able, or (e) the quantity of the produce payable to the landlord as rent, shall be decided by the Collector on the application of either of the parties. ' lt was contended in that case on behalf of the respondents who claimed to be tenants that suit for permanent injunction instituted by the appellant landlord was barred by the provisions of section 7(1).
Dealing with this contention this Court observed as follows. 'In other words, section 7(1) postulates the relationship of tenant and landlord between the parties and proceeds to provide for the exclusive jurisdiction of the Collector to try the five categories of disputes that may arise between the landlord and the tenant.
The disputes which are the subject matter of section 7(1) must be in regard to the five categories.
That is the plain and obvious construction of the words 'any dispute as regards '.
On this construction it would be unreasonable to hold that a dispute about the status of the tenant also falls within the purview of the said section.
The scheme of section 7(1) is unambiguous and clear.
It refers to the tenant and landlord as such and it contemplates disputes of the specified character arising between them.
Therefore, in our opinion, even on a liberal construction of section 7(1) it would be difficult to uphold the argument that a dispute as regards the existence of relationship of landlord and tenant falls to be determined by the Collector under section 7(1). ' " As regards the said observations, in so far as the essential facts are concerned, precisely the same is the position in the instant appeal.
Here the respondent is claiming to be a mortgagee in possession and not a tenant in possession.
In Magiti Sasamal vs Pandab Bissoi, , the appellant had filed in the Civil Court a suit for permanent injunction restraining the respondents from entering the lands in suit on the allegation that the lands belonged to him and were in his cultivatory possession for many years and the respondents had 103 no right or title and had never cultivated them.
The respondents contended that they were tenants of portions of the said lands and were in cultivating possession of the same as tenants.
The question which arose for decision was whether having regard to the provisions of section 7(1) of the Orissa Tenants Protection Act, 1948, the Civil Court had jurisdiction to entertain the suit which involved a dispute as to the relationship of landlord and tenant between the parties.
It was held that even on a liberal construction of section 7(1) of the Act, it cannot be held that disputes as regards the existence of the relationship of landlord and tenant fall to be determined by the Collector under that section.
Disputes which are entrusted to the Collector under section 7(1) are the simple disputes specified therein in the five categories and do not include a serious dispute as to the relationship between the parties as landlord and tenant.
It is well settled that ouster of jurisdiction of civil courts should not be inferred easily.
It must be clearly provided for and established.
This question was again viewed in the background of the in Lal Chand (dead) by Lrs.
and others vs Radha Kishan, [1977] 2 S.C.R. 522, where this Court reiterated that section 11 was not exhaustive and the principle which motivates that section could be extended to cases which do not fall strictly within the letter of the law.
This Court further reiterated that the principle of res judicata was conceived in the larger public interest which required that all litigation must, sooner than later, come to an end.
This Court in the State of Tamil Nadu vs Ramalinga Samigal Madam, A.I.R. 1986 S.C.794 has analysed the position in paragraph 8 as follows: "The principles bearing on the question as to when exclusion of the Civil Court 's jurisdiction can be inferred have been indicated in several judicial pronouncements but we need refer to only two decisions.
In Secretary of State vs Mask and company, A.I.R. 1940 P.C. lOS at p. 110 the Privy Council at page 236 of the Report has observed thus: 'It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied.
It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provi 104 sions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
In Dhulabhai vs State of Madhya Pradesh, [ ; Hidayatullah, C.J., speaking for the Court, on the analysis of the various decisions cited before the Court ex pressing diverse views, called out as many as 7 propositions; out of them the first two which are material for our purposes are these: '(1) Where the statute gives a finality to the orders of the special tribunal the civil Court 's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit.
Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive.
In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not '.
Applying the aforesaid principles, it appears to us that if the dispute was as to the nature of the relationship of landlord and tenant 105 between the parties, the Revenue Court under the Punjab Tenancy A Act had no jurisdiction when there was admitted position, the relationship of landlord and tenant was accepted, the remedies and rights of the parties should be worked out under the scheme of the Act.
A salutary and simple test to apply in determining whether the previous decision operated as res judicata or on principles analogous thereto is to find out whether the first court, here the Revenue Court could go into the question whether the respondent was a tenant in possession or mortgagee in possession.
It is clear in view of langugage mentiond before that it could not.
If that be so there was no res judicata.
The subsequent civil suit was not barred by res judicata.
In that view of the matter, we are of the opinion that the High Court of Punjab and Haryana was right in holding that there was no res judicata so far as the second suit based on the assertion of the title of the respondent was concerned.
The appeals must, therefore, fail and are accordingly dismissed with costs.
D N.P.V. Appeals dismissed.

Output:
A suit was filed by the appellants in the Court of the Assistant Collector seeking ejectment of the respondent tenant from his lands, under section 77(3) proviso 2(e) of the Punjab Tenancy Act, 1887 on the ground that he had defaulted in the payment of rent, and it was decreed.
In execution of the decree, the respondent was ejected from the suit land.
No appeal was filed from the said decree but the respondent filed a suit in the Civil Court against the appellants alleging that he was in fact a mortgagee in possession of the suit land and not a tenant and that the decree of ejectment passed by the Revenue Court was without jurisdiction and, therefore, a nullity, and claimed restoration of the possession of the suit land from which he had been wrongly ousted by the Revenue Court.
The suit was dismissed by the Subordinate Judge holding that the claim of the respondent to be a mortgagee in possession of the suit land was wrong and that the order of the Revenue Court was perfectly in order and within that court 's jurisdictional competence and that it was of a binding nature on the respondent and was not open to challenge in subsequent proceedings.
The appellant asserted that the claim by the respondent in the subsequent suit was barred by the principles of res judicata.
The suit was dismissed.
In appeal, the Additional District Judge reversed the findings of the trial court and decreed the suit of the respondent.
The appellants filed regular second appeals before the High Court.
94 A Single Judge of the High Court was of the view that, in view of the conflicting judgments on the points for determination in the case, the matter required to be referred to a larger bench.
The Full Bench, by a majority view, held that the decision of the Revenue Court under section 77 of the Punjab Tenancy Act upon the relationship of landlord and tenant between the parties would not operate as res judicata and it would be open to challenge in a subsequent suit or in other collateral proceedings between the parties, and remitted the matter back to the Single Judge for disposal in accordance with the above decision.
The question for consideration in the appeals by Special Leave before this Court was: as to how far an order of eviction of a person by the Revenue Court under section 77(3) of the Punjab Tenancy Act, 1887 operated as res judicata for a title suit filed by a person claiming to be a mortgagee and not a tenant of the alleged landlord.
Dismissing the appeals by special leave, this Court, ^ HELD: 1.
The High Court was right in holding that there was no res judicata so far as the second suit based on the assertion of the title of the respondent was concerned.
[105C D] 2.1 The overall scheme of the Act is to provide speedy remedies with regard to disputes between the landlords and tenants and also under what circumstances that relationship came to an end.
Sections 98 and 99 do not in any way affect the question whether the decision of the Revenue Court under the Revenue Act can operate as res judicata in certain cases.
The limits of the jurisdiction would be apparent by the fact that all suits by a landlord to eject a tenant do not encompass suits to decide whether a person was a tenant or not or whether the plaintiff was a landlord or not.
[98C; 99 F G] 2.2 ouster of jurisdiction of Civil Courts should not be inferred easily.
It must be clearly provided for and established.
If the dispute was as to the nature of the relationship of landlord and tenant between the parties, the Revenue Court under the Punjab Tenancy Act had no jurisdiction; when there was admitted position, the relationship of landlord and tenant was accepted, the remedies and rights of the parties should be worked out under the scheme of the Act.
[103C D] 2.3 A salutory and simple test to apply in determining whether the previous decision operated as res judicata or on principles analogous thereto was to find out whether the first court could go into the question 95 whether the respondent was a tenant in possession or mortgagee in A possession.
In view of the language of section 77 it is clear that it could not and, therefore, there was no res judicata.
The subsequent civil suit was.
therefore, not barred by res judicata.
[105B C] Raj Lakshmi Dasi and others vs Banamali Sen and others, ; Om Prakash Gupta vs Rattan Singh and another, ; Shri Raja Durga Singh of Solan vs Tholu; , ; Magiti Sasamal vs Pandab Bissoi, ; Lal Chand (dead) by Lrs.
and others vs Radha Kishan, [1977] 2 SCR 522 and State of Tamil Nadu vs Ramalinga Samigal Madam; , , referred to.